HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Natalie McMahon
Applicant
-and-
Marvon Wilkinson
Respondent
A N D B E T W E E N:
Quentelin Vetira
Applicant
-and-
Marvon Wilkinson
Respondent
RECONSIDERATION DECISION
Adjudicator: Brian Eyolfson
Indexed as: McMahon v. Wilkinson
WRITTEN SUBMISSIONS
Marvon Wilkinson, Respondent
Self-represented
1On July 30, 2015, the Tribunal issued its Decision in these Applications, 2015 HRTO 1019, finding that the applicants had been subjected to discrimination by the respondent, and ordering a remedy. On August 28, 2015, the respondent filed a Request for Reconsideration (“Request”).
2In the Request, the respondent simply states that his initial responses to the applicants’ claims were not taken into consideration during the Tribunal’s decision. He asks that the cases be dismissed on the basis that there is no evidence against him.
RECONSIDERATION DECISION
3Under section 45.7 of the Human Rights Code, R.S.O.1990 c. H.19, as amended, 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 governing such requests as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers. 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.
5The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Parties may ask the HRTO to reconsider a final decision. The HRTO may also reconsider a decision on its own initiative where it considers it appropriate.
Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.
The rules for reconsideration are found in Rule 26 of the Rules of Procedure. A request for reconsideration will only be granted if the request meets one of the requirements in Rule 26.5.
Examples of situations where the HRTO has refused a request for reconsideration are where:
the request asks for review of an interim decision which does not finally decide the party’s rights or interests;
the request repeats arguments the party has made at the hearing or in written submissions;
a party disagrees with and wishes to challenge a finding of fact, including findings made about the credibility of witnesses;
a party wishes to raise new arguments that were not made, but could have been made at the hearing or in written submissions; and
a party received notice that an application could be dismissed as abandoned if steps were not taken, but did not follow the Tribunal’s directions by the deadline.
Examples of situations where the HRTO has reconsidered its decision are:
where a party, through no fault of its own, did not receive notice of a hearing or request for submissions; or
where exceptional factors exist that outweigh the public interest in the finality of decisions including inconsistencies in the HRTO’s case law.
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. 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.
7In the present case, while the applicant relies on Rule 26.5(a) of the Tribunal’s Rules, he has not pointed to any new facts or evidence that could potentially be determinative of these Applications and that could not reasonably have been obtained earlier. In support of his Request, the applicant simply submits that the Tribunal did not take into consideration his initial responses to the applicants’ claims.
8The substance of the respondent’s initial Responses to the applicants’ allegations set out in the Applications was very brief, and is summarized at paragraph 3 of the Tribunal’s Decision. In any event, the Tribunal’s Decision was based upon the evidence of the parties and their submissions provided at the hearing, as summarized in the Tribunal’s Decision. As explained in the Tribunal’s “Guide to Preparing for a Hearing” before the Tribunal, it is up to the parties to bring forward evidence to support their respective positions at the hearing, and the Tribunal bases its decision on the evidence and argument heard at the hearing.
9Also, as the Tribunal stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, reconsideration is not an opportunity to re-argue a case. Once the parties 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.
10In the circumstances, I find that the respondent has not met the burden of establishing any of the threshold criteria justifying reconsideration of the Tribunal’s Decision. The Request is denied.
Dated at Toronto, this 30th day of October, 2015.
“Signed By”
Brian Eyolfson
Vice-chair