Fatiha Khaldi v. TBM Holdco Ltd., 2016 HRTO 1001

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fatiha Khaldi

Applicant

-and-

TBM Holdco Ltd.

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: August 2, 2016

Citation: 2016 HRTO 1001

Indexed as: Khaldi v. TBM Holdco Ltd.

WRITTEN SUBMISSIONS

Fatiha Khaldi, Applicant

Self-represented

Introduction

1On June 24, 2016, the Tribunal issued its Decision in this Application, 2016 HRTO 851, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2The Tribunal’s Decision found that the Application should be dismissed because after hearing the applicant’s evidence it was determined that the Application had no reasonable prospect of success.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. There are facts of evidence that could potentially be determinative of the case and that could not reasonably been obtained earlier;

b. There are other factors that outweigh the public interest in the finality of the Tribunal’s decisions.

4The respondent was not called upon to respond to the Request.

THE LAW

5Under 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.

6The 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, last amended April 2014). 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.

7The Tribunal’s Practice Direction on Reconsideration includes the following statements:

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.

8As 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.

ANALYSIS AND CONCLUSIONS

9I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

10As indicated above, the applicant relies on Rule 26.5 (a) and (d).

11The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. Rather, the applicant takes issue with the determinations made by the Tribunal in its Decision.

12The applicant also argues that she was unrepresented and the respondent was represented by two lawyers. The applicant argues that she felt rushed and was unprepared to deal with the issues raised in the course of the hearing. The applicant does not claim that she asked for an adjournment in order to prepare herself for the hearing and does not explain why she was unprepared.

13The applicant argues that she did not have an opportunity to question the respondent’s witnesses and the case should have continued on the second scheduled day. As discussed in the Decision, the Tribunal has adopted procedures that seek to ensure the fair, just and expeditious adjudication of disputes before it. This includes an approach that does not always require a respondent to call its case where it appears that the Application has no reasonable prospect of success.

14In the end, the applicant does not agree with the Tribunal’s conclusions. That is not a proper basis for reconsideration. It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist, above, the Tribunal stated that 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.

15In 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.