Mike Miroslav Iwachow v. The Corporation of the Town of Fort Erie, 2013 HRTO 40

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mike Miroslav Iwachow Applicant

-and-

The Corporation of the Town of Fort Erie Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir Date: January 10, 2013 Citation: 2013 HRTO 40 Indexed as: Iwachow v. Fort Erie (Town)

WRITTEN SUBMISSIONS

Mike Miroslav Iwachow, Applicant Self-represented

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 citizenship, place of origin and reprisal. In 2012 HRTO 1984 (the “Decision”), this Application was dismissed because it was filed more than one year after the last alleged incident of discrimination and because the Application failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent.

2The applicant has filed a Request for Reconsideration of the Decision. Under 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.

3The 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.

4The 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.

5As 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.

6I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

7As indicated above, the applicant relies on Rule 26.5 but makes no submission that relates to any of the factors listed there. It appears that the applicant is claiming that because the Application was initially accepted, it must be a timely and otherwise proper Application. That is not the case and no inference can be drawn from the initial acceptance of an Application. Otherwise the applicant merely reiterates submissions already made and considered. The applicant filed a number of documents which are said to be evidence of discrimination. Having reviewed this material it appears to be merely further details of allegations which do not appear to engage the Code going back to events said to have occurred in 1981.

8It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson v. London Catholic District School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

9In 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.