HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Emmanuel Agbalugo
Applicant
-and-
York University
Respondent
RECONSIDERATION DECISION
Adjudicator: Dale Hewat
Date: November 26, 2013
Citation: 2013 HRTO 1956
Indexed as: Agbalugo v. York University
[1] This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision [2013 HRTO 1257](https://www.minicounsel.ca/hrto/2013/1257), dated July 19, 2013, which dismissed this Application.
[2] On August 19, 2013, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.
[3] Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), provides as follows:
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.
[4] Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The 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).
[5] The 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.
[6] As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.
[7] In Sigrist and Carson v. London District Catholic School Board, [2008 HRTO 34](https://www.minicounsel.ca/hrto/2008/34), the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once 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.
[8] The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:
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.
[9] As a result, I need to determine whether the material filed by the applicant in support of his request for reconsideration satisfies any of the criteria set out in Rule 26.5. The applicant relies upon sections c) and d) of the criteria identified in Rule 26.5.
[10] The applicant sets out the following reasons to support his request:
The Tribunal amended the case by removing the name of three personal respondents and causing them to be witnesses against the applicant while at the same time denying his requests for amendments to the application.
The Tribunal disqualified the applicant’s witnesses and did not give him the opportunity to call other witnesses. The adjudicator promised to provide a note of instruction to the applicant about witness selection and on what to include in written final submissions but failed to do so.
The Tribunal refused to allow the applicant to add witnesses not initially included in his witness list nor did the Tribunal allow Ms. Payne to testify thus denying the applicant’s opportunity to cross-examine her. As well the Tribunal heard the applicant’s testimony only partially.
The Tribunal did not allow the respondent’s witnesses to testify, with the exception of Ms. Dey despite the fact that the Tribunal instructed that she was not required to attend the hearing. In addition the Adjudicator rendered her decision on the basis of evidence, in part, of witnesses who did not testify.
The Adjudicator allowed the respondent to influence her.
The Adjudicator refused a request for an adjournment due to illness and advised that the hearing would go on in the applicant’s absence if he refused to attend.
[11] As background, prior to dealing with the Application on the merits, I issued eight Interim Decisions, including requests by the applicant for adjournment, extension of time for filing of materials, requests to expand and amend his Application, requests to add additional witnesses and requests to not remove the personal respondents. A number of the points raised by the applicant in support of his Request for Reconsideration have already been dealt with in the Interim Decisions which will be referred to below in my reasoning.
[12] The applicant’s concern with respect to the removal of the three personal respondents was fully addressed in two Interim Decisions in which it was determined that the respondent’s request for removal of the personal respondents met the Tribunal’s usual tests for removal; see Agbalugo v. York University, [2011 HRTO 1881](https://www.minicounsel.ca/hrto/2011/1881), and Agbalugo v. York University, [2011 HRTO 761](https://www.minicounsel.ca/hrto/2011/761). There is nothing in the applicant’s Request for Reconsideration that would cause me to review or change these Interim Decisions about the removal of personal respondents.
[13] On two different occasions, the applicant sought to amend his application to expand the grounds of his case. The applicant was advised that he would not be permitted to expand his application to include other grounds on the basis of the Tribunal’s Rule 6.3, which stipulates that the Tribunal will not entertain requests to add grounds, expand the subject matter of the complaint or add parties in complaints originally filed with the Human Rights Commission and transferred to the Tribunal pursuant to s. 53(5) of the Code; See: Agbalugo v. York University, [2010 HRTO 983](https://www.minicounsel.ca/hrto/2010/983), and [2010 HRTO 785](https://www.minicounsel.ca/hrto/2010/785). These decisions were consistent with established Tribunal jurisprudence and procedure and there is nothing in the applicant’s Request that would cause me to change their result.
[14] The applicant alleges that despite being ill he was refused an adjournment during one of the hearing days and was forced to testify, but does not provide specifics about which day that alleged refusal occurred. It should be noted that the applicant sought an adjournment of this case on the basis of illness on May 5, 2010, the first day of hearing, and on three other occasions. He also requested that the hearing be rescheduled after a number of months had passed. In each case the applicant’s request for an adjournment was allowed and the issue of what was an appropriate and reasonable passage of time for rescheduling the hearing was also addressed in follow-up Interim Decisions; see: Agbalugo v. York University, 2010 HRTO 2252, 2010 HRTO 1959, 2011 HRTO 761, and [2011 HRTO 1316](https://www.minicounsel.ca/hrto/2011/1316).
[15] Specifically, adjournment requests were dealt with by either allowing the adjournment because the applicant’s medical documentation satisfied me that his adjournment request was reasonable, or I gave an adjournment subject to setting a time limit in which the applicant was asked to provide reasons for the adjournment request. In addition I requested specific information from his medical practitioner about the length of time needed in order for the applicant to be medically fit to attend a hearing and what accommodations, if any, were necessary to assist the applicant during a hearing. The applicant was advised that if he did not provide medical evidence within the stipulated time limit that the Tribunal may have no choice but to dismiss his case. Furthermore, due to the passage of time, the applicant was told in the latter adjournment requests that he should be aware that an extended delay of this matter might affect whether the Tribunal would be able to conduct a hearing due to the passage of time. In this regard, the applicant was advised that the Tribunal would consider whether outdated or stale evidence might prejudice the fairness of the hearing for the respondent. The applicant was never forced to testify nor was he ever told that the hearing would go on in his absence if he refused to testify due to illness.
[16] The applicant’s claims that he was denied the opportunity to add witnesses, to call his own witnesses or to cross-examine the respondent’s witnesses also were dealt with during the hearing and by way of Interim Decisions; see Agbalugo v. York University, 2011 HRTO 1881, and 2011 HRTO 1316. He also claims that I promised to provide him with advice about which witnesses to call and the type of evidence that they should have and what to write about in a written submission. As an adjudicator, it would not be appropriate for me to provide advice to any party about which witnesses they should be calling, the content of such evidence or what to include in written submissions. In my Interim Decision, 2011 HRTO 1881, I dealt with the applicant’s claim that I promised to provide him with advice on what witnesses would be appropriate. In addition, I set out a detailed explanation of why I did not need to hear from these additional witnesses. The applicant was also reminded that he had filed his witness list and will-say statements one year prior and that it was those materials that would be relied upon at the hearing.
[17] Contrary to the applicant’s allegation that I heard him only partially, in fact I heard his evidence in full at the hearing. After completing the applicant’s evidence in full, it became apparent that his credibility was in question and, as a result, I only wanted to hear testimony from the respondent’s witness, Ms. Dey, to address the applicant’s allegations against her. The applicant was given a full opportunity to cross-examine Ms. Dey. At the completion of Ms. Dey’s evidence, I asked the parties to provide written submissions on whether there was any reasonable prospect of success for the applicant’s case and whether the application should be dismissed. Given how the case unfolded, it was not necessary for me to hear from any other witnesses from either the applicant or respondent. While the applicant may have wanted to call other witnesses or to cross-examine the respondent’s witnesses, it became clear to me that further evidence would not be necessary. The final Decision was based on my review of the applicant’s testimony, which I found lacked credibility in comparison to the evidence of Ms. Dey, and in terms of his overall testimony about how he believed or interpreted the actions of the respondent’s representatives.
[18] Finally, the applicant claims that I was influenced by the respondent because he believed that I knew Ms. Dey personally. He also claims that I asked Ms. Dey to testify when I had previously advised the parties that I wished only to hear the applicant’s testimony. Reviewing the applicant’s Request for Reconsideration, it is clear that he had an opportunity to, and did, ask me if I knew Ms. Dey personally and that I answered “no” to each of his questions. He also acknowledges that counsel for the respondent also commented during the hearing, in response to the applicant questioning me about Ms. Dey, that she had just introduced Ms. Dey to me in the hallway during a break that day. In terms of my request to hear Ms. Dey testify, this was done as a result of my needing to hear a response to the applicant’s testimony so that I could properly and fairly assess his credibility.
[19] Having reviewed all of the applicant’s claims in his Request I do not find any basis for establishing the criteria for review set out in either sections c) or d) of Rule 26.5. For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.
Dated at Toronto, this 26^th^ day of November, 2013.
“Signed by”
Dale Hewat
Member