Levkivska v. Peel Condominium Corporation No. 231, 2016 HRTO 956

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Oksana Levkivska and Yuriy Grygorchuk

Applicant

-and-

Peel Condominium Corporation No. 231

and Elizabeth Ann deCasseres

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: July 21, 2016

Citation: 2016 HRTO 956

Indexed as: Levkivska v. Peel Condominium Corporation No. 231

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2016 HRTO 270 dated February 29, 2016, which dismissed the Application pursuant to s. 45.1 of the Code and as an abuse of process.

2On March 26, 2016, the applicants filed a Request for Reconsideration of the Tribunal’s Decision.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”) provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction on Reconsideration to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

5The Tribunal’s Practice Direction on Reconsideration includes the following:

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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

7In 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 to an Application 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.

8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

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.

9As a result, I need to determine whether the material filed by the applicants in support of their Request for Reconsideration satisfies the criteria set out in Rule 26.5 relied upon in the Request. The applicants rely upon the criteria identified in Rule 26.5(a).

10While the applicants’ purport to rely upon Rule 26.5(a), which requires that they show that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, the submissions in support of their reconsideration request do not set out any such new facts or evidence. What the applicants instead appear to be arguing is that the Decision was incorrect in law, which would be an argument under Rule 26.5(c) or perhaps also (d). Accordingly, I will consider their submissions under these criteria.

11The principal submission made by the applicants is that their allegations of discrimination in violation of the Code were not raised in the civil proceeding, and therefore cannot properly be considered to have been “appropriately dealt with” by the Court in the civil proceeding. The fact that the discrimination allegations were not expressly raised in the civil proceeding was dealt with and recognized in the Decision: see para. 33. However, as stated in the Decision, given the Court’s ruling and the fact that the very same events and factual allegations were raised in the civil proceeding, it was my determination that the findings made by the Court in relation to the factual underpinnings of the Application preclude a conclusion that the applicants’ Code rights were infringed.

12The applicants raise, by way of analogy, a situation where a person whose employment has been terminated is entitled both to bring a civil action for wrongful dismissal and also proceed with an application before this Tribunal alleging a violation of their rights under the Code. The applicants are correct that this is permissible in most circumstances. However, in a situation where the civil action proceeds first and factual findings are made that preclude the person’s ability to succeed with her or his allegations of discrimination before this Tribunal, then an applicant in such a situation could very well face the same result as the applicants in the instant case. For example, if the employer defended the civil action on the basis that it had just cause for the employee’s dismissal and if that defence was upheld by the Court, then in the context of any human rights application filed by the employee, this Tribunal would similarly need to consider whether this factual finding by the Court appropriately dealt with the factual underpinnings of the human rights application and precluded the employee’s ability to succeed with a claim of discrimination before this Tribunal.

13In any event, entirely apart from the issue under s. 45.1 of the Code, this Application also was dismissed as an abuse of process, on the basis that it constitutes an impermissible attempt by the applicants to split their case and violates the principles of judicial economy and the integrity of the administration of justice: see paras. 39 to 43. The applicants have provided no basis in their submissions on reconsideration to support overturning this aspect of the Decision.

14Accordingly, entirely apart from there being no new facts or evidence presented by the applicants in support of their reconsideration request, I also find that the Decision is not in conflict with established jurisprudence or Tribunal procedure and that no other factors exist that outweigh the public interest in the finality of Tribunal decisions.

15For all of the foregoing reasons, the applicants’ Request for Reconsideration is denied.