HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jemila Macanovic
Applicant
-and-
Mount Sinai Hospital-Board of Directors, Marylin Kanee, Molyn Leszcz, Sian Rawkins and Mary Jane Dykeman
Respondents
RECONSIDERATION DECISION
Adjudicator: Leslie Reaume
Indexed as: Macanovic v. Mount Sinai Hospital-Board of Directors
WRITTEN SUBMISSIONS
Jemila Macanovic, Applicant
Self-represented
1The applicant filed a Request for Reconsideration of the Tribunal’s Decision, 2012 HRTO 1954, pursuant to section 45.7 of the Ontario Human Rights Code R.S.O., c. H.19, as amended (the “Code”). The Application was dismissed following an oral hearing for no reasonable prospect of success.
2Section 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.
3The 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.
4Rule 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.
5The 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.
6Reconsideration 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. 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.
7This Application was dismissed following a hearing, the details of which are set out in the original Decision.
8The Request for Reconsideration cites Rule 26.5 (c) and (d).
9The applicant’s written submissions make it clear that she disagrees with my Decision to dismiss her Application without hearing further evidence. She also disagrees with the factual findings and the application of the jurisprudence which lead to that decision.
10With respect to the applicant’s assertions about the testimony of Ms. Kanee, the respondent previously sought to have the application dismissed for no reasonable prospect of success. That Request was dismissed by way of a Case Assessment Direction dated July 8, 2011. The CAD contained the following directions from the Associate Chair:
The hearing dates scheduled for November 1 and 2, 2011 shall be used for the evidence and cross-examination of the applicant. The respondents need not have their witnesses present nor prepared to give evidence on those two dates.
The respondents may renew their request that the Application be dismissed on the basis that it has no reasonable prospect of success and/or because of delay following the evidence of the applicant. The parties shall be prepared to make argument on this request during the hearing dates scheduled.
11Following the applicant’s testimony I indicated to the respondent that although they may renew their request for dismissal of the Application, in my view, the applicant’s testimony had raised questions about the investigation into her allegations by Ms. Kanee’s office which required an explanation. The respondent agreed to have Ms. Kanee testify to answer those questions and to permit the applicant to have an opportunity to cross-examine, before renewing their request for dismissal. The applicant is incorrect when she states that I sought the respondent’s consent to produce Ms. Kanee as a witness. I gave the respondent the option to delay their request until after Ms. Kanee testified so as to avoid unnecessary procedures and provide the applicant with an opportunity to acquire evidence from the respondent in relation to this issue. The applicant was asked whether she was able to proceed with the cross-examination of Ms. Kanee and the applicant responded affirmatively. The applicant was given ample time to conduct her cross-examination and did not give any indication that she required more time.
12The other issues raised by the applicant are addressed in the original decision. While it is evident that the applicant disagrees with the outcome and re-argues the merits of her case in the reconsideration request, there is no basis upon which I can exercise my discretion to reconsider the original decision.
13Accordingly, the Request for Reconsideration is therefore denied.
Dated at Toronto, this 1st day of May, 2013.
”signed by”
Leslie Reaume
Vice-chair