Joseph Moses v. Mama’s Corner Restaurant, 2016 HRTO 139

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Moses Applicant

-and-

Mama’s Corner Restaurant Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart Date: January 29, 2016 Citation: 2016 HRTO 139 Indexed as: Moses v. Mama’s Corner Restaurant

WRITTEN SUBMISSIONS

Joseph Moses, Applicant Self-represented

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2015 HRTO 1204, dated September 10, 2015, which dismissed the Application.

2On October 20, 2015, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. While a Request for Reconsideration is supposed to be filed within 30 days of the final decision at issue under the Tribunal’s Rules of Procedure, I am nonetheless prepared to consider the applicant’s Request. I also have considered a handwritten letter submitted by the applicant which is dated September 18, 2015, but which was not received by this Tribunal until December 29, 2015.

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 on Reconsideration to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

5The Tribunal’s Practice Direction on Reconsideration includes the following:

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.

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 his Request for Reconsideration satisfies the criteria set out in Rule 26.5 relied upon in the Request. The applicant relies upon the criteria identified in Rule 26.5(c) and (d).

10The actual Request for Reconsideration provides scant reasons for overturning the Decision in this matter. The applicant alleges generally that I did not consider all of the evidence, but does not point to any specific evidence that he alleges I failed to consider. The applicant also makes reference to “prejudice about seating arrangement”, which I will address in more detail below. Finally, the applicant makes reference to “discrimination against us as First Nations people”. I am well aware that this was the allegation raised by the applicant in this proceeding, and this allegation was addressed at length and in detail in the Decision. Mere repetition of this allegation does not provide any basis to overturn the Decision in this matter.

11The issue of where the applicant, his mother and his sister were seated on the evening in question is the subject of the handwritten letter from the applicant dated September 18, 2015. The applicant asserts that he was telling the truth when he testified that he and his family members were sitting by the window, and that his evidence in this regard was supported by the server, C.W. He also asserts that the respondent and her witness were lying when they testified that he and his family were seated away from the window.

12I am well aware that this was a big issue for the applicant at the hearing, as he focused much attention on it during his submissions. I specifically address this issue in the Decision at para. 23. At the end of the day, it made no difference to me in reaching my conclusion where the applicant and his family were seated. I do not doubt the applicant’s evidence that they were seated by the window. It appeared to me that the evidence given by the respondent and her witness was more based on the general seating arrangements in the restaurant at the time in question, as opposed to any specific recollection as to where the applicant and his family were seated.

13However, that dispute does not have any bearing on the applicant’s allegation of discrimination against him as a First Nations person. When I noted the discrepancies in the evidence given by the applicant and the letters from his mother and sister in evidence before me, these discrepancies have nothing to do with where they were seated and everything to do with varying accounts of the time it took to receive certain courses. I also observe that the applicant’s principal allegation was that he and his family were discriminated against by the server, C.W. The owner of the restaurant was working in the kitchen on the evening in question, and had no knowledge of or interaction with the applicant or his family. The applicant did not take any issue with the conduct of the other server, G.C., who was not serving their table. In this regard, I note that it was C.W.’s evidence which supported the applicant’s evidence about where he and his family were seated. Given this fact, it is difficult for me to understand how the issue about where the applicant and his family were seated is capable of giving rise to any adverse finding of credibility as against C.W., let alone be relevant to the issue of alleged discrimination.

14As a result, I am not satisfied that the Decision is in conflict with established jurisprudence or Tribunal procedure or that the proposed reconsideration involves a matter of general or public importance. The applicant has not pointed to any jurisprudence or Tribunal procedure with which the Decision is alleged to be in conflict.

15I further am not satisfied that other factors exist that, in my opinion, outweigh the public interest in the finality of Tribunal decisions.

16For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.