Saunders v. Monkey See Monkey Do, 2017 HRTO 1048

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ochea Saunders

Applicant

-and-

Monkey See Monkey Do

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: August 14, 2017

Citation: 2017 HRTO 1048

Indexed as: Saunders v. Monkey See Monkey Do

WRITTEN SUBMISSIONS

Ochea Saunders, Applicant

Self-represented

Introduction

1On June 8, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 636, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

THE REQUEST FOR RECONSIDERATION

2The Request for Reconsideration provides the following reason why the Tribunal should reconsider its Decision:

a. That there were procedural irregularities during the hearing, in particular that an exclusion order was violated by the respondent

3The respondent was not called upon to respond to this Request.

THE LAW

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, 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.

6The 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.

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.

ANALYSIS AND CONCLUSIONS

8I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

9As indicated above, the applicant relies on Rule 26.5(d). The applicant argues that her right to a fair trial guaranteed by the Charter of Rights and Freedoms was violated when the respondent breached the exclusion order.

10In support of its Request, the applicant essentially repeats arguments made orally before the Tribunal A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

11This issue was argued and addressed both at the hearing and in the Decision at paras 11 to 13:

At the hearing I heard the evidence of the applicant, the owner of the respondent, and a supervisor of the respondent. There was an Order excluding witnesses. During the evidence of the owner, I noted that the second respondent witness was in the room. It would have been obvious to everyone that she was there as she was seated at counsel table. I interrupted the evidence of the owner to advise the parties of the issue and direct that the witness leave the room. Counsel for the respondent apologized and indicated that the Order had slipped her mind. The witness was not in attendance at the start of the hearing and would not have been aware of the Order unless advised of it.

At the time that I intervened and directed that the witness leave the room, I noted that the evidence of the owner to that point was entirely background and that no harm had been done. After the witness left the room the applicant became upset and left the hearing room for a few moments.

At the conclusion of the hearing the applicant asked that I strike the supervisor’s evidence. I have considered this request and it is denied. Even if the respondent had deliberately attempted to avoid my Order, and there is no basis to conclude that it had, the fact is, as I indicated when I interrupted proceedings and directed that the witness leave the room, the evidence of the owner to that point was entirely background and entirely immaterial to the issues in dispute in the case. There was, as I indicated to all at the hearing, no harm done.

12It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. 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 additional argument on issues already fully canvassed before the Tribunal.

13The applicant also argues that the respondent should have led its evidence first. I do not understand this submission. Normally an applicant will lead their evidence first. In any case, if the applicant wanted to request that the respondent lead its evidence first, the time for such a request was at the outset of the hearing.

14The applicant also takes issue with my reference to a standard decision on credibility assessment, Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). The case remains the law in Canada and is often referred to in Tribunal Decisions.

15The applicant also complains that I did not hear from two potential witnesses. That issue was addressed at the hearing as recorded in the Decision at para. 21:

After hearing the evidence of the applicant and the respondent’s two witnesses, I directed the parties to make submissions on the basis of the evidence tendered to that point. I directed that the parties address two issues. First, whether it was necessary to hear any further from the respondent with respect to the allegations of differential treatment of the applicant’s children because this aspect of the Application had no reasonable prospect of success. The second issue to be addressed was whether the applicant’s central allegation that the withdrawal of care for her children was discriminatory could be sustained based on the evidence of the applicant and the individuals who made this decision.

16The applicant makes other submissions about my findings of fact and continues to dispute the evidence of the respondents. The applicant clearly disagrees with the conclusions reached in the Decision; however, that is not a proper basis for reconsideration.

17In 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.