HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dimitriy Danilov
Applicant
-and-
International Financial Data Services-Canada and
Marlee McNeil
Respondents
Reconsideration
Adjudicator: Andrew M. Diamond
Indexed as: Danilov v. International Financial Data Services Canada
WRITTEN SUBMISSIONS
Dimitriy Danilov, Applicant ) Self-represented
[1] This Decision addresses a Request for Reconsideration of the Tribunal’s Decision 2012 HRTO 722 dated April 11, 2012, dismissing the Application after a summary hearing.
[2] On May 8, 2012, the applicant filed a Request for Reconsideration under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).
45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.
(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.
3Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.
4The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
5As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.
ANALYSIS
6The applicant submits that the decision of the Tribunal should be reconsidered because:
There are new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier; and
The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance
I will deal with each of these claims in turn.
New Evidence
7In his request for reconsideration the applicant submits that:
I have the evidence that respondents know or ought to know about my mental disability. Also, some additional evidence (video documents) could been provided, as it can found that evidence had not enough to prove my position.
However, having made this submission as grounds for reconsideration, the applicant then fails to advise the Tribunal what the new evidence is, what it would show and why it is that it was unavailable to him at the time of the summary hearing. As a result I find that the request for reconsideration must fail on this ground
Conflict of Jurisprudence with General or Public Importance
8The Tribunal’s, Request for Reconsideration “Form 20” has four boxes which set out the basis for the reconsideration request; and the party applying for reconsideration is asked to check all of the boxes that apply to their request. In addition to the new evidence box, the applicant also checked the box that indicates that the decision is in “conflict with established case law and there is a matter of general or public importance”. However, having checked this box the applicant does not make any submissions as to which other cases of the Tribunal are in conflict with the decision to be reconsidered or what the general or public importance of this matter is.
9Nevertheless, while not directly tied to the grounds of conflicting decisions the applicant does submit that the:
Tribunal should weigh the evidence of both sides, including the credibility and witnesses before making a determination about the breach of the Code. Respondents did not provide even one document to confirm their position, all of the documents that were considered in the hearing were from me.
10It would appear that this is a claim of procedural unfairness, namely that the Tribunal did not hear the witnesses and the evidence of the respondents prior to making its decision to dismiss the claim. Such an argument is based on a misapprehension of the nature of a summary hearing and the more general principle that the burden of proving that a prohibited ground was a factor in a respondent’s decision or action lies on an applicant, who must establish a connection between the disadvantage and the ground on a balance of probabilities. As set out in paragraph 2 of the decision of April 11, 2012:
The summary hearing is intended to provide an opportunity for early determination of whether there is a reasonable prospect the application can succeed…
And at paragraph 15:
I must determine whether the applicant has a reasonable prospect of showing that the respondents’ decision not to hire the applicant was based in any way on the fact that the applicant had a disability.
11In other words at a summary hearing the Tribunal will generally evaluate the evidence which the applicant has or anticipates they would have to call at the merits hearing to support their application. When an applicant has had a chance to fully outline what evidence he or she still intends to call and the basis on which he or she submits the Application can succeed, but there is no reasonable prospect that a violation of the Code would be found, the Application should be dismissed. See, for example: Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777.
12The summary hearing process is not generally an exercise in weighing competing evidence or credibility. The finding of the Tribunal on the summary hearing was that, “there is no evidence that the respondents had any knowledge of the applicant’s disability before, during or after his job interview…” The only issue of credibility that was raised at the summary hearing was in fact raised by the respondents, as set out at paragraph 5 of the decision where the respondents deny that a job offer was made. As is stated in the decision the summary hearing “must proceed on the basis that the applicant would be able to prove that a conditional offer of employment was made subject to the necessary background check”. In other words the only credibility issued raised by either party was settled, for the purposes of the summary hearing, in favour of the applicant.
Decision
13The applicant has cited two reasons why the original decision should be reconsidered; however he has provided no evidence, argument or case law to support
such a reconsideration. As a result I am not satisfied that the Tribunal should exercise its discretion in this case and as a result the request for reconsideration is denied.
Dated at Toronto, this 19th day of June, 2012.
“Signed by”
Andrew M. Diamond
Member