Nedschati v. 1557859 Ontario Inc., 2014 HRTO 754

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abdulbaqui Nedschati

Applicant

-and-

1557859 Ontario Inc. o/a Wally’s Family Restaurant, Dina Wei, David Wei and Lihong Hou

Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: May 27, 2014

Citation: 2014 HRTO 754

Indexed as: Nedschati v. 1557859 Ontario Inc.

WRITTEN SUBMISSIONS

1557859 Ontario Inc. o/a Wally’s Family Restaurant, Dina Wei, David Wei and Lihong Hou, Respondents

U-Sheak Koroma, Representative

REASONS FOR DECISION

1On April 29, 2014 , the Tribunal issued its Decision in this Application, 2014 HRTO 597, allowing the Application and awarding $1,000 in damages for breach of a settlement . The respondents have asked the Tribunal to reconsider the Decision.

2The respondents take issue with the damage award.

3In their Request the applicant argues that the Request should be granted because:

a. The Decision is in conflict with established jurisprudence and the proposed reconsideration involves a matter of general or public importance; or

b. Other facts 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 respondents have not met the burden of establishing that the Decision is inconsistent with Tribunal jurisprudence or that there are other factors which outweigh the public interest in the finality of Tribunal decisions.

9Although the respondents argue that the Decision is inconsistent with Tribunal case law they point to no other decisions of the Tribunal with which it might be said to conflict. The Tribunal stated in Sigrist and Carson, above that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the respondents may disagree with my determination of the appropriate damages for the breach, they point to no clear and surprising departure from the established legal rules with respect to damages, indeed they point to no decisions at all with which it is said to conflict.

10The respondents argue that I relied on the fact that the applicant was required to incur further legal expenses in enforcing the settlement and that I in effect awarded costs. It is correct to say that I considered the fact that the applicant had to incur further legal expenses as one of a number of factors going to the quantum of damages but it is incorrect to say that I awarded costs. In any case it is not clear how taking into account the fact that there were expenses incurred in enforcing a settlement contract is a surprising departure from an established principle in Tribunal jurisprudence.

11For these reasons find that the respondents have 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.