Dobric v. Board of Directors of York Condominium Corporation #75, 2012 HRTO 505

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vaso Dobric Applicant

-and-

The Board of Directors of York Condominium Corporation #75 Respondent

RECONSIDERATION DECISION

Adjudicator: Alan G. Smith Date: March 9, 2012 Citation: 2012 HRTO 505 Indexed as: Dobric v. Board of Directors of York Condominium Corporation #75

WRITTEN SUBMISSIONS

Vaso Dobric, Applicant ) Self Represented

BACKGROUND

1The applicant filed this Application on April 13, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code") the applicant alleged, in essence, that the failure of the respondent to properly deal with noise complaints in his condominium was discriminatory.

2Pursuant to s. 43(2) of the Code and Rule 19A of the Tribunal's Rules of Procedure, a summary hearing by teleconference was held before me on November 30, 2011. The purpose of the summary hearing was to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that it would succeed.

3On January 23, 2012, the Tribunal issued a Decision, 2012 HRTO 171, dismissing the Application on the basis that, due to insufficient evidence of Code related discrimination, the application had no reasonable prospect of success if it were to go on to a full hearing. The applicant filed a Request for Reconsideration (the "Request") of that Decision on February 21, 2012.

4In his Request, the applicant appears to argue that the Decision should be reconsidered because he disagrees with the summary hearing process, in particular the fact that the respondent was not required to file a Response prior to the summary hearing.

ANALYSIS

5Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it reconsider its decision. The Tribunal 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.

7The applicant indicates that the Request is being made on the basis of both Rule 26.5 (a) and (c). However, since there are no new facts being alleged the applicant appears to base his argument for reconsideration on Rule 26.5(c) i.e., that the reasons for the decision to dismiss the Application are in conflict with established jurisprudence and the proposed reconsideration involves a matter of general or public importance.

8In such decisions as Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34, LaFortune v. Washington Mills Electro Minerals, 2009 HRTO 1706, Burns v. Employer's Choice Staffing of Canada, 2009 HRTO 1779, and Winterburn v. General Motors of Canada, 2011 HRTO 1053, 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 very limited exceptions.

9When decisions are made by the Tribunal, it is important that they be seen as final. Reconsideration does not provide parties with a "second kick at the can". It is a discretionary remedy exercised by the Tribunal in the limited circumstances set out in Rule 26.5. It is only where these circumstances exist that the Tribunal will reconsider its decision. For the Tribunal to grant reconsideration, the specific language of Rule 26.5 has to be satisfied. See, for example, Perron v. Conseil Scolaire de Distric Catholique des Aurores Boreales, 2009 HRTO 1945, Watson v. T. Boudreau Construction, 2010 HRTO 657 and Winterburn, above.

10The applicant has failed to meet the criteria set out in Rule 26.5. The Request for Reconsideration essentially repeats the arguments made in the Application. At its core, the Request for Reconsideration is therefore an attempt by the applicant to re-argue his case and appeal the Tribunal's decision. Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. Again see, LaFortune, Perron and Watson, above.

11The applicant's submissions refer to numerous incidents and communications between the applicant and the respondent, but these submissions do not explain why the incidents and communications relate to new evidence, to jurisprudence which conflicts with the Decision to dismiss the Application, or to anything that outweighs the public interest in the finality of Tribunal decisions.

12The applicant's apparent disagreement with the summary hearing process is also not a factor with respect to the reconsideration process. See, Huang v. University of Ontario Institute of Technology, 2011 HRTO 1651

13In particular, the Tribunal had directed in this case that the respondent was not required to file any Response to the Application. This is not in conflict with established Tribunal procedure in the context of summary hearings. It was not contrary to Tribunal jurisprudence or procedure for the Tribunal to have dismissed this Application after a summary hearing without requiring the respondent to produce any Response once the Tribunal concluded that there was no reasonable prospect of success for the Application. See, Huang, above.

14The summary hearing process is outlined in Rule 19A of the Tribunal's Rules of Procedure. In a summary hearing, the issue is whether the Application should be dismissed in whole, or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed.

15As stated in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paragraphs 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

16At the summary hearing, the applicant was provided full opportunity to make submissions with respect to whether there was evidence to link the events described in the Application with the allegations of discrimination. The applicant completed his oral submissions, and the Decision dealt with them.

17Finally there is no basis to suggest that the Reconsideration of the Decision constitutes a matter of general or public importance so as to satisfy the second criteria for reconsideration pursuant to Rule 26.5(c).

ORDER

18The Request for Reconsideration is dismissed.