Tom LaFortune v. Washington Mills Electro Minerals Corporation, 2009 HRTO 1706

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tom LaFortune Applicant

-and-

Washington Mills Electro Minerals Corporation Respondent

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: October 19, 2009

Citation: 2009 HRTO 1706

Indexed as: LaFortune v. Washington Mills Electro Minerals

AppearanceS BY

Tom LaFortune, Applicant ) On his own behalf

Washington Mills Electro Minerals Corporation, )

Respondent ) Jennifer M. Fantini,

) Counsel

INTRODUCTION

1On August 28, 2009, the Tribunal issued its decision on remedy in this matter (2009 HRTO 1352). The Tribunal held that the applicant was not entitled to damages for lost wages because he had completely mitigated his wage loss. The applicant was laid off from his employment with Washington Mills Electro Minerals Corporation (“Washington Mills”) on November 4, 2004 and obtained new employment on November 14, 2004. The applicant remains in that position today although he has been on indefinite lay-off since January 2009. The Tribunal awarded the applicant $5,000.00 in damages for the frustration and insult he experienced when he was denied the opportunity to return to work for Washington Mills in March 2005 because of his disability.

2On September 23, 2009, the applicant filed a Request for Reconsideration of the Tribunal’s Decision on remedy, 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 Tribunal failed to appreciate the full impact of his carpal tunnel syndrome, the disability he acquired while working for Washington Mills, including the impact it will have on his ability to obtain new employment after his lay-off from his current employer in January 2009.

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

8The applicant uses the reconsideration process as an opportunity to express his disagreement with the Tribunal’s finding that Washington Mills is not responsible for the applicant’s carpal tunnel syndrome per se, but is only responsible for the losses that result from its decision in March 2005 not to rehire the applicant because of his disability. The applicant also disagrees with the Tribunal’s finding that Washington Mills is not responsible for the losses experienced by the applicant years after it made the decision not to rehire him because of his disability. The applicant believes that Washington Mills should be held accountable for the rest of the applicant’s work life. He disagrees with the Tribunal’s finding that Washington Mills’ liability is for a reasonably foreseeable period of time.

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 repeating the arguments made during the hearing on remedy about the impact of his carpal tunnel syndrome on his personal life and on his opportunity to seek new employment after his lay-off from his current employer. 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 #4, “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.