Tsemo v. York University, 2014 HRTO 2

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aristide Raoul Tsemo

Applicant

-and-

York University

Respondent

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle

Date: January 3, 2014

Citation: 2014 HRTO 2

Indexed as: Tsemo v. York University

WRITTEN SUBMISSIONS BY

Aristide Raoul Tsemo, Applicant ) Self-Represented

York University, Respondent ) No submissions

1On November 23, 2012, the Tribunal issued its Decision in this Application, 2012 HRTO 2197, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision, pursuant to section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”).

background

2The Tribunal’s Decision found as follows:

• The Application as it related to allegations of discrimination in the respondent’s hiring decisions prior to the one-year period preceding April 30, 2007, was dismissed as untimely.

• The Application as it related to allegations of discrimination in the respondent’s hiring decisions in respect of certain York University Faculty Association (YUFA) positions and Canadian Union of Public Employees (CUPE) teaching positions, in the one year period preceding April 30, 2007, was dismissed. On the basis of evidence and argument before it, the Tribunal did not find that the applicant had established discrimination in those hiring decisions.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. 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

b. 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

c. Other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

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 governing such requests 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, January 2008 amended June 2008). Most relevant to this Decision is Rule 26 which states:

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. 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.

8I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

9As indicated above, the applicant relies on Rule 26.3 (b), (c) and (d). He appears to submit that because in an Interim Decision in this matter, Tsemo v. York University, 2011 HRTO 673, the Tribunal ordered production of documentation relating to the job competitions preceding the one year period prior to April 30, 2007, the Tribunal had decided that allegations relating to those competitions were timely. He also submits that the Tribunal did not deal with this by way of summary hearing according to Rule 19A. Further, he submits that the Tribunal did not invoke the procedures outlined in Rule 13.2 (c) which apply to Tribunal-initiated Preliminary Consideration of Jurisdiction, where prior to sending the Application to the respondent(s), the Tribunal issues a Notice of Intention to Dismiss and provides a timeline for the applicant to file written submissions. He also notes that in the Tribunal’s Interim Decision in a different matter, Tsemo v. University of Toronto, 2009 HRTO 1917, the Tribunal dismissed certain of his allegations against that respondent in view of a Release he had signed. The applicant also notes that the Decision for which he seeks reconsideration did not find the untimely job competitions to be part of a series of incidents, and submits that the Code does not mention the kind of different events which can appear in a series of events. He also submits that because he had seniority in the CUPE bargaining unit, he should have been awarded a job which was ultimately given to someone without such seniority. Finally, he submits that the issue before the Tribunal is whether he or the respondent is correct in the way in which they interpret collective agreement language regarding Affirmative Action.

10In support of his Request, the applicant essentially repeats arguments made before the Tribunal, and refers to what he believes are his superior qualifications for positions and to the interpretation of collective agreement language regarding Affirmative Action. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

11There is nothing before me suggesting that the applicant was entitled to but did not receive notice of the proceeding or a hearing. To the contrary, the applicant participated in all of the hearing dates in this matter.

12The applicant fails to address how the Decision conflicts with established Tribunal jurisprudence. If he seeks to show that the fact that the Tribunal ordered production of documentation relating to allegations which were ultimately found to be untimely, indicates that the Decision in this matter was in conflict with the Interim Decision, I disagree. The question of delay was not addressed in the Interim Decision, but rather, the Tribunal directed production of certain documentation which was arguably relevant to the applicant’s allegations. Evidence and submissions were made regarding the applicant’s allegations, and in the final Decision in this matter, the Tribunal found that “each job competition was a discrete event, unrelated to the previous or next one”. The earlier allegations were found to be untimely, not part of a series of events, and the applicant was not found to have incurred the delay in good faith. In dismissing the earlier allegations for delay, there is no conflict with established Tribunal jurisprudence.

13The applicant also appears to be of the view that the Tribunal can only dismiss an Application or a portion of an Application by sending the applicant a Notice of Intent to Dismiss in relation to a Tribunal-initiated Preliminary Consideration of Jurisdiction. Rule 13 indicates that preliminary consideration of jurisdictional issues may be initiated by the Tribunal. Where the Tribunal initiates such consideration, the Tribunal sends a Notice of Intent to Dismiss an Application prior to sending the Application to the respondent(s). Clearly, however, that is not the only way in which the issue of delay may arise or be determined. In this case, the respondent raised the issue of delay. The Decision in this matter reflects consideration of the arguments made by both the respondent and the applicant regarding the issue of delay. There is nothing in this process which was “in conflict with established procedure”.

14The applicant also notes that this matter was not dealt with by way of Summary Hearing. He also notes that in the decision regarding an Application he filed against a different university, the Tribunal dismissed, as a preliminary matter, certain of his allegations due to the fact that he had signed a Release. In respect of this Application, the applicant has had a full opportunity to call evidence and make arguments regarding the various allegations of discrimination he made against this respondent. The fact that some matters are dealt with by way of Summary Hearing, and that some matters are dealt with by way of preliminary rulings, while he had the opportunity to call evidence and make submissions in respect of all of his allegations, and the fact that a Decision was issued at the conclusion of that process, does not indicate that the Tribunal dealt with his Application in a way which was “in conflict with established procedure”.

15There is nothing before me to suggest that other factors exist which outweigh the public interest in the finality of Tribunal decisions.

16It is important to note that issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

17While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that his submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

18In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.