Kamis v. 1903397 Ontario Inc., 2015 HRTO 1161

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosina Kamis Applicant

-and-

1903397 Ontario Inc. o/a Layalina Hall and Restaurant Respondent

RECONSIDERATION DECISION

Adjudicator: Colin Johnston Date: September 1, 2015 Citation: 2015 HRTO 1161 Indexed as: Kamis v. 1903397 Ontario Inc.

WRITTEN SUBMISSIONS

1903397 Ontario Inc. o/a Layalina Hall and Restaurant, Respondent

Elisa Patee, Representative

Introduction

1By way of Decision, 2015 HRTO 741, dated June 5, 2015, a finding was made by the Tribunal that the respondent acted contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) in its dealings with the applicant at its restaurant in July 2014.

2This Reconsideration Decision addresses the respondent’s Request for Reconsideration of this Tribunal’s Decision.

3On August 4, 2015, the respondent filed a Request for Reconsideration asking the Tribunal to reconsider its Decision on the basis that there were new facts or evidence that could be potentially determinative of the case. The new facts or evidence, presented by the respondent, is in actual fact, evidence that was already presented at the original hearing, namely, the evidence of the respondent’s witnesses that the applicant’s service dog was not wearing a vest identifying it as a service animal at the time the applicant entered the respondent’s restaurant.

Delay

4The request for Reconsideration was filed outside the timeframe set out under the Code for making such requests. Rule 26 of the Tribunal’s Rules of Procedure provides:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision.

26.5.1 A Request for Reconsideration made more than 30 days following the Decision will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

5Accordingly, a Request for Reconsideration filed beyond the 30-day deadline will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

6The respondent’s explanation for the delay in this case is that it sent several emails to the Tribunal requesting reconsideration but it did not receive any response until July 16, 2015.

7Despite the respondent’s assertions, the Tribunal’s Registrar has confirmed that it has no record of emails sent to or received from the respondent on or before July 16, 2015, regarding a request for reconsideration.

8Nevertheless, even if I were to accept that the emails were sent, I do not view this explanation demonstrates that the respondent’s delay was incurred in good faith. The fact that the respondent may have sent emails to the Tribunal rather than follow the proper procedure demonstrates a misunderstanding of the process. The Tribunal has ruled that a delay is not incurred in good faith simply because a party did not understand the process: see Sadeghzadeh v. Gesco Limited Partnership, 2012 HRTO 1109. There must be something more than simply a misunderstanding of the process to establish that a delay was incurred in good faith. Accordingly, I find that the request is untimely and should be dismissed on that basis alone.

The Merits

9Even if the Request for Reconsideration had been made in a timely manner, I would still deny the request, as the respondent has failed to establish the existence of any of the criteria in Rule 26.5 that might lead to reconsideration of the Tribunal’s decision.

10Rule 26.5 of the Tribunal’s Rules of Procedure provides that 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;

(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;

(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 and orders.

11The Tribunal has issued a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). The Tribunal’s Practice Direction on Reconsideration states, in part, the following with respect to the Tribunal’s power to grant reconsideration:

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.

12In this case, the respondent makes its Request for Consideration based on the submission that there are new facts or evidence that could potentially be determinative of the case.

13In its submissions, however, the respondent has not identified any new facts or evidence. Rather the facts and evidence that the respondent relies on were presented at the hearing and considered by the Tribunal in its original decision. The facts, in dispute, involve whether the applicant’s dog was wearing a vest identifying it as a service animal when the applicant entered the respondent’s restaurant. The Tribunal has already considered this evidence and preferred the applicant’s testimony over the testimony of the respondent’s witnesses. None of this is new evidence.

14The respondent also raised the issue that the applicant conceded in the hearing that her dog did not always wear the vest when she took it outside. Again, this is not new evidence. The applicant admitted at the hearing that if she was simply taking her dog outside to relieve it, she would not necessarily put on the dog’s vest.

15Based on my review of the reconsideration request, I do not find that any of the criteria supporting reconsideration of the original decision have been established. The respondent has failed to establish the existence of any of the criteria in Rule 26.5 that would lead to reconsideration of the Tribunal’s Decision. The only issue that the respondent raised in this request is that there are new facts that may be determinative of the case. The respondent, however, has not raised any new facts that were not considered at the hearing. The respondent has therefore, failed to discharge the onus under Rule 26.5(a).

16Accordingly, the request for reconsideration is denied.