HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andy Chua by his Substitute Decision-Maker Lorna Chua Applicant
-and-
Re/Max Realtron Realty Inc. Respondent
RECONSIDERATION DECISION
Adjudicator: Mary Truemner Date: May 24, 2013 Citation: 2013 HRTO 898 Indexed as: Chua v. Re/Max Realtron Realty Inc.
WRITTEN SUBMISSIONS
Andy Chua by his Substitute Decision-Maker Lorna Chua, Applicant Lorna Chua, Self-represented
Re/Max Realtron Realty Inc., Respondent Richard Pilarski, Representative
Introduction
1This Tribunal issued a Decision, 2012 HRTO 1207, on June 19, 2012, dismissing this Application on the basis that the remedies that the applicant sought in a court proceeding included remedies claimed in the Application with respect to the alleged infringement of his rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Tribunal stated at para. 10 of its Decision that section 34(11) applied to bar the Application:
The Statement of Claim does not specifically cite the Code, but it does allege discrimination because of disability, and it is clear that the discrimination alleged against the respondent in the Statement of Claim is the same as the discrimination alleged in the Application. There is an overlap of facts and issues which engages s.34(11), and while the Statement of Claim does not specifically seek an order under section 46.1 of the Code, the remedies sought in the Statement of Claim significantly overlap with the remedies sought in the Application. In particular, the Statement of Claim seeks, amongst other damages, damages arising out of the conduct specifically alleged to be discrimination – discrimination because of disability as identified in both the Statement of Claim and the Application. The fact that all of the remedies sought in each are not identical is not determinative of whether the Application is barred by statute. See Hallett v. Grey Bruce Health Services, 2009 HRTO 403, at para. 15.
2The applicant has requested the Tribunal to reconsider its Decision. Although the Request for Reconsideration was filed late, I note that the applicant and his representative, who is his wife, have been faced with serious health problems. In view of this, I have considered the applicant’s reason for reconsideration, that reason being that certain factors exist that outweigh the public interest in the finality of Tribunal decisions.
RECONSIDERATION ANALYSIS
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 the 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. He argues, through his representative’s submissions and attachments, that other factors exist that outweigh the public interest in the finality of Tribunal decisions.
8The applicant’s submissions generally describe how the applicant commenced his court action after filing the Application in order to not run afoul of a limitation period, but that the court action is slower than the process at the Tribunal, and is not “being pursued aggressively” because the applicant lacks the funds to maintain legal representation, and the court proceeding may therefore be abandoned. He argues that the court process is not as cost efficient, and that the Tribunal might provide better remedies, but, in the context of the applicant’s decision to commence court proceedings and his right to proceed without legal represenation, I find that these are not factors that would outweigh the public interest of finality in Tribunal decisions.
9The applicant also argues that a reason for reconsidering the dismissal of the Application is so that the Commission might become involved in remedies, particularly in monitoring training for the respondent, but given that the Commission is not a party in this Application, I do not consider the possibility that it might become involved to be a factor for outweighing the public interest in the finality of Tribunal decisions.
10In Borden v. Toronto Grace Health Centre, 2010 HRTO 1109, the Tribunal found that section 34(11) applied whether the civil action was commenced before or after an application to the Tribunal. In Grogan v. Toronto District School Board, 2012 ONSC 319, the Divisional Court upheld a matter similarly decided by the Tribunal (see Grogan v. Toronto District School Board, 2011 HRTO 954). Also, the fact that all of the remedies sought in each proceeding are not identical is not determinative of whether the Application is barred by statute. See Hallett v. Grey Bruce Health Services, 2009 HRTO 403, at para. 15. I agree with these principles and cases that were provided in the Decision dismissing the Application, but I repeat them so that the applicant might better understand that his Application was dismissed despite the fact he filed it before the court action, and despite certain differences in some of the remedies requested in his Statement of Claim from those requested in his Application. A Request for Reconsideration does not afford the applicant an opportunity to reargue the issues that were decided in the Decision dismissing his Application.
11Having 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.
ORDER
12The Request for Reconsideration is denied.
Dated at Toronto, this 24th day of May, 2013.
”signed by”
Mary Truemner Vice-chair