Handorf v. Babcock and Wilcox Canada, 2009 HRTO 1792

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Handorf

Applicant

-and-

Babcock and Wilcox Canada Ltd. and

United Steelworkers Local 2859

Respondents

reconsideration DECISION

Adjudicator: Faisal Bhabha

Date: October 27, 2009

Citation: 2009 HRTO 1792

Indexed as: Handorf v. Babcock and Wilcox Canada

APPEARANCES

Richard Handorf, Applicant ) On his own behalf

Babcock and Wilcox Canada, )

Respondent ) Veronica A. Kenny, Counsel

United Steelworkers Local 2859 ) Mark Rowlinson, Counsel

1The applicant filed an Application on November 6, 2008 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment on the basis of disability. The respondents requested that the Application be dismissed on the basis that it was filed beyond the one-year time limit prescribed in s. 34 of the Code, and under s. 45.1 of the Code, on the basis that another proceeding has appropriately dealt with the substance of the Application.

2In a Decision dated August 27, 2009 Handorf v. Babcock and Wilcox Canada, 2009 HRTO 1343, the Tribunal found that the applicant was out of time for filing his Application and that the delay was not incurred in good faith within the meaning of s. 34(2).

3On September 22, 2009, the applicant filed a Form 20 requesting reconsideration.

REQUEST FOR RECONSIDERATION

4Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request 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.

5It 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.

6In the Decision, the Tribunal found that the applicant had failed to demonstrate “good faith” within the meaning of section 34(2) of the Code in bringing his Application in a timely manner. The Application was therefore dismissed.

7The applicant has raised a number of objections to the Decision. In his Form 20, he checked the boxes representing factors (a) new facts or evidence; (c) established case law; and (d) other factors that outweigh the public interest in finality. I will consider his arguments in the context of Rule 26.5.

8The applicant submits that he was misunderstood in the preliminary hearing. He argues that his principal argument was that the respondents had deliberately caused him to be disabled so as to frustrate his ability to file the Application. He claims to have requested additional hearing dates to enable him to call witnesses to support his allegation, and that the ten summonses he requested from the Tribunal arrived late.

ANALYSIS AND DECISION

9The applicant was fully apprised of the Tribunal’s procedures with respect to calling witnesses. That he failed to request and serve summonses in good time is not a persuasive reason for reconsideration. Regarding the applicant’s argument about additional hearing dates, the hearing held on June 26, 2009 was a preliminary hearing scheduled for a single day to determine the question of timeliness. There was no basis for the applicant to request additional hearing days to call evidence going to the merits of his case. The sole purpose of the preliminary hearing was to hear evidence, if any, and submissions relating to the respondents’ request for a preliminary dismissal. It was not an opportunity for the applicant to prove his case of discrimination.

10The applicant maintains that the respondents not only failed to accommodate his disability but that they caused his disability. He raises this argument in relation to the preliminary issue by arguing that he was unable to file his Application on time due to the deliberate actions of the respondents. While he made this argument in the hearing, he failed to call any supporting evidence despite having been provided ample time and opportunity to do so.

11In any event, the cause of the applicant’s disability is irrelevant to the preliminary question about whether the delay was incurred in good faith. I concluded on the evidence that the applicant was not prevented by virtue of his disability from filing an Application within the stipulated timeframe. Reconsideration is not an opportunity to re-argue that point.

12Even if the applicant had succeeded in establishing on the evidence that the delay in filing his Application was due to disability-related incapacity, it would not have mattered in the least who or what caused the disability. The fact remains that I found he was not incapacitated by his disability, regardless of the cause. Therefore, the applicant has not raised any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, as called for under Rule 26.5(a).

13Furthermore, I have determined that the factors at Rule 26.5 (c) and (d) are also not present. In failing to adduce any inconsistent jurisprudence, the applicant has failed to establish that the Decision is in conflict with established case law or that his proposed reconsideration involves a matter of public importance. Finally, the applicant has not cited any additional factors that outweigh the public interest in the finality of Tribunal decisions.

14The request for reconsideration is denied.