Pereira v. Designer Furniture and Art, 2014 HRTO 1731

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adelia Pereira

Applicant

-and-

Designer Furniture and Art, Victor Brewda, Frank Falbo and Michael Brewda

Respondents

RECONSIDERATION DECISION

Adjudicator: Keith Brennenstuhl

Date: December 1, 2014

Citation: 2014 HRTO 1731

Indexed as: Pereira v. Designer Furniture and Art

WRITTEN SUBMISSIONS BY

Adelia Pereira, Applicant ) Wade Poziomka, Counsel

1This is a Request for Reconsideration by the applicant in a Contravention of Settlement Application that was allowed but with no order as to remedy: see 2014 HRTO 1590. The alleged breach of settlement is that while a payment by the respondents to the applicant was required under the Minutes of Settlement by April 17, 2014, it was not received until April 23, 2014, even though it had been mailed to the applicant on April 15, 2014.

background

2The Tribunal’s Decision found as follows:

• that the Tribunal’s remedial power to remedy a contravention of settlement cannot be fettered, limited or pre-determined by the agreement of the parties;

• that the delay in receiving the payment amounted to a de minimus breach of the minutes of settlement and that, therefore, it was not appropriate to award a remedy for contravention of the minutes of settlement.

THE REQUEST FOR RECONSIDERATION

3The applicant relies upon Rule 26.5 (c) and (d) of the Tribunal’s Rules of Procedure. Rule 26.5 reads 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.

DECISION

4The 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.

5As 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.

6As indicated above, the applicant relies on Rule 26.5 (c) and (d).

7The applicant makes numerous arguments about why, in her view, the Decision is incorrect. However, reconsideration under Rule 26.5 (c) is not an appeal or an evaluation of alleged errors in the decision. As the Tribunal stated in Sigrist and Carson v. Toronto District School Board, 2008 HRTO 34 at para 54:

I have considered what is meant by the requirement of a “conflict”. Given the public interest in finality of decision-making and economy of legal proceedings, as discussed above, a decision should not be reconsidered on the basis of an assertion of an apparent conflict with the result reached in another decision. There must be a conflict with established jurisprudence or procedure in the sense that there is a settled understanding about the legal rules that apply, and a clear and surprising departure from those rules.

8Having considered the applicant’s arguments, I find that there is no basis for reconsideration pursuant to Rule 26.5 (c) as the applicant has shown neither a conflict with established jurisprudence nor a matter of general and public importance. She focuses on what she says are errors in the decision. Reconsideration is not granted because of disagreement with the adjudicator’s conclusion.

9As for reconsideration pursuant to Rule 26.5 (d), having considered all of the applicant’s submissions, I find that the applicant has not raised any factors that would outweigh the public interest in the finality of Tribunal decisions.

10The Request for Reconsideration is denied.