Khan v. Seneca College of Applied Arts and Technology, 2012 HRTO 1458

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wasi Khan Applicant

-and-

Seneca College of Applied Arts and Technology Respondent

RECONSIDERATION DECISION

Adjudicator: Naomi Overend

Date: July 25, 2012

Citation: 2012 HRTO 1458

Indexed as: Khan v. Seneca College of Applied Arts and Technology

WRITTEN SUBMISSIONS

Wasi Khan, Applicant

Self-represented

Introduction

1On April 12, 2012, the Tribunal issued its Decision, 2012 HRTO 729, dismissing the Application on the basis that there was no reasonable prospect that it would succeed. The applicant has asked the Tribunal to reconsider its Decision.

2In the Decision under reconsideration, I found that the applicant had no reasonable prospect of success of establishing that the respondent had stopped assigning him to teach a course in reprisal for having filed an earlier Application against it, contrary to s. 9 of 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 set out in his Request, 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 which is in conflict with the Decision.

9With respect to the second criteria cited -- that there are other factors that exist, which outweigh the public interest in the finality of decisions -- the applicant suggest that I seem “to be biased and prejudiced against the applicant.” The apparent basis for this assertion is that I did not afford the applicant the opportunity to obtain the respondent’s disclosure and cross-examine the respondent’s witnesses in an effort to prove his case.

10This has been addressed in the Decision, and it is not necessary to address this assertion here. Reconsideration is not an appeal in which the applicant might assert the same arguments in the hope of a different answer.

11Finally, the applicant has indicated that he has initiated three Freedom of Information requests in order to obtain information from the respondent. As of the date of his Request for Reconsideration, only one of those requests had been answered. The response, which the applicant appends to this Request, confirms the respondent’s information that it has not offered the course under consideration (OBR 250) since the summer of 2010.

12In the absence of any new information, there is no basis for determining whether “there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.” In any event, the applicant has not requested reconsideration on this basis.

13In 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.