Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 1610

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Norman Traversy

Applicant

-and-

Mississauga Professional Firefighters’ Association, Local 1212,

Greg Laing, Dave McNeil, Mark Train, Chris Varcoe and Mike Scarangella

Respondents

RECONSIDERATION DECISION

Adjudicator: Sherry Liang

Date: October 7, 2009

Citation: 2009 HRTO 1610

Indexed as: Traversy v. Mississauga Professional Firefighters’ Association

1In this Application, the applicant has filed a Request for Reconsideration of the Tribunal’s Decision, 2009 HRTO 996, dated July 8, 2009.

2Section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19 (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.

3Further 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. The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision of the Tribunal within thirty days from the date of the decision.

4This Request was filed on September 21, 2009, beyond the thirty-day deadline. At the time of the Tribunal’s Decision, the applicant was represented by a paralegal. The Decision was sent to the applicant’s representative by courier on July 9, 2009. The applicant states that he was not sent a copy of the Decision by his representative, nor made aware of it. The applicant states that he only became aware of the Tribunal’s Decision on August 27, 2009, after initiating his own inquiries. It is unnecessary for the Tribunal to decide whether or not there are grounds to waive the strict application of the 30-day deadline for filing a Request for Reconsideration. Even assuming it should be accepted, the Request for Reconsideration is denied.

5Rule 26 reads, in part, as follows:

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.

6The 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.

7As 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.

8In the Request form, the applicant has indicated as his reasons for requesting reconsideration that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, the Decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance, and other factors exist that outweigh the public interest in the finality of Tribunal decisions.

9The applicant states that new information has just been provided to him by the responding parties, information of which he was not aware prior to filing his Application or the hearing dates. I have reviewed the applicant’s materials and do not find that they contain “new facts or evidence that could potentially be determinative of the case”. The applicant clearly believes that the Association is continuing to treat him unequally, but the facts or evidence he relies on (even assuming they could not reasonably have been obtained by him earlier) would not have changed the decision that he has not raised a prima facie case of discrimination under the Code, with respect to the events covered by this Application. They would not have changed my assessment of the evidence presented, and the decision to dismiss the Application.

10Furthermore, the facts the applicant refers to relate to discussions or disagreements between himself and the respondent union following the events covered by the Application. If he believes that they raise additional incidents of discrimination under the Code, the remedy does not lie in a reconsideration of a decision made about prior events, but in the filing of a new Application.

11The applicant also refers to a letter from counsel to the respondents, addressed to the Vice-chair instead of to the Registrar as required by the Rules. This is not a matter that raises any of the issues relevant to granting a Request for Reconsideration.

12The applicant takes objection to certain comments or conduct, on the part of the respondents that he alleges occurred during the hearing. No objection was taken to the comments or conduct, if indeed they occurred, at the hearing. A Request for Reconsideration is not a means to raise objections about a hearing process after a party receives a decision with which they disagree. To the extent the applicant raises facts or evidence he believes may have had an impact on the outcome of the hearing, it cannot be said that they were not reasonably known to him at the time of the hearing.

13The applicant objects to the failure of the respondents to call any witnesses at the hearing, and suggests that he should have been afforded the opportunity to call further witnesses to provide information that he intended to elicit from the respondents’ witnesses at the hearing. This also does not provide a basis for granting the Request for Reconsideration. The applicant’s representative had the opportunity to address this at the hearing. He made submissions about the conclusions I should draw in the absence of any evidence from the respondents. The applicant’s submission in this regard does not establish any of the criteria under Rule 26 for granting a Request for Reconsideration.

14The applicant expresses disagreement with a specific finding in the Decision, relating to a comment he alleges was made by one of the individual respondents. An applicant is entitled to disagree with findings made in a Tribunal decision, but this is not a basis for granting a Request for Reconsideration.

15In sum, I am not satisfied that the applicant has shown the existence of any of the criteria described in Rule 26 for granting a Request for Reconsideration. The Request is dismissed.