Narinder Sidhu v. Diane Fitzpatrick, 2014 HRTO 850

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Narinder Sidhu Applicant

-and-

Diane Fitzpatrick Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw
Date: June 10, 2014
Citation: 2014 HRTO 850
Indexed as: Sidhu v. Fitzpatrick

WRITTEN SUBMISSIONS

Narinder Sidhu, Applicant Self-represented

Introduction

1On May 13, 2014, the Tribunal issued its Decision, 2014 HRTO 676, dismissing this Application on the basis that it had no reasonable prospect of success.

THE REQUEST FOR RECONSIDERATION

2In her Request for Reconsideration the applicant identifies the following main reasons why the Tribunal should reconsider its Decision:

a. there are new facts or evidence that could potentially be determinative of the case and that could not have been obtained earlier; and

b. there are other factors that outweigh the public interest in the finality of Tribunal decisions.

3More particularly, the applicant alleges:

a. the hearing was held by telephone;

b. English is her second language and the applicant could not express herself and requests an interpreter; and

c. there was a lack of production of evidence.

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 of Procedure, which govern 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 March 2010). 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.

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.

8The Tribunal also has stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, 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.

9I 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; or

• established that there are factors that outweigh the public interest in the finality of Tribunal decisions.

Telephone Hearing

10If the applicant established that she had difficulty communicating on the telephone and this affected her evidence, then it may well be a factor that would outweigh the public interest in the finality of Tribunal decisions.

11However, in this case at no time did the applicant allege any difficulty expressing herself during the telephone conference, which the Tribunal would have addressed at the time, if she had. She also indicated in her Request for a Reconsideration that she does not understand why her Application was dismissed and thinks that one reason is she could not express herself. This was not the reason for the Decision, and the Tribunal had no difficulties understanding the applicant. I deny the request on this basis.

Request for Interpreter

12The applicant had the right to request an interpreter in accordance with the Practice Direction on Requests for Language Interpretation, which allows parties to make a request for interpretation services, and she did not do so.

13If 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.

14At no time during the hearing did the applicant advise that English was her second language. I had no difficulty understanding the applicant’s evidence and she did not voice 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. I am satisfied that the applicant had a full and fair opportunity to be heard on the issues.

Lack of Production

15Other than alleging a lack of production as a possible reason why the Application was dismissed, the applicant provided no details of what evidence she thought was not produced. Her request on this basis is denied.

16In 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.