Koenig v. York University, 2013 HRTO 1899

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bernhard Koenig Applicant

-and-

York University Respondent

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: November 14, 2013

Citation: 2013 HRTO 1899

Indexed as: Koenig v. York University

WRITTEN SUBMISSIONS

Bernhard Koenig, Applicant

Self-represented

Introduction

1On May 23, 2013, the applicant filed Request for Reconsideration (Form 20), pursuant to section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) seeking reconsideration of the Tribunal’s Decision, dated April 24, 2013 (see 2013 HRTO 691).

2The Tribunal’s decision, dated April 24, 2013, dismissed an Application filed by the applicant at the conclusion of a Summary Hearing for no reasonable prospect of success.

3Section 45.7 of the Code provides the Tribunal with authority and discretion to reconsider its decisions:

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.

4The Tribunal has issued rules governing Requests for Reconsideration, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

5Rule 26.5 states that 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 and orders.

6In support of his reconsideration request, the applicant has presented three arguments.

7He argues that arguments relating to s.186(n) of the IRPR, SOR/2002-227 (regulations made pursuant to the Immigration and Refugee Protection Act S.C. 2001, c.27) were not considered by the Tribunal in arriving at its decision, that a requested remedy was ignored and finally that the Tribunal has intentionally ignored relevant supreme court rulings that interpret s. 15 of the Canadian Charter of Rights and Freedoms (the “Charter”).

8I will address each of the applicant’s arguments in turn. The applicant’s primary argument was that the HRDC guideline relied upon by the respondent was discriminatory. He also asserted peripherally that the HRSDC guideline in question does not take into account some exemptions contained in regulations made pursuant to the IRPA such as s.186(n) which permits foreign nationals already in Canada to work in certain limited capacities. The applicant’s argument was considered in the original decision and it does not advance his position with respect to the central question of whether s.16(1) of the Code is engaged by the HRSDC guideline.

9The applicant points to the fact that his remedial requests were not canvassed and discussed in the April 24, 2013 decision dismissing his Application. In my view, given that the Tribunal found that there was no reasonable prospect that the applicant would be able to establish a breach of the Code, it was unnecessary to engage in any discussion of the remedies he sought in the event that he did establish his rights had been infringed.

10Finally, the applicant did not make any arguments during the hearing, nor does he make any submissions in this Request for Reconsideration that would persuade me to depart from the line of cases decided by the Tribunal that stand for the proposition that the Tribunal does not have the jurisdiction to consider the constitutionality of the guidelines published by the respondent university (see: Barber v. South East Community Care Access Centre, 2010 HRTO 581, at para. 7; Wilson v. Toronto Catholic District School Board, 2011 HRTO 1040, at para. 19; Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482, at para. 8; and Kostiuk v. Toronto Community Housing Corporation, 2012 HRTO 388, at para. 18).

11The 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.

12The applicant has sought reconsideration on the basis of the grounds outlined in Rule 26(5)(c) and (d).

13Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal confirmed that reconsideration is not an opportunity to re-argue a case.

14Once the parties to an application 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.

15It is apparent that the applicant disagrees with the outcome of this Application. However, none of the factors in Rule 26.5 are engaged by the Request for Reconsideration. There is no basis on which I might exercise my discretion to overturn my original decision in this matter.

16Accordingly the Request for Reconsideration is denied.