Visconti v. The Great-West Life Assurance Company, 2009 HRTO 153

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jacqueline Visconti

Applicant

-and-

The Great-West Life Assurance Company, London Life Insurance Company, and Freedom 55 Financial

Respondents

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: February 11, 2009

Citation: 2009 HRTO 153

Indexed as: Visconti v. Great-West Life Assurance

INTRODUCTION

1On November 14^th, 2008, the Tribunal issued a Decision that this Application was barred under s. 53(8) of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) (Visconti v. Great-West Life Assurance Company, 2008 HRTO 270). The applicant has filed a Request for Reconsideration of that Decision.

BACKGROUND

2Jacqueline Visconti filed an Application on July 4, 2008 under section 34 of the Code alleging reprisal arising out of events that were the subject matter of an ongoing complaint before the Ontario Human Rights Commission (the “Commission”). In an Interim Decision, Visconti v. The Great-West Life Assurance Company, 2008 HRTO 99, dated September 23, 2008, the Tribunal found the Application could not be brought under s. 34 as it was barred under s. 53(8).

3The applicant argues that reconsideration is warranted in this case on the ground that it is in conflict with established caselaw or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

4This is the Tribunal’s Decision on the Request for Reconsideration.

REQUEST FOR RECONSIDERATION

5Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its 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.

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

6Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration 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).

7Most relevant to this decision is Rule 26 which reads, in part, as follows:

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 and orders.

8The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

9As 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.

10The applicant has based her request on Rule 26.5 (c). In the documents filed with the reconsideration request, she states that while she does not dispute that her Application may be “temporarily” barred under s. 53(8), she is concerned that her Application may be permanently barred because the only options available to her under the Tribunal’s decision are to seek to bring the matter before it under s 53(3) or s. 53(5). She asks that the Decision be amended to allow her to bring an application concerning the reprisal and poisoned work environment under s. 34 after January 1, 2009.

11The applicant restates her position that her matter is unsuited for the expedited process offered by s. 53(3). She also restates her concern that if she is unable to bring the allegations contained in the current Application before the Tribunal as part of the continuum of events that comprise her original complaint pursuant to s. 53(5), despite the agreement between the parties that the allegations and issues are inextricably linked, she would be significantly disadvantaged.

12Although the applicant has reiterated her concerns, she does not explain how the decision departs from established law or procedure. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

13On my review of the materials and the decision, I am not satisfied that any part of the Decision is in conflict with established jurisprudence or Tribunal procedure. The materials filed by the applicant do not point me to any specific aspect of the Decision that is conflict with established jurisprudence or procedure. Nor do the materials offer any reason to consider this matter to be one of general or public importance.

14In view of the above, I find no basis to grant reconsideration of the Tribunal’s Decision of November 14, 2008.