Carla Borba v. Toronto Transit Commission, 2016 HRTO 1638

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carla Borba

Applicant

-and-

Toronto Transit Commission

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: December 20, 2016

Citation: 2016 HRTO 1638

Indexed as: Borba v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Carla Borba, Applicant

Self-represented

Introduction

1On November 3, 2016, the Tribunal issued its Decision in this Application, 2016 HRTO 1430, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

2In the Decision the Application was dismissed as abandoned. The Decision also dealt with the removal of the applicant’s representative from the proceeding and a request by the applicant that the Vice-chair presiding recuse himself.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general matter of public importance;

b. Other factors exist which outweigh the public interest in the finality of Tribunal decisions.

4The respondent was not called upon to respond to the applicant’s Request.

THE LAW

5Under 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.

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.

6The 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 (Practice Direction on Reconsideration, January 2008, last amended April 2014). Most relevant to this Decision is Rule 26 which 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.

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 above, reconsideration is a discretionary remedy. That 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.

ANALYSIS AND CONCLUSIONS

9I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

10As indicated above, the applicant relies on Rule 26.5 (a), (c) and (d).

11The applicant asserts without any evidence that there was a conspiracy between the respondent and the Vice-chair to effect the following:

a. Remove her representative;

b. Deny her request that the Vice-chair recuse himself because of actual bias; and

c. The dismissal of her Application.

12The decision to remove the applicant’s representative was made in Interim Decision 2015 HRTO 329. When the applicant’s representative attended the first day of hearing on March 30, 2015, and sought leave to appear, the Vice-chair chose to treat this as a request to reconsider his prior determination. After hearing the parties’ submissions, the reconsideration was denied with reasons in the Decision.

13The Vice-chair then sought the parties’ submissions about whether or not an adjournment would be appropriate at that stage in light of his removal of the applicant’s representative. The applicant indicated that she wished to proceed.

14After several more days of evidence the applicant requested that the Vice-chair recuse himself because of actual bias. After hearing the parties’ submissions, the request was denied. I note that the applicant’s arguments in this Request appear to have been made at the time of her recusal request.

15The applicant left the hearing before final submissions.

16In these circumstances the only basis upon which the Tribunal could consider this Request is if there are new facts and evidence within the meaning of Rule 26.5 (a). This is so for two reasons. First, the issue of the removal of the applicant’s representative has been considered by the Tribunal twice, once as a Request for Reconsideration. Only in the most extraordinary of circumstances will the Tribunal entertain more than one Request for Reconsideration. Accordingly, I have not considered these submissions of the applicant to the effect that the decision of the Tribunal to remove the applicant’s representative was incorrect. Second and more generally, the issues raised by the applicant’s Request have been addressed by the Tribunal in the Decision.

17In 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 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. I find that most of the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

18Accordingly, I find that unless the applicant can point to new facts or evidence potentially determinative of the request that the Vice-chair recuse himself, that could not reasonably have been obtained earlier, this Request should be dismissed. To be clear the applicant must persuade me that there is sufficient evidence that the Vice-chair was biased and ought to have recused himself in order for her to be successful in this Request. That is because the Application was dismissed as abandoned when the applicant left the hearing room prior to the conclusion of the hearing.

19Leaving aside the question of whether or not any alleged new facts could potentially be determinative of this issue – are there any new facts alleged which were not reasonably available to the applicant at the time of her request? Given that the recusal request was made and then denied, followed immediately by the applicant’s leaving the hearing, it must be inferred that there would be few if any such facts. If there are assertions that the applicant could have relied upon at the time but did not for whatever reason, these are not new facts or evidence within the meaning of the rule.

20The applicant asserts that there are new facts which only came to her attention after the last day of hearing, October 28, 2015. Central to the Request is the alleged conspiracy between the Vice-chair and the respondent. To support this assertion the applicant relies on the fact that the description of the events leading to the Application being dismissed as abandoned contained in the respondent’s Response in a related Ontario Labour Relations Board proceeding is similar to the description of the same series of events contained in the Decision. This material may have only come to the attention of the applicant after the last day of hearing. However, the fact that these descriptions of the final minutes of the hearing are similar does not give rise to an inference of collusion. Much more is required to establish the conspiracy relied on by the applicant.

21The applicant also relies in part upon what she claims is a transcription of a recording that she made of all or part of the hearing. This recording was made surreptitiously as there is indication in the Decision that leave to record the proceeding was requested by either party and no Order of the Tribunal authorizing the recording of the hearing.

22I also note Tribunal Rule 3.7 which provides as follows:

The Tribunal does not normally record or transcribe its proceedings. Where a hearing is recorded the recording does not form part of the Tribunal’s record of proceedings including any record filed in respect of an application made under the Judicial Review Procedures Act.

23In addition the applicant has only provided what appear to be edited portions of certain exchanges between herself, the respondent and the Vice-chair. It is telling that the applicant asserts that the Vice-chair told the parties that he had decided the case before it was concluded but does not include a “transcription” of this portion of the hearing in her submissions.

24Despite these concerns I have considered what the applicant has provided in coming to these conclusions. In my view these exchanges only confirm my conclusion that there are no new facts as contemplated by Rule 26.5(a). The applicant was or clearly ought to have been aware of these exchanges which appear to have taken place the day before her recusal request. Accordingly they were either referred to in her submissions at the time or ought to have been. In either case, whatever inferences the applicant might wish one to draw from them, they cannot be relied on at this stage because they would have or should have been raised at the time. Moreover, having reviewed the portions of the exchanges the applicant provides and her argument about them, I am unable to conclude that there is any basis to reconsider the decision of the Vice-chair to deny the applicant’s request.

25The applicant clearly believes that the Tribunal’s decision to remove her representative was unfair and influenced by bias. As a consequence, when her recusal request failed she left the hearing, with the result that the Application was dismissed as abandoned. Perhaps she should have remained. However, the issues she raised at the time were carefully considered by the Tribunal and reasons provided in the Decision. The applicant’s belief that the Decision was wrong is not a basis for reconsideration.

26For these reasons the Request for Reconsideration is dismissed.