HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Richard Banigan Applicant
-and-
Sheridan College Institute of Technology Respondent
RECONSIDERATION DECISION
Adjudicator: Jay Sengupta
Indexed as: Banigan v. Sheridan College
WRITTEN SUBMISSIONS
Richard Banigan, Applicant ) On His Own Behalf
Sheridan College Institute of Technology, ) Brenda Bowlby, Counsel Respondent )
Introduction
1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), in which he alleged discrimination in respect of employment on the basis of age and association with a person identified by a Code ground and reprisal. Specifically, he alleges that he was not interviewed for three positions that he applied for with the respondent college for discriminatory or retaliatory reasons.
2Upon receipt of the Application, the Tribunal directed that the respondent provide a brief explanation of why the applicant did not receive interviews for the three positions that he says he applied for in his Application. A summary hearing was also scheduled. The purpose of the summary hearing was to hear the parties’ submissions on two questions:
(a) whether some or all of the allegations in the Application are outside the jurisdiction of this Tribunal pursuant to s.53(8) of the Code; and
(b) with respect to the matters found to be within the jurisdiction of the Tribunal, whether the Application should be dismissed as having no reasonable prospect of success.
3A summary hearing teleconference call was scheduled for November 21, 2011. The teleconference was converted to an in person hearing at the request of the applicant. Following the summary hearing, the Application was dismissed by way of a Decision dated December 2, 2011.
4On January 4, 2012, the Tribunal received a Request for Reconsideration, dated December 23, 2011, from the applicant. Although not called on to do so, the respondent has filed a brief submission addressing one point made by the applicant in his Request for Reconsideration.
5The applicant argues that reconsideration is warranted in this case on two grounds; that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, and that other factors exist that would outweigh the public interest in the finality of Tribunal decisions.
6The Request for Reconsideration is denied for the reasons that follow.
Request for Reconsideration
7Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions:
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.
8Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration 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).
9Most relevant to this decision is Rule 26 which reads, in part, as follows:
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 and orders.
10The 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.
11As 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.
12The applicant has based his Request on Rule 26.5 (a) and (d).
13The applicant argues that the respondent has evidence that will establish that it discriminated against him in its possession to which he does not have access. He reiterates his view that he was “screened” out of the process for discriminatory reasons. He asks that the Tribunal order that this new evidence, consisting of, among other things, the resumes, cover letters, age, academic qualification, etc., of all applicants that passed the initial screening processes for the three positions for which he applied be released to him.
14He also argues certain evidence was submitted but not referred to such as a reference to Sheridan College’s Policy on Harassment and Discrimination that he suggests does not reflect the current state of the law and the possible evidence that could have been given by his wife, Janice.
15The applicant made no specific arguments in support of the second ground cited, namely factors that outweigh the public interest in the finality of Tribunal decisions.
16Although not required or directed to do so, the respondent provided its submissions in response to the applicant’s Request for Reconsideration as well as a copy of its current policy.
17The respondent argues that the applicant’s arguments do not meet the criteria set out in Rule 26.5(a). The applicant’s first argument, it submits, is a request that the Tribunal permit him to go on a fishing expedition in order that he may attempt to gather facts to prove his allegations of discrimination that he seeks rather than meeting his onus to establish a prima facie case of discrimination: to reverse the onus by requiring the respondent to prove that it did not discriminate against him.
18In addition the respondent also argues that the practice of the respondent College has been consistent with the Code since the Code changes with respect to age and that the policy had been changed officially in early 2010 but that some of the electronic links had not been changed as assumed. Finally, the respondent points out that the evidence of the applicant’s spouse, as described in his own materials, does not go to the issue of breach but remedy.
19Having reviewed the submissions of the parties, I find that the arguments raised by the applicant are essentially reiterations of positions that he articulated during the summary hearing and in his previous written materials. He has not made submissions that fall within the scope of Rule 26.5(a) and has not made any submissions that address Rule 26.5(d).
20In view of the above, I find no basis to grant reconsideration of the Tribunal’s Decision of December 2, 2011.
21The Request is denied.
Dated at Toronto this 24th day of January, 2012.
”signed by”______________
Jay Sengupta
Vice-chair