Gooden v. Durham District School Board, 2016 HRTO 463

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rueben Gooden

Applicant

-and-

Durham District School Board (Durham Continuing Education), CSH Wynfield Retirement Residence Inc., The Regional Municipality of Durham (Income and Employment Support Division), Rob Harvey, Gaynor Blake, Anne LeBlanc, Lynn Bell and Diane Goldhawk

Respondents

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: April 12, 2016

Citation: 2016 HRTO 463

Indexed as: Gooden v. Durham District School Board

WRITTEN SUBMISSIONS

Rueben Gooden, Applicant

Self-represented

Introduction

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which he alleged discrimination in respect of employment on the basis of race, disability and age. He also alleged that he experienced reprisal contrary to the Code.

2The Tribunal held a preliminary hearing to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that the Application or part of the Application would succeed and, if the Application were to proceed, to address the respondents’ requests to remove the individual respondents.

3Following the preliminary hearing held on October 14, 2015, the Application was dismissed by way of a decision dated January 12, 2016 (2016 HRTO 44).

4On January 26, 2016, the Tribunal received a Request for Reconsideration (Form 20) from the applicant. Although not required to do so, the applicant also filed further written submissions on March 16, 2016. While the letter containing the submissions was addressed to the Chair of the Ontario Human Rights Commission, the Tribunal has considered the letter and the arguments outlined therein as part of the applicant’s request for reconsideration as it was sent to the Tribunal. The respondents have not been called upon to file a Response to the Reconsideration Request and they have not done so.

5The applicant argues that reconsideration is warranted in this case on the grounds that there are new facts or evidence that could potentially be determinative of the case that could not reasonable have been obtained earlier and the decision is in conflict with established jurisprudence or Tribunal procedure and the reconsideration involves a matter of general or public importance.

6This is the Tribunal’s Decision on the Request for Reconsideration.

Request for Reconsideration

7Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions:

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.

8Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration 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).

9Most relevant to this decision is Rule 26 which reads, in part, as follows:

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 and orders.

10The 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.

11As 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.

12The applicant has based his request on Rule 26.5(a) and (c). In his Form 20, the applicant asserts that the adjudicator acted in bad faith, failed to examine all the evidence and erred in interpreting the law.

13Having reviewed the Form 20 and the subsequent letter containing submissions, I find that the arguments raised by the applicant are essentially reiterations of positions that he articulated during the preliminary hearing and in his previous written materials. Although it is apparent that the applicant has a strongly held view that he experienced discriminatory treatment and reprisal, he has not made submissions that fall within the scope of Rule 26.5(a) or (c), and that warrant reconsideration of the Decision made to dismiss this Application on the basis that there is no reasonable prospect that it will succeed. As such, I find no basis to grant reconsideration of the Tribunal’s Decision of January 12, 2016.

14The Request is denied.