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Human Rights (Ont) - Reconsiderations. Yan v. Mohawk College
In Yan v. Mohawk College (Div Court, 2024) the Divisional Court dismissed a JR against an HRTO decision that found no discrimination by the College respondent.
Here the court considered an HRTO reconsideration:[8] The applicant sought a reconsideration. The applicant relied on the HRTO rule that permits a reconsideration where that there are new facts or evidence submitted on the request for reconsideration that could potentially be determinative of the case and that could not have been submitted earlier.
[9] The Adjudicator was not persuaded that the above grounds for reconsideration were met. The Adjudicator found that the events described by the applicant were not new – they were all known to her when she provided her submissions in response to the notice of intent to dismiss. ....
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[17] With respect to the reconsideration decision, this Court has also stressed that discretionary findings with respect to the HTRO adjudicating requests for reconsideration in applications under the Code “are areas of expertise unique to the Tribunal. ... A high degree of deference should be accorded to such decisions”: Mohmand v. Ontario (Human Rights Tribunal), 2021 ONSC 528 (Div. Ct.), at para. 19. . Danso v. The Human Rights Tribunal of Ontario et al.
In Danso v. The Human Rights Tribunal of Ontario et al. (Div Court, 2024) the Divisional Court considers the common (although equally commonly unsatisfied) complaint that an administrative reconsideration should be heard by a different member than the original hearing, here in an HRTO context:[79] ... Additionally, the Applicant submits that his Reconsideration Application was decided by another Adjudicator (M. Borer) because the Tribunal knew Adjudicator Tamburro was biased.
[80] There is no requirement in Rule 26 of the Code that mandates or directs that any Reconsideration Application must be heard by the same Adjudicator.
[81] The Rule only speaks to the “The Tribunal” considering a Reconsideration Application. . Danso v. The Human Rights Tribunal of Ontario et al.
In Danso v. The Human Rights Tribunal of Ontario et al. (Div Court, 2024) the Divisional Court states authority for an HRTO reconsideration 'test':[33] That request for Reconsideration was filed by the Applicant and was accompanied by a request to amend the initial Reconsideration request. The Adjudicator referenced the principles applicable to Reconsideration requests noting that a Reconsideration is not an appeal or a hearing de novo: Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 (Div. Ct.), at para. 17.
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[51] With respect to the Reconsideration Application, Adjudicator Borer correctly sets out the appropriate test for reconsideration as prescribed in Londau [SS: should be 'Landau']. Reference is also made to the decision of the Divisional Court in James v. York University and Ontario Human Rights Tribunal, 2015 ONSC 2234 (Div. Dt.), 339 O.A.C. 68, at para. 58, where the court states it is reasonable to decline to reconsider the original decision where there are “no compelling and extraordinary circumstances for doing so and there were no circumstances which outweighed the public interest in the finality of order and decisions of the Tribunal.” . Mehedi v. Mondalez Bakery
In Mehedi v. Mondalez Bakery (Div Court, 2023) the Divisional Court noted that an HRTO reconsideration decision was discretionary in nature, and thus subject to deferential judicial review:[19] Similarly, the Reconsideration Decision was reasonable in finding that the Applicant had failed to establish any of the available grounds for reconsideration under Rule 26.5 of the HRTO’s Rules. Moreover, reconsideration is a discretionary remedy. The HRTO’s exercise of discretion is thus entitled to a high degree of deference: Paul James v. York University and Ontario Human Rights Tribunal, 2015 ONSC 2234, at para. 57. We see no reason to interfere with the Reconsideration Decision. . Graham v. New Horizon System Solutions
In Graham v. New Horizon System Solutions (Div Court, 2023) the Divisional Court concludes that an HRTO reconsideration [under HRC s.45.7] is discretionary at the hands of the tribunal, even when requested by the applicant:[33] ... Under s. 45.7 of the Code and r. 26 of the Tribunal’s Rules of Procedure, there is no right to have a decision reconsidered. A reconsideration is not an appeal, and the Tribunal will only reconsider a decision in specified circumstances. ...
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