Angel Lozano v. Neil Rabovsky, 2013 HRTO 958

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angel Lozano

Applicant

-and-

Neil Rabovsky

Respondent

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: May 30, 2013

Citation: 2013 HRTO 958

Indexed as: Lozano v. Neil Rabovsky

WRITTEN SUBMISSIONS

Angel Lozano, Applicant

Self-represented

Introduction

1On April 30, 2013, the Tribunal issued its decision in this Application, 2013 HRTO 720 (the "Decision"). The Application was dismissed as abandoned because the Tribunal found the applicant did not intend to proceed with the Application on the scheduled hearing date of May 1, 2013. On May 16, 2013, the applicant sought reconsideration of the Tribunal's Decision as provided for in section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

DECISION

2The Request for Reconsideration is denied.

LEGISLATIVE PROVISIONS

3Sections 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal's 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.

45.8 Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

4Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance on the Tribunal's exercise of its reconsideration powers (Practice Direction #4 Reconsideration).

5Relevant to this Decision are the following Rules:

26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.

26.3. A Request for Reconsideration must include:

(a) reasons for the request, including the basis upon which the Tribunal is asked to grant the request for reconsideration;

(b) submissions in support of the request; and

(c) the remedy or relief sought.

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;

(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;

(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.

6Practice Direction #4 states, in part:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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.

7The Tribunal's jurisprudence is clear that a Request for Reconsideration is not an appeal and is granted only in limited circumstances. There must be more than disagreement with a decision or an alleged error to find that the conditions in Rule 26.5 have been met. As the Tribunal stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, at paras. 56-57:

As is evident from the Rules and made explicit in Practice Direction #4, reconsideration is not an appeal. It is not an opportunity to re-argue a case. Once the parties to a case 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.

Secondly, assertions of a "conflict" must be analyzed with care and have due regard to the realities and nature of decision-making. Even where there is well-established jurisprudence or procedures, each decision on apparently similar issues is made within its own factual, legislative and policy context. A finding that there is a "conflict" can only be made taking into consideration the full context of the decisions.

ANALYSIS

8In his Request for Reconsideration, the applicant states he could not attend the hearing on May 1, 2013 because of his delicate medical condition. In support of this submission, the applicant provided the results of a laboratory test on October 16, 2012, written in Spanish. He also provided the English translation of the test. The laboratory report provides information about the test results and about the symptoms the applicant was experiencing at the time the test was taken.

9The laboratory test provided by the applicant was taken six and one-half months before the hearing date. It does not provide any information as to the ability of the applicant to attend the hearing on May 1, 2013. I cannot assume that because the applicant had a laboratory test, he was medically unable to attend the hearing.

10In his Request for Reconsideration, the applicant states that it was unfair to make a decision (the Abandonment Decision) when he is out of the country. Attached to the Request for Reconsideration is a letter from the applicant dated May 2, 2013 where he indicates the letter is being sent from Cali, Columbia. It appears that the main impediment to the applicant attending the hearing was that he was out of the country at that time.

11I find the applicant has not met the burden of establishing the criteria justifying reconsideration. The new evidence that he has provided does not support a finding that he was medically unable to attend the hearing. The applicant is attempting to appeal the Tribunal's finding that he had abandoned the Application. The Tribunal made that finding because the applicant was out of the country at the time of the hearing, he had failed to confirm his attendance on the scheduled hearing date, he had failed to provide medical evidence to support an earlier adjournment request and he had failed to comply with his disclosure obligations prior to the hearing. The Tribunal concluded as a result of all of these factors, the applicant did not intend to proceed with his Application on May 1, 2013.

12Although the applicant disagrees with the Tribunal's finding, Reconsideration is not an appeal. The applicant has failed to establish compelling and extraordinary circumstances that outweigh the public interest in finality of decisions. For this reason, the Request for Reconsideration is denied.