Gavin Francisco v. The Carlu Corporation, 2013 HRTO 123

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gavin Francisco

Applicant

-and-

The Carlu Corporation

Respondent

RECONSIDERATION DECISION

Adjudicator: Douglas Sanderson

Date: January 23, 2013

Citation: 2013 HRTO 123

Indexed as: Francisco v. Carlu Corporation

APPEARANCES

Gavin Francisco, Applicant

Self-represented

1The applicant requests Reconsideration of the Tribunal’s Decision of October 22, 2012, 2012 HRTO 1996, dismissing this Application.

Decision Summary

2The applicant alleged that the respondent banned him from its facilities because he is a black man of the Jewish faith. The Tribunal found that the respondent provided a credible non-discriminatory reason for banning the applicant from its premises and that the evidence did not support the inference that the applicant’s race, colour, ancestry or creed was a factor in the decision to ban him.

3The circumstances in which Reconsideration may be granted are set out in Rule 26.5:

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.

4The 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.

5The applicant filed a Request for Reconsideration (the “Request”) on November 12, 2012, and relies upon Rules 26.5(c). In Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34, the Tribunal described the requirements for Reconsideration under Rule 26.5(c) as follows, at paragraph 54-56:

On my review of the materials and the interim decision, I am not satisfied that any part of the decision is in conflict with established jurisprudence or Tribunal procedure. I have considered what is meant by the requirement of a “conflict”. Given the public interest in finality of decision-making and economy of legal proceedings, as discussed above, a decision should not be reconsidered on the basis of an assertion of an apparent conflict with the result reached in another decision. There must be a conflict with “established” jurisprudence or procedure in the sense that there is a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules.

6The applicant submitted that the result of the Decision was disproportionate because the applicant remained banned “for life” because of suspicious activities. In support of this argument, the applicant cited “Using the Charter in Policy and Practice”, a document prepared by the Victorian Council of Social Service to record actions taken or anticipated in response to the enactment of the Victorian Charter of Human Rights and Responsibilities 2006 by the government of the state of Victoria, Australia. Consequently, this document does not describe any legal principle relevant to the interpretation of the Code. Accordingly, the applicant did not identify how the Decision departed from any settled legal principle. In any event, I note that the Tribunal did not make the decision to ban the applicant from the respondent’s premises and does not require that it remain in place. Rather, the Tribunal was called upon to determine whether the decision to ban the applicant violated the Code and found that it did not. The Tribunal does not have jurisdiction to address a decision merely because it may be unfair.

7The applicant takes issue with findings of fact and legal analysis in the Decision. The Tribunal’s jurisprudence and the Practice Direction on Reconsideration are clear that Reconsideration is not an appeal and that disagreement with a decision or an alleged error is not sufficient to meet the requirements of Rule 26.5. See Sigrist, supra, at paragraph 56 and Latronico v. York Region District School Board, 2012 HRTO 637 at paragraph 11. The respondent made no submissions regarding how the proposed Reconsideration involves a matter of general or public importance. In these circumstances, the respondent has not met the requirements of rule 26.5(c).

8Finally, the applicant submitted that I refused to record the hearing using the available recording technology, and instead took my own notes by hand. The applicant submitted that this obscured the transparency of the proceeding. The Tribunal’s Practice Direction on Recording Hearings states as follows:

The HRTO does not normally record or transcribe its proceedings. The HRTO will record a hearing when it is necessary to accommodate Code-related needs of the panel, a party or a representative who would otherwise be unable to participate in the hearing. Please contact the appropriate Registrar as soon as possible if you require accommodation.

Neither party asked the Tribunal to record the hearing and the applicant did not suggest that he was unable to participate in the hearing. Consequently, failure to record the hearing does not provide a reason for Reconsideration.

9In my view, the applicant provided no reason to conclude that compelling and extraordinary circumstances exist that would call for Reconsideration of the Decision.

10The Request for Reconsideration is dismissed.