HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Nahirny
Applicant
-and-
Liquor Control Board of Ontario and Ron Scarcello
Respondents
RECONSIDERATION DECISION
Adjudicator: David Mur
Date: August 8, 2016
Citation: 2016 HRTO 1008
Indexed as: Nahirny v. Liquor Control Board of Ontario
WRITTEN SUBMISSIONS
John Nahirny, Applicant
Self-represented
Introduction
1On May 13, 2016, the Tribunal issued its Decision in this Application, 2016 HRTO 648, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.
BACKGROUND
2The Tribunal’s Decision found that the Application must be dismissed because the applicant repeatedly declined to confirm his availability on proposed dates for the hearing.
THE REQUEST FOR RECONSIDERATION
3In his Request for Reconsideration the applicant relies on the following reasons why the Tribunal should reconsider its Decision:
a. That there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier
b. That he was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing
c. That the Decision request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.
4The respondents were not called upon to respond to the Request. For the reasons that follow the Request is dismissed.
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), (b), (c) and (d).
11The applicant provided lengthy submissions in support of this Request. They are often confusing and difficult to follow. The applicant begins his submissions with a lengthy recitation of his understanding of the Tribunal Chair’s powers contained in Rule 1.7 of the Tribunal’s Rules of Procedure.
12As noted above this Application was dismissed because the applicant refused to confirm his availability on any of the several dates offered for the re-scheduling of this case for hearing. None of the applicant’s submissions address that point.
13Despite arguing that the Request does not do so the applicant repeats arguments made orally and in writing before the Tribunal in dealing with prior preliminary issues. The Request is an attempt to re-argue most if not all of the issues which have been addressed in the several Interim Decisions and Case Assessment Directions issued in this case. In particular the applicant appears to take issue with Interim Decision 2015 HRTO 1601 released on November 25, 2015.
14The Request to the extent that it seeks reconsideration of the Interim Decision is well out of time. The applicant has provided no explanation for the delay in filing the Request and for that reason I would decline to grant that aspect of the Request. However I have also reviewed the applicant’s lengthy submissions. They are largely a lengthy statement of a number of administrative law principles with vague assertions about how the Tribunal’s Decision was in violation of those principles. It’s impossible to make any connection between the legal principles cited and the decisions that the applicant believes were incorrectly decided. So for example the applicant asserts without any actual reference to the Decision at paragraph 10 of his submissions as follows:
[The Tribunal] engaged in a flawed analysis of prima facie family status discrimination and reprisal making conflicting and vague findings of fact not clearly delineating the factual findings and underpinnings that resulted in his findings of no family status discrimination or reprisal where his decision is not rationally supported, did not fall within the range of possible acceptable outcomes defensible in fact and law, do not disclose a rational basis for the conclusion reached by the Tribunal where the range of rational decisions is so narrow as to determine the outcome, did not follow logically from the Tribunal's findings of fact, where the reasons were neither transparent nor intelligible within the meaning of Dunsmuir where the reasons breached the principles of natural justice and procedural fairness as they are not adequate to explain the basis for the decision or to permit meaningful appellate review and caused a substantial wrong which affected the final disposition of the matter [Section 45.8],
[The Tribunal] engaged a unfettered discretion to not address in any meaningful way the undue hardship and adverse impact making conflicting and vague findings of fact not clearly delineating the factual findings and underpinnings that resulted in his findings of no discrimination or onus on the respondents to prove of undue hardship which does not fall within the range of possible acceptable outcomes defensible in fact and law where the range of rational decisions is so narrow as to determine the outcome, do not disclose a rational basis for the conclusion reached, does not follow logically from the Tribunal's findings of fact, where the reasons were neither transparent nor intelligible within the meaning of Dunsmuir where the reasons breached the principles of natural justice and procedural fairness as they are not adequate to explain the basis for the decision or to permit meaningful appellate review and caused a substantial wrong which affected the final disposition of the matter [Section 45.8],
15The applicant’s submissions simply do not address the rationale for the Interim Decision which was in part that whether or not the applicant had changed family status needs there was no evidence that the respondent would have been aware of that at the material times. His submissions also do not address the other basis for the result in the Interim Decision that the applicant’s own documents established that he in effect withdrew from the accommodation process at the material times without actually informing the respondent that his needs for accommodation had allegedly changed.
16The applicant does assert that his medical evidence was ignored. It was not and as can be seen from the Interim Decision there was no determination of whether or not the applicant was entitled to new or additional family status accommodation rather it was clear that there was no new medical evidence given to the respondent until after the applicant had withdrawn from the accommodation process, filed this Application and appeared to be attempting to use the Tribunal process rather than dealing with his employer directly in seeking accommodation for an alleged family status need.
17In any case none of these submissions address the reasons for the Decision which dismissed the Application in its entirety. In my view the Interim Decision is somewhat beside the point given the Decision which dismissed the Application entirely because of the applicant’s later failure to comply with the Tribunal’s directions.
18The applicant does assert without any supporting factual submissions that the Decision should be reconsidered because of a reasonable apprehension of bias. These as with virtually all of the applicant’s submissions seem to be pieced together from passages taken from other decisions or legal texts. They are as indicated above mere recitations of legal principles related presumably to other cases and circumstances but with no reference to the facts of this case or the Decision.
19The applicant also seeks a direction with respect to a potential request that the Tribunal recuse itself. It is doubtful that in these circumstances the Tribunal has the authority to decline to exercise its jurisdiction however the applicant has asserted bias which is appropriately raised in a Request for Reconsideration. However as indicated above the applicant pleads no actual facts that would support a request for relief because of a reasonable apprehension of bias. The applicant’s lengthy lists of errors cannot be related to the Decision and are in fact in unconnected to the Decision. The Application was dismissed because the applicant repeatedly failed to comply with directions to confirm a date. He was warned on more than one occasion of the consequence of his failure to do so. For whatever reason the applicant chose not to confirm his availability and the Application was dismissed. Nothing in the applicant’s submissions address the rationale for the Decision.
20For all of these reasons the Request is dismissed.
Other Matters
21The applicant also made a number of requests that he be provided with documents he asserts are mandated by the Adjudicative Tribunals Accountability, Governance and Appointments Act, cite?? .Much of this material is publicly available on the website of the Social Justice Tribunals of Ontario or the Public Appointments Secretariat. The following links will provide access to the governance materials, and qualifications of Tribunal Members which the applicant seeks:
a. http://www.sjto.gov.on.ca/en/mandate-mission-values/
b. http://www.sjto.gov.on.ca/en/reports-plans-standards/
c. http://www.sjto.gov.on.ca/en/legislation-and-regulation/
Dated at Toronto, this 8^th^ day of August, 2016.
“Signed By”
David Muir
Vice-chair