Blakely v. Queen’s University, 2012 HRTO 2244

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Blakely

Applicant

-and-

Queen’s University

Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: November 30, 2012

Citation: 2012 HRTO 2244

Indexed as: Blakely v. Queen’s University

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2012 HRTO 1177, dated June 14, 2012, which dismissed this Application.

2On July 13, 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:

(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 last amended March 2010).

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 an 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 for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 25.5 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 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.

9As a result, I need 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. The applicant relies upon the criterion identified in Rule 25.5(a), namely that “there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier”.

10Having reviewed the applicant’s submissions in support of his Request for Reconsideration, there is no indication of any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. Rather, the applicant variously requests: that evidence already heard by me be re-considered and re-assessed; that at least two witnesses be called back for re-questioning; that documents already sought and ruled to be irrelevant and inadmissible in this proceeding be reviewed; and that witnesses already ruled not to have relevant or admissible evidence be allowed to testify.

11For example, the applicant requests that I reconsider my assessment of the evidence regarding a “faculty meeting” about which Professor Aziz testified and about a comment alleged to have been made by Professor Rettig. The evidence relating to this issue is thoroughly canvassed in my Decision at paras. 32 to 36. I see no reason to change my assessment of this evidence.

12The applicant notes that there is no audio recording for the first day of hearing when Professor Aziz gave her evidence-in-chief. The Tribunal does not typically make audio recordings of its hearings, but will do so as an accommodation if such a request is made in advance and is properly supported. As noted in my Decision, no request for there to be an audio recording of the hearing as an accommodation was made until after the first day of hearing already had been completed. In any event, I am used to conducting hearings without the benefit of any audio recording and took careful and thorough notes of Professor Aziz’s testimony. The lack of an audio recording for the first day of hearing is not a reason that supports reconsideration of a final decision.

13The applicant also submits that at the first day of hearing, Professor Aziz was confused in her evidence as between two different meetings: the “faculty meeting” that she alleges occurred sometime in 2001 and a meeting with Dean Spronk in the summer of 2007. It is my view that there was no such confusion, particularly as I ruled that Professor Aziz’s evidence regarding the meeting with Dean Spronk was inadmissible for the reasons set out in a Case Assessment Direction issued to the parties on November 29, 2011. In my view, Professor Aziz’s evidence-in-chief on the first day of hearing regarding what is alleged to have been said at a “faculty meeting” in 2001 was clear, and she then changed her evidence when cross-examined when the hearing resumed on January 13, 2012.

14The applicant also refers to evidence given by Professor Rettig that he was upset about the situation in relation to the applicant. I heard this evidence and understood Professor Rettig to be referring to his vague recollection that he had mentioned the applicant’s learning disability in response to some criticism about the applicant’s teaching. This does not alter my ultimate finding, which was that having considered all of the evidence before me, I was not satisfied that a meeting occurred as testified to by Professor Aziz or that Professor Winton was present on the occasion vaguely recalled by Professor Rettig (see para. 36). This finding was made in the context of my consideration of whether the evidence supported that Professor Winton was aware of the applicant’s learning disability at the time the decision was made not to hire him as a sessional adjunct instructor in March 2007. I found that the evidence did not support such a finding, and in any event, that there were credible and non-discriminatory reasons to support the hiring of Mr. Oxley over the applicant for this position.

15The applicant also asserts in his reconsideration submissions that Professor Rettig “lied” when he testified that he did not recall being “bullied” by other faculty members when he tried to bring in a semester system. This is what is known in law as a collateral issue, which is not relevant to the main issue before me for determination. While a party may pursue (to some extent) collateral issues on cross-examination in order to challenge the credibility of a witness, the rule is that you are stuck with the witness’ answers and cannot introduce evidence on a collateral issue to try to impeach a witness’ answers. The reason for this is to avoid a hearing or trial turning into an endless succession of mini-hearings on collateral issues that are not directly relevant to the main issue for determination. In this case, Professor Rettig testified that he did not recall being “bullied” and the applicant was stuck with that answer. I do not regard this as having any particular bearing on the main issue before me, particularly as Professor Rettig played no role in the hiring decision made in March 2007.

16There is no proper basis in the material filed to support either Professor Aziz or Professor Rettig being recalled as witnesses to be questioned again. These two witnesses already had a full and fair opportunity to provide their evidence at the hearing and to be questioned by me as the Vice-chair and by all parties.

17The applicant also requests that all documents or recordings of Professor Aziz’s complaints of discrimination to the Queen’s University Human Rights Office be reviewed and that a human rights advisor from that office be questioned about her knowledge of Professor Aziz’s complaints. Complaints made by Professor Aziz about alleged discrimination that she experienced are not relevant to the issue before me. The issue as raised by the applicant is that he experienced discrimination because of his association with Professor Aziz, who is a member of a racialized group. I addressed this allegation in my Decision at paras. 58 to 62. There was no doubt from the evidence before me that there was tension and hostility in the Fine Art program involving Professor Aziz that had given rise to a “chilly climate”. But the issue for me was whether the applicant’s association with Professor Aziz was a factor in the hiring decision made in March 2007. For all of the reasons expressed in my Decision, I found it was not. It is my view that documents or other evidence regarding complaints made by Professor Aziz would not assist in my determination, and I see no reason to change my findings or re-open the hearing in this matter.

18The applicant also requests that a former Queen’s University Faculty Association (“QUFA”) Grievance Advisor be questioned about human rights complaints made either by the applicant himself or by Professor Aziz. The applicant’s request to call this individual as a witness in this proceeding already was determined by me in a Case Assessment Direction dated October 11, 2011, and I denied this request on the basis that no link or connection had been made between this individual’s involvement and the hiring decision made in March 2007. There is no basis in the applicant’s reconsideration submissions to change my decision in this regard.

19Finally, the applicant raises the fact that he was denied access to the Human Rights Legal Support Centre (“HRLSC”) due to its policy of not representing applicants involved in transitional applications, and that he was not represented by legal counsel at the hearing. This Tribunal has no control over or involvement in the policies of the HRLSC. That said, this Tribunal often deals with self-represented parties, either as applicants or respondents, and has adopted an active adjudication approach with greater involvement of the adjudicator in the hearing process in order to ensure fairness to all parties. It is my view that the hearing in this matter was fair and that the relevant evidence was thoroughly canvassed before me.

20As a result, having reviewed and considered the applicant’s Request for Reconsideration, I find that this request does not set out any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, nor does it engage any of the other potential grounds for reconsideration.

21For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.