Sharma v. University of Toronto, 2017 HRTO 1282

Human Rights Tribunal of Ontario

B E T W E E N:

Reena Sharma Applicant

-and-

University of Toronto Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart Date: September 28, 2017 Citation: 2017 HRTO 1282 Indexed as: Sharma v. University of Toronto

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2017 HRTO 531 dated May 10, 2017, which dismissed the Application for delay.

2On June 12, 2017, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. The applicant failed to file her Request for Reconsideration within the 30 day period required by Rule 26.1 of this Tribunal’s Rules of Procedure, as her e-mail to the Tribunal filing her Request for Reconsideration was received after 5 p.m. on June 9, 2017: see Rule 1.19. As a result, her Request for Reconsideration was deemed to have been received by this Tribunal on the next business day, which was June 12, 2017. This alone would be a basis to dismiss the Request for Reconsideration. Nonetheless, I will proceed to consider the applicant’s Request for Reconsideration despite it being untimely.

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 applicant in support of his Request for Reconsideration satisfies the criteria set out in Rule 26.5 relied upon in the Request. The applicant relies upon the criteria identified in Rule 26.5(a), (c) and (d).

10The first ground upon which the applicant seeks reconsideration is that “there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier”. In support of this ground, the applicant submits that I failed to review and consider material that she previously had filed with this Tribunal in response to her receipt of a “notice of intent to dismiss” (“NOID”) letter from the Tribunal. The problem with this submission is that, by definition, material which had previously been filed with the Tribunal is incapable of constituting “new facts and evidence . . . that could not reasonably have been obtained earlier”.

11In any event, the materials referenced by the applicant do not assist her with her reconsideration request. The key issue determined in my original Decision in this matter is that the applicant did not file her Application within one year of the last alleged incident of discrimination. The Application was filed on October 20, 2015. To fall within the one year period, the last alleged incident of discrimination needed to have occurred on or after October 20, 2014. The only allegation raised in the Application that is alleged to have occurred during that period of time is a further e-mail from the applicant to the respondent University’s Ombudsperson’s Office, and the Ombudsperson’s response repeating what the applicant already had been told in early September 2014. As I found in the Decision, this does not amount to a new incident of alleged discrimination as required to bring the Application within the one year time period. Nothing in the material filed by the applicant in response to the NOID letter changes this reality.

12The Request for Reconsideration raises an alleged issue of “conflict of interest” that the applicant alleges was not addressed. The alleged conflict of interest relates to respondent counsel and his role in representing the respondent University in various capacities. This is not a proper basis to support the applicant’s Request for Reconsideration, as it does not relate to any of the grounds for reconsideration set out in Rule 26.5.

13In relation to the delay issue, the applicant submits that I incorrectly stated in the Decision that her request to amend her Application related to an issue that had been outstanding for more than three years before she filed the Application and more than four years before she sought the amendment, and was therefore grossly out of time. In support of this submission, the applicant states that she had raised the issue of having her grades added to her transcript in correspondence to the Ombudsperson in September and October 2014. This fails to address the fact that the alleged incident of discrimination, which is an allegation of reprisal for failing to reflect these grades on her transcript, had occurred and been known to the applicant since 2012. This submission also fails to address the fact that the Ombudsperson’s decision that her office has no jurisdiction to intervene in the matter already had been communicated to the applicant in early September 2014, more than one year before the Application was filed.

14The applicant alleges that she requested to amend her Application through this Tribunal on October 12, 2016, but she did not receive a response. This Tribunal has no record of any such request having been received from the applicant on October 12, 2016 or at any time prior to the day of the preliminary hearing.

15The applicant takes issue with my statement in the Decision that much of the material filed by her on December 8, 2016 is of little relevance to the issues to be determined at the preliminary hearing. The point I was making in the Decision is that these materials largely were not relevant to the delay issue that was the primary focus of the preliminary hearing and my Decision.

16With regard to the anonymization issue, the applicant makes reference to materials that had been filed by her and allegedly disclosed by the respondent University in the course of its internal processes. That is not a proper basis upon which to support anonymization in the context of this Tribunal’s process. As stated in this Tribunal’s “Practice Direction On Anonymization of HRTO Decisions”, this Tribunal “may also anonymize the name of a party or a participant to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so (Rule 3.11). Such an order is only made in exceptional circumstances”. While all requests for anonymization are considered on a case-by-case basis, this Tribunal’s general approach “is to balance the public interest in freedom of expression and open justice against any significant consequences of identifying the person requesting anonymization”. The issue to be considered is whether identifying the applicant in the context of the issuance of a Tribunal decision has any significant consequences, not whether disclosure of other information not contained in the Tribunal decision has any significant consequences.

17As a result, I am not satisfied that the applicant’s Request for Reconsideration discloses new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, or establishes that my Decision is in conflict with established jurisprudence or Tribunal procedure, or articulates other factors that outweigh the public interest in the finality of Tribunal decisions.

18For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.