Rotimi Otubela v. Primary Response (Ontario) Inc., 2012 HRTO 1504

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rotimi Otubela

Applicant

-and-

Primary Response (Ontario) Inc., S/O MacDonald, Robert Perry, Mayer Berger and Yvonne MacDonald

Respondents

RECONSIDERATION DECISION

Adjudicator: Michael M. Lerner

Date: August 1, 2012

Citation: 2012 HRTO 1504

Indexed as: Otubela v. Primary Response (Ontario) Inc.

Introduction

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal's Decision 2012 HRTO 562 dated March 22, 2012, which dismissed this Application.

2On April 16, 2012, the applicant filed a Request for Reconsideration of the Tribunal's Decision.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") provides as follows:

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.

4Under 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 (Practice Direction on Reconsideration, January 2008 amended June 2008).

5The 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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to the Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in affordance with the Rules. Rule 26.5 of the Rules provides:

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 have been obtained earlier; or

b. the party seeking the 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 to 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.

9In his Request for Reconsideration, the applicant summarizes his previous argument before the Tribunal at the summary hearing.

10The original Application makes specific reference to four separate incidents upon which the applicant relied to support his claim. The previous decision of the Tribunal dated March 22, 2012 dealt specifically with each of these alleged instances of discrimination.

11The first incident relates to an alleged conversation that the applicant overheard between two employees of the corporate respondent. The applicant repeats in his Request for Reconsideration essentially the identical argument, subject to one exception, that he previously made before the Tribunal at the Summary Hearing.

12The applicant's attempt to introduce new evidence at this stage of the proceeding offends Rule 25.5 of the Rules for Procedure as it is an attempt to introduce new facts or evidence that could potentially be determinative of the issue that were available to the applicant at the summary hearing to which he made no reference.

13The applicant in his request now refers to conversation between Security Officer MacDonald and himself upon his return to the security office. This position is in direct contradiction of the position he adopted in the course of the Summary Hearing when the applicant maintained he had no follow up conversation with either of the security officers involved in the conversation he overheard.

14With respect to the second and third incidents, no new facts or evidence that could potentially be determinative of the outcome have been raised. The applicant's previous submissions are repeated. There's no justification for a reconsideration of these matters.

15The fourth instance upon which the Application is grounded relates to the applicant's contention that he was wrongfully dismissed. This issue was fully canvassed by the applicant at the summary hearing. In the course of that proceeding, the applicant acknowledged that the corporate respondent had never formally terminated his employment. He further acknowledged that the corporate respondent explained to him, in full, the reason why he could not continue to work at the Sheridan Davis campus and why, as a result he was consequently offered a transfer to a different location. The conduct of the applicant following the offer of transfer is irrelevant to the issue of dismissal. In his own evidence, the applicant admitted that he had not been terminated. No new facts or evidence that could be determinative of the case have been raised.

16In a Request for Reconsideration, I am obliged to determine whether the material filed by the applicant in support of his Request for Reconsideration satisfies any of the criteria set out in Rule 25.5. I am unable to conclude that the applicant has satisfied the onus upon him.

17For all of the foregoing reasons, the applicant's Request for Reconsideration is denied.