Ren v. College of Massage Therapists of Ontario, 2016 HRTO 540

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Grace Ren

Applicant

-and-

College of Massage Therapists of Ontario

Respondent

RECONSIDERATION DECISION

Adjudicator: Mary Truemner

Date: April 25, 2016

Citation: 2016 HRTO 540

Indexed as: Ren v. College of Massage Therapists of Ontario

APPEARANCES

Grace Ren, Applicant

Wade Poziomka, Counsel

College of Massage Therapists of Ontario, Respondent

Julia Brown, Counsel

Introduction

1On February 1, 2016, the Tribunal issued its Decision in this Application, 2016 HRTO 147, dismissing the Application (“the Decision”). The applicant has asked the Tribunal to reconsider the Decision.

BACKGROUND

2The Tribunal’s Decision dismissed the Application because it was filed outside the limitation period of one year provided for in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and the applicant did not establish a good faith reason for the delay. In deciding whether certain events might be treated as incidents of discrimination, the Tribunal found that a decision to caution the applicant issued by the respondent’s Investigations and Complaints Review Committee (“the Committee”), as well as the resulting caution that the Committee subsequently issued, could not be admissible in Tribunal proceedings given s.36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA), and could therefore not be characterized as an incident of discrimination as urged by the applicant.

THE REQUEST FOR RECONSIDERATION

3The reason provided by the applicant for why the Tribunal should reconsider the Decision is that factors exist that outweigh the public interest in the finality of Tribunal decisions, specifically, that the Tribunal made an error of law in its interpretation of s.36(3) of the RHPA.

DECISION

4Under 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.

5The 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 amended June 2008). Rule 26.5 states:

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.

6The 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.

7As 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.

8A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered; yet, the applicant is reiterating arguments made earlier in the process and considered in the Decision. Essentially, the applicant is arguing that the Decision is wrong. As stated earlier, reconsideration is not an appeal.

9While it is evident that the applicant disagrees with my finding concerning s.36(3) of the RHPA, and she believes that it may have the effect of excluding claims of other health professionals against their governing or regulatory bodies, I do not agree that the proposed reconsideration involves a matter of general or public importance.

order

10The Reconsideration Request is dismissed.