Dongmei Ye v. Pestell Pet Products Inc., 2014 HRTO 309

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dongmei Ye Applicant

-and-

Pestell Pet Products Inc. Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw

Date: March 12, 2014

Citation: 2014 HRTO 309

Indexed as: Ye v. Pestell Pet Products Inc.

WRITTEN SUBMISSIONS

Dongmei Ye, Applicant

Self-represented

Introduction

1On February 3, 2014, the Tribunal issued its Decision, 2014 HRTO 156, dismissing this Application on the basis that the termination pay, from which the respondent deducted courier and cancelled cheque charges which the applicant submitted was improper, was not part of the mediated settlement and therefore I could not find a contravention of the settlement.

THE REQUEST FOR RECONSIDERATION

2In her Request for Reconsideration the applicant takes the position the Tribunal should reconsider its Decision because there are new facts or evidence that could potentially be determinative of the case and that could not have been obtained earlier and that the decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. More particularly, the applicant alleges:

1. the hearing was held by telephone and because her telephone is an IP phone which depends on the Internet, it was not clear enough during the hearing;
2. she always needs an interpreter and requested one during the hearing but I refused;
3. a new issue arose during the hearing in relation to which she could e-mail me the evidence after the hearing, but I refused; and
4. the respondent did not attend the teleconference due to illness and requested that the hearing be rescheduled, which I refused.

decision

3Under 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.

4The Tribunal has issued Rules of Procedure which govern requests for reconsideration. 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.

5The Tribunal’s Practice Direction on Reconsideration provides guidance to the community on the Tribunal’s exercise of its reconsideration powers. See Practice Direction on Reconsideration, January 2008, amended March 2010. The Practice Direction 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.

6As 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.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal states 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.

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

• set out new facts or evidence that could possibly be determinative of the case;
• addressed why the decision is in conflict with established case law or Tribunal procedure; and
• established that there are factors that outweigh the public interest in the finality of Tribunal decisions.

Quality of Telephone Reception

9If the applicant established that she was not able to hear properly during the telephone hearing and this affected her evidence, then it may well be a factor that would outweigh the public interest in the finality of Tribunal decisions.

10However, in this case at no time did the applicant allege any difficulty hearing during the telephone conference, which the Tribunal would have addressed at the time, if she had. Moreover she was able to respond to my questions and directions without difficulty. I deny the request on this basis.

Request for Interpreter

11The Tribunal’s Practice Direction on Requests for Language Interpretation confirms the Tribunal will provide interpretation services for parties and witnesses. The Tribunal’s application form also includes a specific section where an applicant may make request for accommodation. There is no record of the applicant having requested accommodation or an interpreter at any time prior to raising this issue in the request for reconsideration.

12If the applicant established that she required an interpreter for the telephone hearing and this affected her evidence, then it may well be a factor that would outweigh the public interest in the finality of Tribunal decisions.

13At the outset of the hearing, the applicant advised that English was her second language. She did not request an interpreter. I advised her that I would tell her if there was something I did not understand. I had no difficulty understanding the applicant’s evidence and she did not appear to have any difficulty understanding my questions. The applicant’s responses to my questions did not suggest any problem comprehending the hearing or responding effectively, nor did the applicant raise such an issue during the hearing. My reference in the decision to the applicant’s lack of an explanation was not a reference to the applicant’s language skills. I am satisfied that the applicant had a full and fair opportunity to be heard and understood on the issues.

14The Decision was based almost wholly on what was in the Minutes of Settlement, and the fact that the termination pay was not included and had been referred to in the Minutes of Settlement as having already been received by the applicant. For that reason, and for the reason that I had no difficulty understanding the applicant, the applicant’s request on this basis is denied.

New Issue

15I am not aware of any new issue that arose during the hearing, and the applicant provided no details of what that new issue was or what she wished to send to me after the hearing. Her request on this basis is denied.

Respondent’s Non-Attendance

16The respondent did not attend the January 10, 2014 hearing, and five days later requested in writing that the hearing be reconvened.

17I issued a Case Assessment Direction, dated January 15, 2014, directing the respondent to provide within 7 days more information with respect to why she was unable to attend the hearing on the scheduled date, and why she was unable to contact the Tribunal or have someone contact the Tribunal on her behalf earlier than five days after the hearing was held. She did not do so, and as such, I issued my decision based solely on the applicant’s evidence. As such, the applicant’s request on this basis is denied.

Conflict with established case law or Tribunal procedure

18The applicant has provided any basis to support the Decision being in conflict with established case law or Tribunal procedure. She has not pointed to any case law with which she alleges the Decision in this matter is in conflict, nor has she identified any Tribunal procedure which she alleges was not followed.

19In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to the exercise of my discretion to reconsider the Tribunal’s Decision. The Request is denied.