Saxon v. Amherstburg Police Services Board, 2009 HRTO 2104

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Saxon

Applicant

-and-

Amherstburg Police Services Board, Raymond Marentette and Bartolomeo Dipasquale

Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: December 4, 2009

Citation: 2009 HRTO 2104

Indexed as: Saxon v. Amherstburg Police Services Board

1On November 9, 2009, the applicant filed a Request for Reconsideration of Decision 2009 HRTO 1628 under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).

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.

2The Tribunal’s Rules Governing Transitional Applications provide that any party may request reconsideration of a decision in accordance with Rule 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; 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.

3The applicant states that there is new evidence, potentially determinative of the case that could not reasonably have been obtained earlier. The applicant also takes issues with findings of fact with which he disagrees.

4I have reviewed the new facts or evidence that the applicant submits he ought to be able to rely upon now. The documents in question appear to be notes of phone calls made to the third party insurer by, it appears, individuals employed by the corporate respondent. In large part the notes confirm the narrative as disclosed in the hearing about events leading to the applicant’s return to work in mid-January 2005. The one note in particular that is relied upon does suggest that the employer had identified an accommodation in the form of a couple of hours per day of secretarial work. They are documents created by the third party insurer and not in the possession of the employer.

5The applicant states that the new evidence establishes that by January 4, 2005 the respondent employer had expressly contemplated offering the applicant an accommodation in the form of a couple of hours of secretarial work. Even assuming that the new evidence establishes this fact, I am not satisfied that it would be determinative of the case given the fact that the applicant returned to work on full duties very shortly after this potential accommodation might have been discussed with him. I also note in this regard that the applicant’s position in respect of doing any work, including training, at the time was that it should wait until he was assessed by his physicians on January 18, 2005. As it happens the applicant was cleared to return to his full duties at the January 18 assessment and did so within a day or two.

6I am also not satisfied that this evidence could not reasonably have been obtained prior to the hearing. The documents in question were created in January 2005 and were presumably available to the applicant prior to the hearing. No explanation was provided for the failure of the applicant to request his file prior to the hearing so that the questions arising from the note in question could have been canvassed at the hearing. To suggest as the applicant does that the note described above must mean that the respondents have failed to produce arguably relevant documents is mere speculation at this stage.

7The applicant also states that because the hearing was not recorded, he is prevented from challenging my findings of fact. That is not a basis for a request for reconsideration.

8For all of these reasons the Request is dismissed.