Grant v. Bombardier, 2009 HRTO 1324

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Malcolm Grant

Applicant

-and-

Bombardier Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: August 26, 2009

Citation: 2009 HRTO 1324

Indexed as: Grant v. Bombardier

INTRODUCTION

1On July 2, 2009, the Tribunal issued a Decision, 2009 HRTO 965, in which it dismissed the Application because its substance falls beyond the Tribunal’s jurisdiction. On August 2, 2009, the applicant filed a Request for Reconsideration of that Decision and submissions in support of his Request.

2A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondent.

BACKGROUND

3The Application was filed on December 5, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), arising out of his former employment with the respondent. The applicant checked off “reprisal or threat of reprisal” as the alleged ground for his Application. Specifically, the applicant alleged that he made several complaints about workplace harassment during the course of his employment which resulted in his allegedly being “blacklisted” and not rehired after a lay off.

4Submissions were sought and received from the parties on the question of whether the alleged reprisal was in response to the applicant’s attempt to claim or enforce a right under the Code, instituting or participating in proceedings under the Code, or refusing to infringe the right of another person.

5The Decision dismissing the Application held that the applicant had not raised issues that were in the Tribunal’s power to decide as the protection against reprisal in section 8 of the Code could not extend to a situation in which an applicant failed or refused to identify which ground of discrimination applied to him.

6The applicant has advanced a number of arguments in support of his request for reconsideration, many of which are a restatement of the arguments made on his behalf by his agent earlier in the process. He argues that the respondent has misled the Tribunal and that his previous attempts to raise the issues in this Application were impeded by the Ontario Human Rights Commission. He states that the Application is within the jurisdiction of the Tribunal because he filed a complaint about workplace harassment under the respondent company’s Code of Ethics. He argues that because the Code of Ethics contains a reference to the Code, the alleged reprisal by the respondent is within the jurisdiction of the Tribunal, despite his concession that the relevance of the Code to his complaint to the respondent was “debatable”.

7This is the Tribunal’s decision on the Request for Reconsideration.

REQUEST FOR RECONSIDERATION

8Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.

9It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which 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.

10In his Form 20, the applicant has checked the box indicating that the reason for his Request is “other factors exist that outweigh the public interest in the finality of Tribunal decisions”.

11A Request for Reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. In his Request, the applicant has made no submissions that bear on the identified ground for reconsideration or, indeed, on any of the criteria outlined in either Rule 26 or the Practice Direction on Reconsideration. The thrust of his submissions merely reiterate arguments made earlier in the process. It is evident that the applicant disagrees with the Tribunal’s finding. However, he has presented no basis to reconsider the Decision.

12The Request for Reconsideration is denied.