Vushaj v. ADM Agri-Industries Company, 2015 HRTO 1486

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bardhok Vushaj, Applicant

-and-

ADM Agri-Industries Company, Respondent

RECONSIDERATION DECISION

Adjudicator: Kathleen Martin Date: November 4, 2015 Citation: 2015 HRTO 1486 Indexed as: Vushaj v. ADM Agri-Industries Company

WRITTEN SUBMISSIONS

Bardhok Vushaj, Applicant Kendal McKinney, Counsel

1On January 7, 2015, the Tribunal issued a Decision dismissing this Application on the basis of delay: 2015 HRTO 19. The Tribunal concluded that it was not satisfied that the 19 month delay in filing the Application was incurred in good faith.

2The applicant has filed a Request for Reconsideration of that Decision. A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, I did not find it necessary to seek submissions from the respondent. This is the Tribunal’s Decision on the Request.

3For reasons that follow, the Request for Reconsideration is denied.

Analysis

4Pursuant to section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), any party to a proceeding before the Tribunal may request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request.

5Rule 26.5 of the Tribunal’s Rules of Procedure states that 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 has also issued a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. The Practice Direction highlights the discretionary nature of reconsideration:

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.

7In his Request, the applicant asks that the Tribunal reconsider its Decision pursuant to Rule 26.5 (c) and (d) of the Tribunal’s Rules of Procedure. However, I do not find that the applicant has established any of the factors that would justify granting reconsideration.

8A primary submission of the applicant is that the Tribunal did not follow the principles of established case law which were binding on the Tribunal. In particular, the applicant submits that it was an “error of law” for the Tribunal not to apply the Supreme Court of Canada decision in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307 (“Blencoe”) to the issue of delay before the Tribunal. To this end, the applicant makes extensive references to Blencoe and a decision of the Canadian Human Rights Tribunal in Raymond Gagné v. Canada Post Corporation, 2007 CHRT 18 (“Gagné”) in his Request. Both of these cases were cited and relied on by the applicant at the time the applicant made his original submissions.

9It is clear that the applicant disagrees with the Tribunal’s Decision and its consideration of Blencoe. However, the applicant already made submissions on Blencoe and the decision of the Canadian Human Rights Commission in Gagné. Reconsideration is not an opportunity to re-argue the case: Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34.

10I note that Blencoe and Gagné both addressed the issue of administrative delay at the hearing stage and whether the respondents in those cases should be granted relief (a stay or otherwise) on the basis that there had been unreasonable delay in processing the complaints such that it would be an abuse of process to proceed. In contrast, the Decision addressed the question of delay at the filing stage of the Application and whether the applicant had met the specific statutory criteria set out in the Code. I remain of the view that Blencoe is not directly applicable to the determination of the issue of good faith in the context of the statutory provisions of the Code.

11The applicant also requests reconsideration on the basis that the delay in this matter began with an officially induced error and this fact was given “insufficient weight” in the Decision. In his Request, the applicant submits that he had pled the facts underlying this claim but not the specific defence. In the Request, the applicant re-argues the issue relying on cases addressing the defence of officially induced error Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., 2006 SCC 12, [2006] 1 SCR 420; Maitland Valley Conservation Authority v. Cranbrook Swine Inc., 2003 CanLII 41182 (ON CA).

12As set out in the Practice Direction, reconsideration is not an appeal or an opportunity for a party to change the way it presents its case. As the applicant acknowledges he has already pled the facts underlying this defence and it does not appear that the applicant is suggesting that these cases justify his actions any differently from what he already argued in his original submissions. Rather, the applicant’s real concern appears to be that the Tribunal did not give “sufficient weight” to his claim that he had received erroneous information from the website of the Canadian government website listing federally regulated companies. This submission which again amounts to a disagreement with the Tribunal’s decision is not a basis for reconsideration. Further and in any event, I find that the Tribunal did consider his claim that he had relied on information on a government website which was found to be incorrect. In fact, the Tribunal acknowledged that a genuine belief that a matter is properly within federal jurisdiction (which the applicant stated he based on the website reference) may provide a good faith submission but went on to conclude that it was not satisfied that the entirety of the 19 month delay was incurred in good faith for reasons given (see paragraphs 31 and following).

13For the above reasons, the Request for Reconsideration is denied.