Leduc v. Legal Aid Ontario, 2017 HRTO 1247

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alex Leduc

Applicant

-and-

Legal Aid Ontario and Nawwal Emritte

Respondents

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle

Date: September 21, 2017

Citation: 2017 HRTO 1247

Indexed as: Leduc v. Legal Aid Ontario

WRITTEN SUBMISSIONS

Alex Leduc, Applicant

Self-represented

Legal Aid Ontario and Nawwal Emritte, Respondents

No submissions

Introduction

1On May 30, 2017, the Tribunal issued its Decision in this Application, Leduc v. Legal Aid Ontario 2017 HRTO 597, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2The Tribunal’s Decision found as follows:

• The applicant did not establish differential treatment on the basis of his last name, which he uses as a proxy for his ethnic origin, as telephone interviews were given to individuals with last names which may traditionally be considered to be “French” and last names which may not be traditionally considered “French”

• The applicant did not establish that he suffered any disadvantage due to the fact that he was interviewed over the phone and not in person

• There was no reasonable prospect that he applicant would be able to prove discrimination within the meaning of the Code.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides 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

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

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 (a), (c) and (d). He submits that the job he sought was to work on the phone and everyone should have had an interview over the telephone. He asserts that he was discriminated against due to his French ethnicity, contrary to the Code. He asserts that the name Brazeau is not of French ethnicity, that that person does not speak French and was hired in person. He asserts that Belaire is not of French ethnicity as all of that person’s names are Anglophone and that person had an interview in person. He asserts that Gabrielle is a first name, not a family name and alleges that the respondent has hidden the person’s family name. He alleges that that person does not speak French either.

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.

11The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

12I am not convinced that any findings made in the Decision are in conflict with established jurisprudence, or that there was any deviation from Tribunal procedure or that the proposed reconsideration involves a matter of general public importance or that there are factors outweighing the public interest in the finality of Tribunal decisions.

13It 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. In 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

14In 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.