Human Rights Tribunal of Ontario
B E T W E E N:
Andrey Wolkowski Applicant
-and-
Liquor Control Board of Ontario Respondent
RECONSIDERATION DECISION
Adjudicator: Douglas Sanderson Date: October 27, 2016 Citation: 2016 HRTO 1396 Indexed as: Wolkowski v. Liquor Control Board of Ontario
WRITTEN SUBMISSIONS
Andrey Wolkowski, Applicant Self-represented
1The applicant requests Reconsideration of the Tribunal’s Decision of August 23, 2016, 2016 HRTO 1117, dismissing this Application because the applicant did not meet the criteria under the definition of “record of offences” in section 10 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The circumstances in which Reconsideration may be granted are set out in Rule 26.5:
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 begins with the following statements:
Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
4The applicant relies upon Rules 26.5(c) and 26.5(d). The applicant’s submissions did not address how the Decision to dismiss the Application was in conflict with established jurisprudence or Tribunal procedure. Consequently, Rule 26.5(c) does not apply. In any event, the Tribunal has dismissed Applications in similar situations, i.e., where an applicant has been convicted of a criminal offence, but not pardoned, on several occasions. See Johnson v. Toyota Motor Manufacturing Canada, 2013 HRTO 1842; Cowan v. Durham Reporting and Mediation, 2012 HRTO 1841; and Gardner v. Accounts Recovery Corporation, 2014 HRTO 1755.
5With respect to Rule 26.5(d), the applicant argued that the Code and the Tribunal should not allow employers to discriminate against individuals who have been convicted for offences, but not pardoned. The applicant submitted that as a Canadian citizen, Ontario resident, taxpayer and voter, he has the right to be considered for employment regardless of his background. The applicant submitted that the Decision will create a sub-class of citizens who will be unable to obtain employment regardless of their skills, which poses a significant barrier to reintegration for ex-convicts.
Analysis and Decision
6Although the applicant seeks Reconsideration of the Tribunal’s Decision, he is really complaining about the definition of “record of offences” in section 10 of the Code. The Tribunal must apply the Code as it is written and has no authority to make decisions that are inconsistent with its terms. In Johnson, above, the Tribunal made the following comment that are in my view apt to this application:
In this case the applicant does not allege that he was convicted of a criminal offence, for which he subsequently received a pardon, which is the only basis on which the Tribunal has jurisdiction with respect to allegations relating to such offences. On the contrary the applicant appears to have a record of offence for which a pardon has not been granted and when asked by the respondent affirmed that he had. It is not contrary to the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h1