Candice Jensen v. Lucijan Ulanowicz, 2012 HRTO 1441

Human Rights Tribunal of Ontario

B E T W E E N:

Candice Jensen

Applicant

-and-

Lucijan Ulanowicz

Respondent

RECONSIDERATION DECISION

Adjudicator: Naomi Overend

Date: July 24, 2012

Citation: 2012 HRTO 1441

Indexed as: Jensen v. Ulanowicz

WRITTEN SUBMISSIONS

Candice Jensen, Applicant

Self-represented

Introduction

1On March 19, 2012, the Tribunal issued its Decision in this Application, 2012 HRTO 559, granting the Application in part. The applicant has asked the Tribunal to reconsider its Decision.

2In the Decision under reconsideration, I found that the applicant, who rented commercial space from the respondent in which she ran her personal fitness business, had been subject to sexual harassment and sexual solicitation with respect to facilities by the respondent. I did not find that the breakdown of the relationship between the parties and the end of the commercial lease occurred for any reasons related to a ground under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. The Decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and

b. Other facts exist that outweigh the public interest in the finality of Tribunal decisions.

DECISION

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal's Rules.

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.

5The Tribunal has issued Rules of Procedure, which govern such requests, as well as a Practice Direction to provide guidance to the community on the Tribunal's exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). Rule 26 states in part:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

6The 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.

7As 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.

8I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration. With respect to the first ground, the test requires that the decision be in conflict with existing Tribunal case law or procedure and be a matter of general or public importance. The applicant has not pointed to any case law or procedure, nor has she made submissions that the conflict is of general or public importance.

9The applicant's reconsideration submissions relate to why she feels she was the victim of harassment and discrimination, but are, in essence, the same arguments she made before the Tribunal in the first instance. The Tribunal's Practice Direction makes it clear that reconsideration is not an appeal.

10Moreover, the applicant appears to be using her Request for Reconsideration to increase the damages she is seeking. Finally, the applicant makes allegations about the difficulty she encountered in enforcing the remedy awarded by the Tribunal. These issues are not appropriately part of the reconsideration process.

11In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal's Decision. The Request is denied.