Kerr v. Henderson, 2016 HRTO 1327

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gordon Kerr

Applicant

-and-

Neville Henderson

Respondent

RECONSIDERATION DECISION

Adjudicator: Bruce Best

Date: October 13, 2016

Citation: 2016 HRTO 1327

Indexed as: Kerr v. Henderson

WRITTEN SUBMISSIONS

Gordon Kerr, Applicant

Self-represented

Introduction

1On August 3, 2016, the Tribunal issued its Decision, 2016 HRTO 1025 (“the Decision”), dismissing the Application. The applicant has asked the Tribunal to reconsider the Decision.

2Under 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. Rule 26 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.

3The 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.

4That 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.

5The applicant is relying on Rules 26.5.(a) and (c), above, though for the most part the applicant’s submissions are repeating arguments made orally before the Tribunal. A request for reconsideration is, however, not an opportunity to restate or re-argue a position already advanced and considered. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, at para. 56, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their 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.

6There are two of the applicant’s arguments for the reconsideration which I will briefly address. First, the applicant challenges the fact that I did not look behind his guilty plea to the criminal charges of breach of trust. The applicant claims that he pleaded guilty only because he was unable to afford to pay the legal costs associated with defending the charges. He maintains that the audit which led to the charges was questionable, and that if he could have afforded to pay for a lawyer to defend the criminal charges he would most likely have been acquitted.

7The law is clear, however, that the applicant cannot take a position before the Tribunal that is inconsistent with his guilty plea. In Hughes v. 1308581 Ontario, 2009 HRTO 341 (“Hughes”), the Tribunal considered a similar attempt by a party to present evidence contrary to the facts admitted when he pleaded guilty, and, relying on the Supreme Court decision in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, held that it would be an abuse of process to permit him to do so. The Tribunal in Hughes also noted at para 17 that the claim that the party had only pleaded guilty for financial reasons did not change its decision.

8Second, the applicant notes that the Decision did not refer to another document he submitted, a letter from the Sportsmen’s Club Galt Inc., signed by the respondent, sent to the applicant’s adult son rescinding the son’s club membership.

9The respondent is correct that the decision did not refer to this letter. The reason is that the letter describes actions taken against the applicant’s son, not against the applicant himself, and was as such had no bearing on the applicant’s case. The son is not a party to the present Application. The allegation that the respondent may have reprised against a third party is not a basis to justify granting the Request for Reconsideration.

10In 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.

Order

11For the above reasons, the Request for Reconsideration is dismissed.