Kargbo v. Elections Ontario, 2013 HRTO 1638

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fatmata Kargbo

Applicant

-and-

Elections Ontario

Respondent

Reconsideration DecisioN

Adjudicator: David Muir

Date: September 30, 2013

Citation: 2013 HRTO 1638

Indexed as: Kargbo v. Elections Ontario

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 in the provision of goods and services

2In a Case Assessment Direction issued to the parties on August 15, 2013 the applicant was alerted to the fact that she had failed to comply with the obligations under Rules 16 and 17 to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents the party intends to rely upon no later than 45 days prior to the hearing. The applicant was further advise that there were serious consequences for her case if this step not taken which were set out at the end of the Case Assessment Direction.

3The applicant had been previously advised of her obligations under the Tribunal’s process in the Notice of Confirmation of Hearing what was sent to her on February 21, 2013.

4The applicant was directed to immediately file the materials required under Rules 16 and 17, or confirm that she had no documents to file and would be her only witness and if the applicant did not do so within 7 days of the date of the Case Assessment Direction, the Application may be dismissed as abandoned.

5The applicant did not comply with the Tribunal’s Directions above or communicate with the Tribunal in any way in many months. The Application was dismissed as abandoned.

6The applicant has filed a Request for Reconsideration (Form 20). In her Request the applicant states that she is not a lawyer and wants to give evidence.

DECISION

7Under 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.

8The 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.

9The 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.

10As 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.

11I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration. The applicant’s submission does not address any of the factors outlined above in Rule 26.5 and she has provided no explanation for her failure to respond to the Tribunal’s Directions above or to communicate with the Tribunal in any way indicating her interest in proceeding further with the Application. In my view it would be an inappropriate exercise of the Tribunal’s discretion to grant the Request in these circumstances.

12The Request is denied.