Alexandre Papouchine v. Stephen Smith, 2013 HRTO 1145

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexandre Papouchine

Applicant

-and-

Stephen Smith

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: July 2, 2013

Citation: 2013 HRTO 1145

Indexed as: Papouchine v. Smith

WRITTEN SUBMISSIONS BY

Alexandre Papouchine, Applicant ) Self-represented

1On April 18, 2013 the Tribunal issued its Decision in this Application, 2013 HRTO 646, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

background

2The Tribunal’s Decision found that it was plain and obvious that the Application was outside of the Tribunal’s jurisdiction because it disclosed no specific acts of discrimination within the meaning of the Code allegedly committed by the respondent. The Decision notes that the applicant had a question or suspicion and a desire to know if the respondent’s alleged failure to provide him with information was discriminatory but the allegations made amounted at their highest to an assertion that the applicant is a member of a protected group and that the respondent failed to provide information about his mechanic’s licence to the applicant.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration re-argues the points made by the applicant earlier in the proceeding. The applicant claims that the respondent had an obligation to disclose information about his mechanic’s licence to the applicant and failed to do so. The applicant asserts that his ethnic background is evident from his name and he is obviously not a member of the Royal family. He asserts that the respondent would have provided the information if he were a member of the Royal family and accordingly the inference can be drawn that the failure or refusal of the respondent was discriminatory.

DECISION

4Under 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.

5The 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.

6The 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.

7As 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.

8I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

9In support of its Request, the applicant essentially repeats arguments already made before the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

10The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

11There is nothing before me suggesting that the applicant was entitled to but did not receive notice of the proceeding or a hearing. He had an opportunity to make submissions and they were considered

12I am not convinced that any findings made in the Decision are in conflict with established jurisprudence.

13It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson v. London District Catholic School Board, 2010 HRTO 202, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

14In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.