Giang v. A.P. Plasman Inc., 2014 HRTO 1313

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mui Ngoan Giang

Applicant

-and-

A.P. Plasman Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw

Date: September 4, 2014

Citation: 2014 HRTO 1313

Indexed as: Giang v. A.P. Plasman Inc.

WRITTEN SUBMISSIONS

Mui Ngoan Giang, Applicant

Self-represented

Introduction

1This Application alleges discrimination with respect to employment because of ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2In its July 16, 2014 Interim Decision, 2014 HRTO 1038, the Tribunal made a number of orders including an order removing the personal respondent as a party to the Application.

3In response the applicant filed a Request for Order during Proceeding and a Response to a RFOP on July 18 and again on July 25, 2014 including, among other things, an request for an order reinstating the personal respondent as a party to the Application. I have treated the request to reinstate as a timely Request for Reconsideration. Given my conclusion below it is not necessary to seek the responding parties' submissions on the request to reconsider.

Request for Reconsideration analysis and decision

4Under 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.

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.

5The 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. 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.

6The 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.

7As 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.

8The Tribunal also has stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, 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.

9I find the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration. The applicant has set out facts dating from the time of the alleged discrimination, but these are not facts that could not have been obtained earlier. She has not provided any new facts or evidence, but simply has attempted to re-argue her case. Her reconsideration request clearly is an attempt to appeal the Interim Decision, which is not the purpose of a reconsideration request, as is set out in the Tribunal's Practice Direction on Reconsideration.

10The applicant set out sections of the Criminal Code and the Canadian Human Rights Code, but the Tribunal has no jurisdiction to apply those in this proceeding which is governed by the Code.

11I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Interim Decision.

12The applicant's Request for Reconsideration is denied.