Zhao v. Pizza Nova Take Out Ltd., 2016 HRTO 1606

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yang Zhao

Applicant

-and-

Pizza Nova Take Out Ltd. and Ryan Shorten

Respondents

RECONSIDERATION DECISION

Adjudicator: Laurie Letheren Date: December 13, 2016 Citation: 2016 HRTO 1606 Indexed as: Zhao v. Pizza Nova Take Out Ltd.

WRITTEN SUBMISSIONS

Yang Zhao, Applicant

Self-represented

1On March 17, 2014, the applicant filed an Application in which he alleged that the respondents discriminated against him on a number of grounds contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Tribunal issued Decision 2016 HRTO 1166 (the “Decision”), in which the Application was dismissed as the applicant had not established on a balance of probabilities that he was subjected to any discrimination or harassment by the respondents contrary to the Code.

3The applicant has filed a Request for Reconsideration of the Decision.

ANALYSIS

4In 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 Tribunal has made a decision in a case, parties are entitled to treat the matter as closed, subject to limited exceptions.

5The circumstances in which a Request for Reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s Rules of Procedure.

6A 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 statements above, reconsideration is a discretionary remedy. That is, while the Tribunal has the power to 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.

9The applicant has indicated that the basis for his reconsideration request is that factors exist that outweigh the public interest in the finality of Tribunal decisions.

10As remedy, the applicant is requesting $5,000.00 plus interest and “to reconsider credibility of the respondents in all other matters of this case.”

11The applicant states that he went through the Decision and did not find any statements made with respect to the $5,000.00 owed by the respondents to the applicant at the time of closing the franchise business. The applicant states that his records show that arguments were presented about this at the Tribunal hearing and his evidence clearly showed a shortfall in payment which the respondents denied.

12The applicant attached a handwritten statement of his calculations of this alleged $5,000.00 shortfall.

13It appears that the reason that the applicant filed the Request is because he is still alleging that he is owed money by the respondents and the Tribunal did not make an order that the respondent needs to pay this amount. As I have indicated above, reconsideration is not an opportunity to reargue the Application or an opportunity for a party to change the way it presented its case.

14The Tribunal made a finding that the applicant had not proven on a balance of probabilities that the respondents breached his Code rights. As a result, the Application was dismissed, which meant that no remedies were ordered.

15The Decision appears to address the sale of the franchise in paragraphs 104 to 114. The jurisdiction of the Tribunal is to determine whether the applicant experienced a breach of his Code rights on the basis of his ancestry, place of origin, ethnic origin or age as these are grounds protected by the Code under which the applicant alleged he experienced a breach of his rights. What the applicant appears to be asking the Tribunal to address is a shortfall from a contract negotiation between the parties. The Tribunal does not have the jurisdiction to address breach of contracts or payment shortfalls unless this shortfall resulted from a breach of the applicant’s Code rights, which the Tribunal found the applicant had not proven on a balance of probabilities.

16It would appear the applicant had the opportunity to address this shortfall during the Tribunal hearing.

17The applicant has not established the existence of any of the criteria in the Tribunal’s Rule 26.5 that would lead to reconsideration of the Tribunal’s Decision.

ORDER

18The Request for Reconsideration is denied.