Fern Ahearn v. Dr. Sahar Rakshanfar Dentistry Professional Corporation c.o.b. North Hill Dental Center, 2012 HRTO 2405

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fern Ahearn

Applicant

-and-

Dr. Sahar Rakshanfar Dentistry Professional Corporation

c.o.b. North Hill Dental Center

Respondent

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: December 28, 2012

Citation: 2012 HRTO 2405

Indexed as: Ahearn v. North Hill Dental Center

Introduction

1This is a Reconsideration Request of a decision on a breach of settlement Application, issued on November 19, 2012 (2012 HRTO 2166). The respondent, North Hill Dental Center, seeks reconsideration.

2In the November 19, 2012 decision, the Tribunal found that, despite having agreed in written Minutes of Settlement to pay the applicant a total of $8,000.00 in four instalments, the respondent had failed to honour its commitment after paying an initial instalment of $2,000.00. Instead, according to its Response to the applicant’s breach of settlement Application, the respondent indicated that it believed the applicant had breached the non-disparagement clause contained in the Minutes and proposed that if the applicant agreed to participate in a “voluntary truth verification process” and the results satisfied the respondent, it would be prepared to resume payments of the monies owed under the Minutes of Settlement.

3The Application for breach of settlement was granted and the Tribunal found that the respondent was not entitled to set additional conditions, such as “passing” a lie detector test, as a prerequisite for it honouring commitments made in binding Minutes of Settlement. It was ordered to pay the balance of the settlement funds owing as well as an additional sum of $1,000.00 to the applicant within seven days of the breach of settlement Decision.

4The respondent, who did not attend the hearing, has now filed a Request for Reconsideration. The Request for Reconsideration is denied for the following reasons.

5Section 45.7 of the Human Rights Code, R.S.O. 1990 c. H.19 (the “Code”), allows any party to a proceeding before the Tribunal to request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.

6It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which states in part:

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.

7The respondent organization, a dental office, checked off the box indicating that it was entitled to notice but did not receive notice. In the box below, only the following information is added:

I did not receive any response after sending my last 2 letters a copy of which is sen (sic) with this letter

8It is not clear whether this sentence means that the respondent did not receive a response from the applicant to correspondence sent to her or whether the sentence refers to something else altogether.

9The Tribunal’s records show that a Notice of Confirmation of Hearing was sent to the address provided by the respondent and no correspondence has been returned as undeliverable.

10The respondent does not indicate that it was not aware of the hearing date, despite the following paragraph contained in the November 19, 2012 decision:

The Notice of Confirmation of Hearing, dated January 26, 2012, was sent to the address provided to the Tribunal by the respondent and has not been returned as undeliverable. I am satisfied that the respondent had proper and timely notice of the proceedings. After allowing the respondent an extra half hour to arrive, the hearing proceeded in the absence of the respondent.

11Given the circumstances and the lack of any supporting information regarding the ground for reconsideration cited by the respondent, the Request for Reconsideration is denied.