Banigan v. Sheridan College Institute of Technology and Advanced Learning, 2013 HRTO 1113

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Banigan

Applicant

-and-

Sheridan College Institute of Technology and Advanced Learning

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: June 24, 2013

Citation: 2013 HRTO 1113

Indexed as: Banigan v. Sheridan College Institute of Technology and Advanced Learning

WRITTEN SUBMISSIONS

Richard Banigan, Applicant

Self-represented

1These are three Applications filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of age and association with a person identified by a Code ground. These Applications were dismissed in 2013 HRTO 707 because the first two of them were an abuse of process and had been appropriately dealt with in a prior proceeding. The third of them was dismissed because it had no reasonable prospect of success. In the Decision, I also found that the applicant was a vexatious litigant and ordered that he not be entitled to file an Application against these respondents without leave of the Tribunal. The applicant has filed a Request for Reconsideration ("Request") of the Decision pursuant to section 45.7 of the Code.

2The Request is denied.

3Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal's Rules.

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.

4The 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). Most relevant to this Decision is Rule 26 which states:

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.

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 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.

7The applicant argues that the factors outlined in Rule 26.5 (a), (c) and (d) are present in this case. The applicant also argues that there was a procedural irregularity in the manner in which the request that he be declared a vexatious litigant was brought by the respondent.

8Dealing with this last submission first, the applicant alleges that the Request was improperly launched in that no Form 12 was filed as he did not receive a Statement of Delivery. The applicant also states that he responded to this submission in his submissions filed on January 28, 2013. The applicant then states as well that he did not use the Form 13 because there was no Form 12 filed. The applicant argues that the respondent found a way to get around the Tribunal's Rules of Procedure. The applicant argues that this is unfair and unwarranted.

9It is not clear what point the applicant is making with this submission. The Forms the applicant refers to relate to a Request for a Tribunal Ordered Inquiry. This was not the nature of the respondent's request. The respondent in making the request using a Form 10 used the appropriate Form. In any event, the applicant does not allege that he did not receive the Form 10 in which the respondent's request was made and there can be no doubt that he was aware of the issue because the fact that it was an issue to be determined at the hearing was made clear to him in various communications from the Tribunal.

10The respondent filed its request on September 5, 2012. It was delivered to the applicant. On September 10, 2012 the Tribunal directed that this issue be considered at the hearing on September 21, 2012. In 2012 HRTO 1816 dismissing the Application because the applicant did not attend at the September 21, 2012 hearing the fact that this was an issue before the Tribunal was noted. This advice to the parties was confirmed again in 2012 HRTO 2306 where I reconsidered 2012 HRTO 1816 and the parties were on notice again that this issue was before the Tribunal. Finally of course the applicant has acknowledges that he was aware that the issue was to be addressed.

11The remainder of the applicant's submissions largely repeat his submissions made in this proceeding which were considered in coming to the conclusions I did in the Decision. The applicant does not address the primary basis for the Decision dismissing the Applications as an abuse of process in the case of two of the Application and that the third had no reasonable prospect of success. It is important to note at the outset, that the issues raised were the subject of submissions before the Tribunal, and dealt with in the Decision. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 above, the Tribunal held that reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

12The applicant does argue that his current health status was not considered and that it establishes discrimination. The applicant did make submissions about his current health status which he claims is a consequence of the stress of this case. The submissions were not considered explicitly because they were not relevant to the preliminary issues being considered by the Tribunal. I would also observe that merely because someone's health is impacted by ongoing litigations is not evidence of discrimination.

13In his submissions the applicant continues to raise issues from the long distant past including alleged reprisals in 1998, 1992 and alleged evidence tampering in the context of a grievance arbitration in the mid 1980's amongst other alleged incidents of uncertain age. The applicant takes issue with my conclusion that the applicant is in part attempting to re-litigate the arbitrations from the mid 1980's and then makes further submissions about those arbitrations.

14The applicant also argues that he has new evidence that was not available to him prior to January 24, 2012 and before 2011 HRTO 2164 dismissing what I referred to as the Prior Application which raised the same issues as in the first two of these Applications. The applicant argues that he could not discover this new evidence because he did not know the name of the incumbent in the position at issue. This issue was raised and dealt with in the Decision.

15The applicant argues that evidence related to a telephone call in 1992 which has been referred to in various of his Applications is new evidence because the Tribunal does seem to be aware of it. This is not new evidence within the meaning of the Rule.

16The applicant then refers to a March 13, 2001 letter he wrote to the Ontario Human Rights Commission complaining about the "chronic misuse of the Arbitration report by the respondent" and requesting that it be removed from the record. It is not clear what point the applicant wishes to make here, other than the one he has attempted to make in various of these Applications, that he was not dismissed for cause in 1984.

17The applicant also refilled the list of positions he applied for in 2012-2013. The issues raised by the list and the applicant's allegations about it, were to the extent necessary to deal with the preliminary issues before the Tribunal considered and dealt with in the Decision.

18The applicant argues that his circumstances are different from those in the Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667 and Visic v. Law Society of Upper Canada, 2012 HRTO 1642, decisions cited by the respondent and referred to in the Decision. I agree, and these are issues that were argued and dealt with in the Decision. Similarly the applicant takes issue with a number of other decisions to which I referred to in the Decision. Again a Request for reconsideration is not an opportunity to re-argue a case.

19The applicant challenges the assertion that he has made demeaning comments about the respondent and the Tribunal, ignoring the fact that the Tribunal admonished him for doing so on one occasion. The applicant does not address the central basis for the Decision, that he has filed the same Application repeatedly for years and vows to continue to do so until justice is done except by way of requesting leave to file a new Application. He has provided no reasons for this Request and the request will not be considered at this time.

20For all of these reasons the Request for Reconsiderations is denied.