Corke v. Bolt, 2017 HRTO 1156

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Graham Corke

Applicant

-and-

Ives Bolt

Respondent

RECONSIDERATION DECISION

Adjudicator: Eban Bayefsky

Date: September 7, 2017

Citation: 2017 HRTO 1156

Indexed as: Corke v. Bolt

WRITTEN SUBMISSIONS

Graham Corke, Applicant

Self-represented

Introduction

1The applicant filed an Application alleging that the respondent reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, he alleged that the respondent reprised against him for testifying and providing contrary evidence to that of the respondent in a prior Human Rights Tribunal hearing.

2By Case Assessment Direction, the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that it had no reasonable prospect of success.

3On May 12, 2017, I conducted a summary hearing in the matter by teleconference. On July 5, 2017, I issued a Decision, 2017 HRTO 799, dismissing the Application. The applicant has asked the Tribunal to reconsider this Decision.

BACKGROUND

4The applicant (a high school math teacher) alleged that the respondent (a coordinator in the applicant’s math department) sent him emails regarding student concerns about his teaching and failed to produce and/or print out a math exam agreed to between them, as reprisal for the applicant’s involvement in a Human Rights Tribunal hearing a number of months earlier.

5In dismissing the Application, I concluded as follows:

The applicant has, therefore, not pointed to any evidence, beyond his own suspicions or beliefs, that the respondent sent him emails or failed to produce the exam with the intention of retaliating against the applicant for participating in and/or providing contrary evidence at an earlier Tribunal hearing. I find that the applicant’s reprisal claim stands no reasonable prospect of success under the Code.

6The applicant sought a reconsideration of this decision on the basis that it conflicts with established case law and Tribunal procedure, and that the request for reconsideration involves a matter of general or public importance.

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.

8The Tribunal has issued Rules and a Practice Direction regarding the exercise of its reconsideration powers. Most relevant to this Decision is Rule 26.5(c), which states:

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(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

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

11The applicant made three basic arguments in support of his request for reconsideration, summarized as follows:

(i) The decision conflicts with the established legal principle that “he or she who hears must decide” by having Vice-chair Bhattacharjee conduct the summary hearing and Vice-chair Bayefsky issue the decision.

(ii) The decision conflicts with established jurisprudence prohibiting the summary dismissal of an Application where there is some evidence of a link between impugned conduct and the Code, by failing to acknowledge that the respondent’s emails were sent a day after the previous Tribunal hearing had actually concluded, and by accepting the respondent’s position that he had had the professional authority to supervise and/or assess the applicant’s performance.

(iii) The decision contains an error of fact in stating that the applicant had made a “purely speculative” allegation that the respondent was in possession of relevant information that could only be obtained through full disclosure, since the applicant had requested the actual student emails the respondent claimed raised concerns about the applicant’s teaching.

12While the applicant may have confused my name with that of Vice-chair Bhattacharjee, I conducted the summary hearing and issued the Decision.

13In 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 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.

14The issues raised by the applicant regarding the sequence of events, the respondent’s supervisory authority and the availability of additional supporting evidence were the subject of submissions before me at the summary hearing, and dealt with in my Decision. The submissions in this Request amount to additional argument on issues already fully canvassed before me.

15As a result, I am not prepared to find that the Decision is in conflict with established jurisprudence or Tribunal procedure, or that the proposed reconsideration involves a matter of general or public importance.

ORDER

16The applicant’s request for reconsideration is denied.