HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Julius Casimir
Applicant
-and-
Twin Peaks Hydroponics and Nick Mastronardi
Respondents
RECONSIDERATION DECISION
Adjudicator: David Muir
Indexed as: Casimir v. Twin Peaks Hydroponics
WRITTEN SUBMISSIONS
Julius Casimir, Applicant
Linda Vanucci, Counsel
1This is an Application 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 ancestry, colour, ethnic origin, family status and race. In 2012 HRTO 2164 the Application was dismissed. The applicant has filed a Request for Reconsideration (Form 26).
2The Request for Reconsideration flows from the following determination made in the Decision at para 7:
After the evidence was concluded, the applicant significantly enlarged the scope of the Application with arguments that the contract of employment under which the applicant had agreed to be employed was discriminatory on the basis of family status, marital status, race, colour and ethnic origin because it in effect required the applicant to remain single and to reside at the work-site. These latter positions were not contained in the Application and, accordingly, I find that it would be inappropriate to deal with them at this late stage, without notice of any kind to the respondents and after the evidence was all in. In any event I also find that the argument does not arise on the evidence [and that] the applicant does not claim in his Application that he asked to live off site or with his spouse and/or her children.
3The applicant argues that I should have invited the submissions of the parties if there was concern about an inappropriate expansion of the allegations in the Application and the parties given an opportunity to make submissions on the point. The applicant also argues that my conclusion that issues raised at the conclusion of the hearing did not arise on the facts of the case is in error because there was evidence from the respondent’s witnesses to the effect that it was not necessary for workers not employed in the migrant farm workers program, to live on site and accordingly there was evidence to support the adverse impact arguments advanced at the conclusion of the hearing. The applicant also argues that the plight of migrant workers such as the applicant is a matter of public importance.
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 the 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.
9By way of background this Application was filed on June 10, 2010. In it the applicant alleged that his right to be free of discrimination in employment on the basis of ancestry, colour, ethnic origin, family status and race were infringed by the respondents. The allegation in the Application appeared to be limited to an allegation that the applicant had been dismissed from his employment as a farm worker because he married a Canadian woman. This was the case that was confirmed with the parties in an Interim Decision dated December 31, 2010; a Case Assessment Direction dated July 19, 2012 and another dated September 7, 2012.
10Finally at the outset of the hearing, I again confirmed with the parties that the issue in the case were as I had outlined them in the determinations referred to above. The parties were in agreement that this was the case.
11It was only at the conclusion of the hearing, after counsel for the applicant concluded her submissions on the case as framed above, that her co-counsel made a number of arguments which, as noted above, I addressed and considered in para. 7 of 2012 HRTO 2164 and which are now the subject of this Reconsideration Request. The respondent did not object during the course of these arguments, but did indicate in his responding submissions that these were not issues that had been raised in the Application and were not before me. The applicant did not respond to these submissions.
12The applicant may well object to my determination that the adverse effect discrimination arguments did not arise on the facts. However, merely disagreeing with a finding of fact is not an appropriate basis for reconsideration within the scope of criteria established in Tribunal Rule 26.5. As noted in the Tribunal’s Practice Direction, reconsideration is not an appeal. For that reason alone this Request should be dismissed.
13On the broader point, that I should now entertain submissions on whether it would be appropriate to allow the applicant to amend and significantly broaden the scope of the Application in the circumstances set out above, I have considered the applicant’s submission and do not agree.
14As indicated above while the respondent did not interrupt the applicant’s closing submissions, which was appropriate, counsel made it plain that he thought that the submissions were an inappropriate expansion of the scope of the case as it had been understood by everyone until that moment. The applicant did not respond nor was leave requested at that stage. Even had the applicant explicitly made such a request at the conclusion of the hearing, the result would have been little different than it is here in the context of a Reconsideration Request. The point being, particularly in the context of having repeatedly confirmed the scope of the hearing, it would have been manifestly unfair to the respondent to entertain a significant expansion of the scope of the legal proceeding based on arguments essentially raised for the first time in closing submissions.
15In conclusion, 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.
Dated at Toronto, this 29^th^ day of January, 2013.
”signed by”
David Muir
Vice-chair