Amazan v. Toronto Catholic District School Board, 2016 HRTO 499

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Felix Amazan Applicant

-and-

Toronto Catholic District School Board, Toronto Police Services Board, Corrado Maltese, John Shain, Norma Rios, Sylvie Talarico and Lynn Beveridge Respondents

Felix Amazan Applicant

-and-

Toronto Catholic District School Board, Sylvie Talarico, Peter Bernotas, Ontario English Catholic Teachers Association, Marshall Jarvis, Mary Lachapelle, Toronto Elementary Catholic Teachers, Mario Bernardo, Robert MacNeil, Cavalluzzo Hayes McIntyre & Cornish, Christopher Perri, Patrice Band and Shannon O’Connor Respondents

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw

Date: April 18, 2016

Citation: 2016 HRTO 499

Indexed as: Amazan v. Toronto Catholic District School Board

WRITTEN SUBMISSIONS

Felix Amazan, Applicant Self-represented

Introduction

1On February 18, 2016, the Tribunal issued its Decision in this Application, 2016 HRTO 218 (“Decision”), dismissing the Application. The applicant requests in his Form 20 Request for Reconsideration (“reconsideration request”) that the Tribunal reconsider its Decision.

BACKGROUND

2I determined in the Decision that many of the allegations in these Applications were untimely, and they were dismissed on that basis because the applicant provided no good faith explanation for the delay.

3The only timely allegation in Tribunal File No. 2015-21393-I was the alleged refusal in August, 2014 to provide the applicant with a lawyer to assist him with his Human Rights Application, which was dismissed as having no reasonable prospect of success.

4The only timely allegation in Tribunal File No. 2015-21315-I that the TCDSB suspended the applicant without pay on July 10, 2014, which also was dismissed as having no reasonable prospect of success.

THE REQUEST FOR RECONSIDERATION

5The applicant’s reconsideration request gives the following reasons why the Tribunal should reconsider its Decision:

a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;

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

c. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

6More specifically, the applicant alleges:

a. I interrupted his submission to ask him questions and advised the applicant he could say only new things, which led to his missing parts of his submission, which the applicant alleges contravenes the Tribunal’s Practice Direction that it will hear submissions from both parties;

b. I referred to Ms. Rios as a teacher when she is an educational assistant;

c. I referred to Mr. Bernardo and Mr. Jarvis as interfering with the court process but failed to mention Ms. Band and Ms. O’Connor;

d. I failed in many instances to understand what the applicant meant;

e. I failed to ask the applicant about his allegation with respect to the lawyers generally, as well as Mr. MacNeil, Mr. Jarvis, Mr. Bernardo and Ms. Lachapelle;

f. I failed to ask the applicant about his allegation that OECTA and TECT invited four teachers to make complaints about him;

g. I made the wrong decision that the failure of OECTA and TECT to provide the applicant with a lawyer was done according to their policy;

h. I made the wrong decision with respect to the delay issue because it is not the applicant’s fault that his former lawyer refused to include all of his allegations in his Application;

i. I made the wrong decision with respect to the timeliness issue;

j. I made the wrong decision with respect to the issue of no reasonable prospect of success because the TCDSB was intelligent and tried to hide the discrimination and harassment in calling the police and with respect to his arrest and the fabricated complaints from the four teachers.

THE LAW

7Under 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.

8The 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.

9The 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.

10As 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

11I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

12As indicated above, the applicant relies on Rule 26.5(a), (c) and (d).

13With respect to Rule 26.5(a), the applicant introduces no new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. All of the information the applicant provides in his 17 page Request for Reconsideration is either a repetition of the facts contained in his Application or his submissions, or it adds details to facts that already were included in the applicant’s submissions or Application, and adds nothing that could not have been reasonably obtained earlier and included in either the Application or in the submissions. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. There is nothing in the applicant’s request, summarized at paragraph 6, above, that constitutes new facts or evidence.

14The applicant also alleges that my decision is in conflict with established jurisprudence, in contravention of Rule 26.5(c). However, the applicant does not explain how, nor am I convinced that any findings I made in the Decision are in fact in conflict with established jurisprudence. In fact, the applicant did not identify any case law nor identify in any way how my analysis in the Decision is in conflict with any case law. In addition, even if I am wrong, the applicant must also show that the proposed reconsideration involves a matter of general or public importance, which he has failed to do.

15The Tribunal also stated in Sigrist that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the applicant clearly disagrees with my findings and conclusions, I am satisfied that his submissions in this reconsideration request do not establish that my Decision conflicts with established jurisprudence. As stated in paragraph 14, above, the applicant does not set out any established jurisprudence with which he believes my Decision is in conflict.

16Finally, the applicant also requests that the Tribunal allow the reconsideration request because there are other factors that exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions. I address the applicant’s reasons for the request in the following paragraphs.

17The applicant’s complaint that I interrupted him is not a valid reason to allow the reconsideration in this case because the applicant was provided every opportunity to make his oral submissions. The allegation also is inaccurate. In addition, the allegations in paragraph 6, above with respect to my failing to ask him about certain of his allegations is not a valid reason to allow the reconsideration in this case. Not only was the applicant permitted to make his initial submissions but he also was afforded an opportunity to make reply submissions. I also asked at the end of all the submissions if the applicant had anything to add. My instruction to all parties that they should not repeat information already contained in the pleadings or in the written submissions is not a reason to allow the reconsideration. In addition, the few questions I put to the applicant were designed to guide him so he would respond to the issues that were relevant to this preliminary hearing without arguing his case on the merits, which was not the purpose of the preliminary hearing. My method of proceeding accorded with Rule 1.6 of the Tribunal’s Rules of Procedure, which states that the Tribunal will determine how a matter will be dealt with and may use procedures other than traditional adjudicative or adversarial procedures.

18With respect to the fact that I referred to Ms. Rios as a teacher when she is an educational assistant is an error, and has no bearing on the outcome of the preliminary hearing. The allegation that I referred in the Decision to Mr. Bernardo and Mr. Jarvis as interfering with the court process but failed to mention Ms. Band and Ms. O’Connor also is irrelevant to the outcome of the preliminary hearing. I dealt with all the relevant allegations against each of these parties with respect to the issues that were the subject of the preliminary hearing, namely whether the allegations were timely and whether they had any reasonable prospect of success.

19With respect to the applicant’s complaints that I made the wrong decision on a number of points, it is important to note that the issues raised in this reconsideration request were the subject of submissions before me, and were dealt with in my Decision. In Sigrist, above, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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. I find that the submissions in this Request amount to either the same, or additional, argument on issues already fully canvassed before the Tribunal.

20In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.