John Doe v. A & W Canada, 2013 HRTO 1422

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Doe

Applicant

-and-

A & W Canada

Respondent

RECONSIDERATION DECISION

Adjudicator: Naomi Overend

Date: August 19, 2013

Citation: 2013 HRTO 1422

Indexed as: Doe v. A & W Canada

WRITTEN SUBMISSIONS

John Doe, Applicant

Self-represented

Introduction

1On July 19, 2013, the Tribunal issued its Decision, 2013 HRTO 1259, dismissing this Application on the basis that the Tribunal had no jurisdiction over it, and on the basis that this Application was an abuse of the Tribunal’s process. The applicant has asked the Tribunal to reconsider its Decision.

2In the Decision under reconsideration, the Tribunal found that the applicant had failed to establish that he belived his rights under Part I of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) had been infringed. This is a necesssary precondition for filing an Application under s 34 of the Code.

THE REQUEST FOR RECONSIDERATION

3In his Request for Reconsideration the applicant identifies the following reasons why the Tribunal should reconsider its Decision:

1. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; and

2. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

3. Other factors exist that outweight the public interest in the finality of Tribunal decisions.

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 of Procedure, which govern 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 March 2010). Rule 26 states in part:

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.

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

• set out new facts or evidence that could possibly be determinative of the case;

• addressed why the the decision is in conflict with established case law or Tribunal procedure; and

• established that there are factors that outweigh the public interest in the finality of Tribunal decisions.

9It is clear from the Request, as it was from the original Application, that the applicant wishes to use this process for purposes other than the resolution of an alleged infringement of his rights.

10In 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.