McCall v. Toronto Beds & Bedrooms Inc., 2014 HRTO 1364

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Kennedy McCall

Applicant

-and-

Toronto Beds & Bedrooms Inc. o/a The Bedroom Shop Canada

Respondent

RECONSIDERATION DECISION

Adjudicator: Keith Brennenstuhl

Date: September 15, 2014

Citation: 2014 HRTO 1364

Indexed as: McCall v. Toronto Beds & Bedrooms Inc.

WRITTEN SUBMISSIONS

Paul Kennedy McCall, Applicant

Thomas Peacock, Representative

Toronto Beds & Bedrooms Inc. o/a the Bedroom Shop Canada, Respondent

Kyle D. Burgis, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2On May 27, 2014 the Tribunal issued a Decision dismissing the Application, 2014 HRTO 753, on the basis that the applicant failed to file his Application in a timely manner and without satisfying the Tribunal that the delay in filing the Application was incurred in good faith.

3On June 26, 2014, the Tribunal received a Request for Reconsideration from the applicant.

4Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions. Further 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.

5Most relevant is Rule 26 which reads in part as follows:

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.

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.

7In his Request for Reconsideration the applicant relies on Rule 26.5 (a) and (c).

New Facts or Evidence

8With respect to Rule 26.5 (a), the applicant indicates in his Request that "within approximately 60 days" he will be able to obtain "first hand testimony from the Applicants Doctor(s), MOL officers and other witnesses requiring a subpoena" who can "provide valuable evidence and clarity." The applicant fails to indicate, however, what facts and/or evidence these individuals will provide; whether the facts and/or evidence are "new"; or how the alleged facts and/or evidence would impact on the Tribunal's Decision. Moreover, the applicant anticipates obtaining such facts and/or evidence in the future. He does not currently have any facts and/or evidence that could be potentially determinative of the case. In my view, the applicant's request for Reconsideration does not provide any new facts and/or evidence as required by Rule 26.5(a) that could potentially be determinative of the case. Furthermore, Reconsideration should not be granted on the basis that an applicant anticipates obtaining facts and/or evidence in the future.

Conflict with jurisprudence

9The applicant has failed to demonstrate that the Tribunal's Decision is in conflict with established case law or Tribunal procedure. While he cites two of the Tribunal's earlier decisions, presumably to support his position that the Tribunal's Decision was in conflict with case law or Tribunal procedure, the use of the decisions by the applicant is a blatant attempt by the Applicant to re-argue the case and to, otherwise, repair deficiencies in the presentation of his case.

Involves a matter of general or public importance

10The applicant has failed to provide any basis that would demonstrate that the proposed Reconsideration involves a matter of general or public importance.

11The applicant evidently disagrees with the conclusions reached in the Decision; however, that is not an appropriate basis for the Reconsideration of a final Decision of the Tribunal.

ORDER

12The Request for Reconsideration is dismissed.