HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Prudence Simpson-Bowlyn Applicant

-and-

Commissionaires (Great Lakes) Respondent

RECONSIDERATION DECISION

Adjudicator: Ena Chadha Date: December 3, 2009 Citation: 2009 HRTO 2100 Indexed as: Simpson-Bowlyn v. Commissionaires (Great Lakes)

written submissions

Prudence Simpson-Bowlyn, Applicant ) Mary Mackinnon, Counsel Commissionaires (Great Lakes), Respondent ) Philip Day, Representative

INTRODUCTION

1On September 23, 2009, the respondent filed a Request for Reconsideration of the Tribunal’s Decision, 2009 HRTO 1362, dated August 31, 2009, where the Tribunal found that the respondent had failed to accommodate the applicant on the basis of disability.

2In its Request for Reconsideration, the respondent argued that the Tribunal made errors of fact in reaching its conclusion and errors regarding the calculation of the award for damages. Specifically, the respondent argued that:

(i) the Tribunal did not understand the work environment or applicant’s medical restrictions;

(ii) while the Tribunal properly denied part of the applicant’s wage loss claim, the Tribunal should have denied the claim in its entirety;

(iii) the Tribunal misapprehended the scope of the medical benefits coverage as provided for in the collective agreement; and

(iv) the Tribunal should have taken into account the culpability of a third party.

3On October 6, 2009, the Tribunal issued a Decision, 2009 HRTO 1612, providing the applicant with the opportunity to file submissions with respect to the issue of the proper scope of the applicant’s medical benefits coverage.

RELEVANT LEGISLATIVE PROVISIONS

4Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) provides the Tribunal with authority to reconsider its decisions. Further to its power to make rules, the Tribunal has issued Rules governing Requests for Reconsideration. In order to provide guidance on the Tribunal’s exercise of its reconsideration powers, the Tribunal has also issued Practice Direction #4 (Reconsideration) to provide guidance to the community concerning the reconsideration process.

5Rule 25.5 provides that 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.

6Practice Direction #4 states, in part, the following with respect to the Tribunal’s power to grant reconsideration:

Decisions of the Tribunal are generally considered final and are not subject to appeal...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.

DECISION

7As indicated in the Practice Direction, reconsideration is not an appeal process, nor an opportunity for a party to resubmit positions previously argued or advance arguments that could have been submitted in the hearing. The respondent’s position that certain aspects of the Tribunal’s Decision were erroneous and constituted a misapprehension of the evidence does not satisfy the necessary criteria for a Request for Reconsideration. The specific language of Rule 25.5 has to be satisfied for the Tribunal to grant a reconsideration.

8The respondent’s submissions appear to refer to Rule 25.5(a) and argue that the Tribunal should have reached a different conclusion based on certain provisions of the collective agreement. No explanation was provided, however, as to why the respondent did not tender the collective agreement into evidence in the hearing and refer to the collective agreement in responding to the applicant’s claim for compensation. Furthermore, the respondent does not explain why the specific provisions, which the respondent now relies upon, were not addressed at the hearing, nor in final written submissions. As such, it is my view, that the respondent’s arguments with respect to the collective agreement provisions do not explain why the evidence could not reasonably have been obtained earlier and therefore are not admissible at this stage of the process.

9Moreover, I have reviewed the applicant’s submissions with respect to her oral evidence at the hearing in relation to the respondent’s offer to cover the medical benefits and have determined that, even if the collective agreement provisions had been entered into evidence as part of the hearing, the conclusion reached would not have been different.

ORDER

10Accordingly, since the respondent has failed to satisfy the requirements of Rule 25.5, the Request for Reconsideration is dismissed.