Alexandre Papouchine v. Audi Canada, 2013 HRTO 88

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexandre Papouchine

Applicant

-and-

Audi Canada

Respondent

RECONSIDERATION DECISION

Adjudicator: Mary Truemner

Date: January 16, 2013

Citation: 2013 HRTO 88

Indexed as: Papouchine v. Audi Canada

WRITTEN SUBMISSIONS

Alexandre Papouchine, Applicant

Self-represented

Introduction

1On September 28, 2012, after hearing submissions from the parties at a summary hearing, the Tribunal issued a Decision, 2012 HRTO 1860, dismissing the Application, which alleged discrimination under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Tribunal found that the applicant had no reasonable prospect of success because he was unable to describe evidence which would connect his ancestry, ethnic origin or place of origin to the alleged treatment and lack of services he received by the respondent. The applicant has asked the Tribunal to reconsider its Decision.

THE REQUEST FOR RECONSIDERATION

2The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

• There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;
• The Decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and
• Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

DECISION

3Under 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.

4The Tribunal has issued Rules of Procedure, which govern 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). Rule 26 states in part:

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.

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.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

6As is evident from the above, reconsideration is a discretionary remedy. In other words, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so.

7I find that the applicant has not met the burden of establishing the threshold criteria justifying reconsideration. With respect to the first reason that he cites, the test requires that the applicant show that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. Although the applicant has described English newspaper articles that describe the respondent’s dealings with Audi customers, particularly the royal family, the applicant does not demonstrate that the articles could not have been obtained earlier, and, at any rate, the articles, as he describes them, could not potentially be determinative of the case. The Request for Reconsideration does not describe any other facts or evidence that the applicant has obtained that were not alluded to at the summary hearing, or that could be determinative of the case.

8With respect to the second reason for reconsideration that the applicant cites, the test requires that the Decision be in conflict with established jurisprudence or procedure, and be a matter of general or public importance. The applicant has not pointed to any case law, other than a case that was dealt with and distinguished in the Decision. He argues, however, that the Decision did not deal with an assumption that his allegation (that the respondent should have assisted him in pursuing a dealership and did not) was true, and he argues the Decision is therefore in conflict with established jurisprudence or procedure. I find that the applicant’s characterization of the Decision is incorrect. The Decision states the following in dismissing the Application:

Even if I accepted the applicant’s allegations that he was denied services by the respondent, there is no evidence that the respondent’s interaction or reluctance to interact with the applicant was based in whole or in part on ancestry, ethnic origin or place of origin.

9The reason for the dismissal is that the applicant could not point to evidence which would link the denial of service with the prohibited grounds he alleges were the reason for that denial. Nowhere else in the Request for Reconsideration does the applicant explain how exactly the Decision might be in conflict with established jurisprudence or procedure and be a matter of general or public importance.

10The third reason for the Request for Reconsideration is that other factors exist that outweigh the public interest in the finality of Tribunal decisions. It is not clear to me what paragraphs describe any such factors, but, having read all of the applicant’s submissions, I see nothing that would outweigh the public interest of finality in Tribunal decisions and that would justify reconsideration here.

11In conclusion, 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, and the Tribunal will not address the copies of correspondence or the Request for Order During Proceedings seeking the production of documents because the applicant filed them subsequent to the Request for Reconsideration, and because nothing in them would lead to reconsideration of the Tribunal’s Decision under Rule 26.