HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rongzhen (Tina) Tian
Applicant
-and-
Mike Niven Interior Design Inc.
Respondent
RECONSIDERATION DECISION
Adjudicator: Aida Gatfield
Indexed as: Tian v. Mike Niven Interior Design Inc.
WRITTEN SUBMISSIONS
Rongzhen (Tina) Tian, Applicant
Self-Represented
Introduction
1The applicant seeks reconsideration of Tribunal Decision 2016 HRTO 975 which dismissed her Application following a summary hearing.
2The Application was dismissed on the basis of no reasonable prospect of success. At the summary hearing the applicant was unable to point to any evidence that she had or which may be reasonably be available to her at a hearing of the merits of her Application that could support her allegation that the respondent’s alleged negative treatment of her was because of her age. During the summary hearing the applicant also sought to amend her Application to add additional grounds. The Tribunal indicated that it would not hear other grounds at the summary hearing and if the applicant wished to add grounds she needed to file a Request for Order During Proceedings. Subsequent to the summary hearing, by Case Assessment Direction, the Tribunal directed that she file a Request for Order During Proceedings if she wished to amend her Application. She did so. The request to amend was denied. The application was dismissed thereafter.
ANALYSIS OF REQUEST FOR RECONSIDERATION
3Under section 45.7 of the Ontario Human Rights Code (“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.
4Rule 26.5 of the Tribunal’s Rules of Procedure (“Rules”) sets out the circumstances in which a Request for Reconsideration may be granted:
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 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.
6In Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34 the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the Tribunal has made a decision in a case, parties are entitled to treat the matter as closed, subject to limited exceptions.
7As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the power to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the consideration of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.
8The applicant’s Request for Reconsideration indicates that the reason for making this Request is that “there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier”.
9At the summary hearing the applicant was provided with an interpreter. In the submissions in support of her Request for Reconsideration the applicant states that the interpreter did not translate everything. However, she does not point to anything in the Decision that she says was due to a misinterpretation. Further, she states that she completed the Form 10 Request for Order During Proceedings incorrectly when seeking to amend her Application to add new grounds; she submits that she did not know that she was to provide reasons and evidence at that time of filing the request. I note that question 4 of the Form 10 asks “What are the reasons for the Request, including any facts relied on and submission in support of the Request.”
10The facts, which the applicant relies on as new evidence, repeat the allegations that were set out in the narrative of the Application and upon which she expanded during the summary hearing. New information which the applicant raises in the Request for Reconsideration is that she is Chinese, English is her second language and she speaks with an accent. These facts were known to her at the time, and so cannot be considered new facts or evidence within the meaning of Rule 26.5(a).
11The applicant also attached emails between a representative of the respondent and its legal counsel. Although these emails were not filed for the summary hearing, the applicant did rely on the contents of them. She also attached additional documents to the Request for Reconsideration. The same documents were filed for the summary hearing. All of these documents were referenced by the applicant in her submissions during the summary hearing so she was obviously aware of them at the time of the summary hearing. As a result, these documents also cannot be considered new facts or evidence within the meaning of Rule 26.5(a).
12In her Request for Reconsideration, the applicant does not provide any facts or evidence she has that is new, that could be determinative of the case, and that she could not have reasonably obtained earlier.
13I find that the applicant has not demonstrated that the basis for her Reconsideration Request meets the criteria in Rule 26.5(a) that would allow me to grant a reconsideration of my Decision. The applicant’s Reconsideration Request does not raise any other basis for seeking reconsideration.
14Accordingly, the Request for Reconsideration is denied.
Dated at Toronto, this 19th day of September, 2016.
“Signed By”
Aida Gatfield
Member