Christopher McDonald-Rogers v. Humber College Institute of Technology and Advanced Learning, 2015 HRTO 240

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher McDonald-Rogers

Applicant

-and-

Humber College Institute of Technology and Advanced Learning, York University, Her Majesty the Queen in right of Ontario as represented by the Minister of Training, College and Universities, Holsee Sahid, Erin Teich, K. Doran, Christopher Whitaker and John Davies

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: February 26, 2015

Citation: 2015 HRTO 240

Indexed as: McDonald-Rogers v. Humber College

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2014 HRTO 879 dated June 13, 2014, which dismissed this Application due to the applicant’s failure to appear for the summary hearing.

2On July 11, 2014, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The 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).

5The 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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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 Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated 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.

8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

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.

9As a result, I need to determine whether the material filed by the applicant in support of the Request for Reconsideration satisfies any of the criteria set out in Rule 26.5. The applicant relies upon the criteria identified in Rule 26.5(a), (b) and (c).

10The primary basis for the applicant’s reconsideration request is that the Notice of Hearing issued to the parties on March 31, 2014 stated that the summary hearing would take place on June 13, 2014 commencing at 1:30 p.m., but did not indicate the time zone being referenced. Unbeknownst to the Tribunal, the applicant was living in British Columbia at the time of the summary hearing. He states that he attempted to dial in to the teleconference hearing at 1:00 p.m. Pacific Standard Time or PST (which was 4:00 p.m. Eastern Standard Time or EST) and when there was no answer after 15 minutes, he spoke with a Tribunal staff member and discovered that the summary hearing already had been concluded.

11In my view, this is not a proper basis upon which to account for the applicant’s failure to appear for the summary hearing. This is the Human Rights Tribunal of Ontario. There is only one time zone in almost all of Ontario, which is EST (with the exception of an area of Northern Ontario west of Lake Superior). On his Application, the applicant provided his address as being in Ontario. The applicant never advised the Tribunal that he was residing in British Columbia. In addition, on the Notice of Summary Hearing itself, the parties were directed to use a phone number in the 416 area code if they were in that local area. The 416 area code is entirely in the EST time zone.

12In my view, it simply makes no sense for the applicant to have assumed, as he says he did and without seeking any clarification from the Tribunal, that the summary hearing would commence at 1:30 p.m. PST rather than EST.

13While I appreciate that the applicant states that he is a person with a learning disability, no medical or other documentation has been provided in support of the Request for Reconsideration to establish any link between the applicant’s learning disability and his stated belief that the summary hearing commenced at 1:30 p.m. PST or his failure to take any steps to advise the Tribunal of his current place of residence or to clarify the start time for the summary hearing.

14Accordingly, I find that the applicant did receive notice of the summary hearing and ought reasonably to have understood that the summary hearing would commence at 1:30 p.m. EST. I further find that it cannot be said that the applicant’s failure to attend the summary hearing was through “no fault of his own”, given his failure to advise the Tribunal of his current place of residence or to seek clarification as to the applicable time zone. As a result, I find that the applicant has not satisfied the requirements for reconsideration under Rule 26.5(b).

15While the applicant has indicated on his Request for Reconsideration that he is relying upon Rule 26.5(a), his Request did not articulate any new facts or evidence that could not reasonably have been obtained earlier. I am aware that, by e-mail dated August 15, 2014, the applicant advised the Tribunal that he had received a decision lifting his student loan account and the request for repayment of an over-award, and that he had received Ontario Student Loan Program funding that has enabled him to resume his post-secondary studies. This formed part of the relief that the applicant had requested in his Application. However, this is not new facts or evidence that would have addressed the issue to be considered at the summary hearing, namely whether the Application has a reasonable prospect of success in establishing a violation of the Code. As a result, I see no basis for granting reconsideration under Rule 26.5(a).

16Finally, while the applicant also has cited Rule 26.5(c), he has not identified any jurisprudence or Tribunal procedure with which he alleges the underlying Decision is in conflict.

17For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.