Kosovic v. Karat Jewellers, 2013 HRTO 905

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zoran Kosovic Applicant

-and-

Karat Jewellers Respondent

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta Date: May 24, 2013 Citation: 2013 HRTO 905 Indexed as: Kosovic v. Karat Jewellers

WRITTEN SUBMISSIONS BY:

Zoran Kosovic, Applicant ) On His Own Behalf

INTRODUCTION

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), in which he alleged discrimination in respect of employment on the basis of age and sex. Although he has named a jewellery store as the respondent, in his Application, he indicates that the job involves counter sales, requiring service of food to customers.

2Following a mediation attended by both parties, a Notice of Confirmation of Hearing was sent to the parties scheduling the matter for a one day hearing on February 8, 2013.

3A Case Assessment Direction (CAD) was issued on January 4, 2013, alerting the applicant to the fact that he had failed to comply with the obligations under Rules 16 and 17 to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents the party intends to rely upon no later than 45 days prior to the hearing. Those documents and witness statements were due on December 27, 2012.

4The CAD included the following statement from the Tribunal’s decision in C.D. v. Wal-Mart Canada, 2010 HRTO 426 at para 7:

A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

5The applicant was directed to immediately comply with the requirements under Rules 16 and 17, and the CAD indicated that if he had not done so within seven days, the Application may be dismissed as abandoned.

6The CAD, sent to the applicant by email and regular mail, was not returned as undeliverable and as the applicant has not contacted the Tribunal or filed any documents or witness statements, the Application was dismissed as abandoned in a decision dated January 16, 2013 (2013 HRTO 83).

7On April 23, 2013, the Tribunal received a Request for Reconsideration, dated April 17, 2013, from the applicant. A respondent is not required to make submissions unless called on to do so. In the circumstances of this Reconsideration Request, no submissions were sought from the respondent.

8The applicant argues that reconsideration is warranted in this case on two grounds; that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier and that he was entitled to notice and did not receive it, through no fault of his own. This is the Tribunal’s Decision on the Request for Reconsideration.

REQUEST FOR RECONSIDERATION

9Section 45.7 of the Code provides the Tribunal with explicit authority 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.

10Further to its power to make rules, the 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 (Practice Direction on Reconsideration).

11Most relevant to this decision is Rule 26 which reads, in part, as follows:

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 and orders.

12The 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.

13As 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.

14Although the Request for Reconsideration was filed more than 30 days following the date of the Decision in question, I have considered the Request as the applicant indicates that he was unaware of the 30 day deadline and he was waiting for the appropriate forms to be sent to him.

15The applicant has based his request on Rule 26.5 (a) and (b). However, he has made no specific arguments in support of the first ground cited, regarding new facts or evidence potentially determinative of the case that could not reasonably have been obtained earlier.

16In respect of his contention that he did not have notice of the hearing, he has not explained his failure to respond in any way to the Case Assessment Direction, dated January 4, 2013, which alerted him to the impending hearing date on February 8, 2013, and the fact that he had failed to meet certain deadlines associated with that hearing. The CAD was sent by both regular mail and to the applicant’s email address. Neither communication was returned as undeliverable. I note that the applicant has continued to communicate regularly with the Tribunal from the same email address to which the CAD was sent, in order to obtain information on the process by which he could seek reconsideration.

17Having reviewed the applicant’s submission, I find that the arguments raised by the applicant do not address the grounds cited by him. I find no basis to grant reconsideration of the Tribunal’s Decision of January 16, 2013. The Request is denied.