Jamal v. Ryerson University, 2014 HRTO 774

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ismat Jamal

Applicant

-and-

Ryerson University; Centennial College of Applied Arts and Technology and Toronto Rehabilitation Clinic - Lyndhurst Site

Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: May 30, 2014

Citation: 2014 HRTO 774

Indexed As: Jamal v. Ryerson University

WRITTEN SUBMISSIONS

Ismat Jamal, Applicant

Self-represented

1During the course of the hearing of this case on April 2, 2014, the applicant requested leave to withdraw the Application. The respondents did not oppose the withdrawal but took the position that the withdrawal must be with prejudice. The consequences of the Application request to withdraw were discussed with the applicant and she was given time to consider her decision. The applicant chose to affirm her request. A Form 9, Request to withdraw was executed by the applicant at the hearing and accepted by the Tribunal on a with prejudice basis.

2On Friday April 4, 2014, the applicant sought to rescind her request to withdraw. The respondents opposed the request.

3In a Case Assessment Direction issued on April 2, 2014, I noted for the parties that the Tribunal had held in another case that a request such as this is akin to a Request for Reconsideration pursuant to Rule 26.5 of the Tribunal’s Rules. See Michelin v. Johnson, 2013 HRTO 1914.

4The applicant was directed to deliver and file any further submissions she wished to make in support of her request within 7 days of the date of the CAD.

5The applicant sought an extension of time to file these submissions but they have been received and reviewed. For the reasons that follow the request for reconsideration is denied.

6Under 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.

7The 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.

8The 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.

9As 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.

10In her submissions the applicant makes no reference to any of the factors above. The applicant argues that she did not have time to make a proper decision and was not able to reach any of her advisors. She does acknowledge that she was given time to make her decision. She does not assert that she asked for more time or advise the Tribunal that she was unable to reach any of her advisors.

11In my view there is no basis here to reconsider the Tribunal’s acceptance of the applicant’s withdrawal. The applicant asked if she could withdraw the Application and was advised that she could if she wished to do so. She was not encouraged to do so and as she acknowledges in her submissions, I advised her against it. The respondent did not oppose the request but argued that the withdrawal would be with prejudice to her ability to revive the Application or file a new one in respect of the same issues. The effect of this was explained to the applicant. She was asked if she wanted time to consider her decision and to contact anyone to discuss her options. The applicant declined this offer and affirmed her decision. Her stated reasons at the time appeared to be reasonable. The applicant has changed her mind – that is not a basis for reconsidering the Tribunal’s decision to accept her withdrawal with prejudice and I decline to do so in the circumstances.