HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Albert Baylet

Applicant

-and-

Universal Workers Union, Labourers’ International Union of North America, Local 183 and Maria Da Silva

Respondents

AND B E T W E E N:

Albert Baylet

Applicant

-and-

Dan Benedict Co-op Homes, Ellen Bowie and Leslie Staddon

Respondents

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: July 23, 2009

Citation: 2009 HRTO 1120

Indexed as: Baylet v. Universal Workers Union

WRITTEN SUBMISSIONS BY

Albert Baylet, Applicant ) Self-represented

INTRODUCTION

1On May 27, 2009, the Tribunal issued an Interim Decision, 2009 HRTO 700, wherein it granted the motion of the respondent Union to dismiss the Application against it and its representatives. The Tribunal found that the sole allegation against the Union was that it failed to complain about the alleged discriminatory conduct by the applicant’s employer, Dan Benedict Co-op Homes (the “Employer”). The Tribunal held that this was not a sufficient basis upon which to file an Application under the Code. In the same Interim Decision, the Tribunal denied the motion of the Employer and its employees to have the Application against them dismissed.

2On June 29, 2009, the applicant filed a Request for Reconsideration of the Tribunal’s Interim Decision dismissing the Application against the Union, as provided for in section 45.7 of the Ontario Human Rights Code (the “Code”). In his Request for Reconsideration, the applicant submits that the mere fact that the Union represented him before he became disabled and ceased representing him after he became disabled is evidence of discrimination. The applicant disagrees with the Tribunal’s finding that there was no factual basis for his complaint other than the fact that the Union failed to complain about the Employer’s alleged discriminatory conduct.

DECISION

3The Request for Reconsideration is dismissed.

RELEVANT LEGISLATIVE PROVISIONS

4Sections 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal’s decisions:

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.

Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

45.8 Subject to section 45.6 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

5Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers (Practice Direction #4 Reconsideration).

6Relevant to this Decision are the following Rules:

25.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.

25.3. A request for reconsideration must include:

(a) reasons for the request, including the basis on which the Tribunal is asked to grant the request for reconsideration;

(b)submissions in support of the request; and

(c) the remedy or relief sought.

25.5. 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;

(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;

(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 and orders.

7Practice Direction #4 states, in part:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

ANALYSIS

8In his Request for Reconsideration, the applicant states that the fact that the Union represented him before he became disabled (on non-human rights matters) and refused to represent him when he became disabled (on his disability-based claim) is the factual foundation for his complaint against the Union. The applicant uses the reconsideration process as an opportunity to express his disagreement with the Tribunal’s finding that there was no factual basis for his complaint beyond the fact that the Union did not complain about the Employer’s alleged disability-based discrimination.

9In 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.

10When decisions are made by the Tribunal, it is important that they be seen as final. Reconsideration does not provide parties with a “second kick at the can”. It is a discretionary remedy exercised by the Tribunal in the limited circumstances set out in Rule 25.5. It is only where these circumstances exist that the Tribunal will reconsider its decision.

11The applicant has failed to meet the criteria set out in Rule 25.5. The applicant is attempting to re-argue his case by stating that because the Union represented him when he was not disabled and refused to represent him when he became disabled, there is evidence of discrimination. No additional evidence has been provided by the applicant to support his assertion that such discrimination should be inferred from this fact alone. In the absence of any new evidence, the Tribunal is left with the sole fact that the Union failed to act. The Tribunal has ruled on this claim.

12At its core, the Request for Reconsideration is an attempt by the applicant to re-argue his case and appeal the Tribunal’s decision. As stated in the Tribunal’s Practice Direction: “Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case”. It is on this basis that applicant’s Request for Reconsideration is dismissed.