Desauliniers v. Canadian Auto Workers, 2009 HRTO 2237

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Liana Desaulniers

Applicant

-and-

Canadian Auto Workers

Respondent

RECONSIDERATION DECISION

Adjudicator: Eric Whist

Date: December 21, 2009

Citation: 2009 HRTO 2237

Indexed as: Desauliniers v. Canadian Auto Workers

1In a Decision dated September 30, 2009, 2009 HRTO 1583, the Tribunal dismissed the applicant’s Application because it was filed more than one year after the alleged last incident of discrimination.

2The Tribunal subsequently determined that the applicant had provided timely submissions and related documents to the Tribunal on why her Application was delayed. However, this information was not considered by the Tribunal in arriving at its Decision. Consequently, the Tribunal decided, on its own motion, to reconsider the Decision.

3In a Reconsideration Decision dated October 22, 2009, 2009 HRTO 1743, the Tribunal found the applicant’s submissions and related documents did not alter its earlier determination that the applicant had failed to show that the delay in filing her Application was incurred in good faith.

4The applicant has now filed with the Tribunal a formal Request for Reconsideration asking the Tribunal to reconsider the Reconsideration Decision.

REQUEST FOR RECONSIDERATION

5Rule 26.1 of the Tribunal’s Rules of Procedure, (the “Rules”) states that any party can request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision. In this case the applicant is asking for a reconsideration not of a final decision but rather a reconsideration decision. Do the Tribunal’s Rules allow for such a request?

6Ordinarily a party will have only one opportunity to request reconsideration of a decision. The Tribunal reconsidered the September 30 Decision on its own motion. Thus, although the October 22 Decision is characterized as a reconsideration decision it was, in effect, the final decision of the applicant’s claim based on all her submissions. Thus, in the circumstances of this case, it is appropriate for the Tribunal to consider the applicant’s Request for Reconsideration of that Decision.

THE BASIS FOR THE REQUEST

7In the October 22 Decision I concluded the last incident of alleged discrimination identified occurred in November 2005, when the Canadian Auto Workers (CAW) allegedly failed to file a grievance on the applicant’s behalf. The applicant filed her Application with the Tribunal on May 25, 2009. I found there was no evidence to show that the applicant’s delay in filing her Application was incurred in good faith and that the applicant did not provide any persuasive explanation for the almost four-year delay in seeking to enforce her rights under the Code regarding the events culminating in November 2005.

8In her Request for Reconsideration, the applicant asserts she constantly lobbied the CAW for help after November 2005 when they refused to file her grievance. She states that she repeatedly attempted to contact her CAW representative before finishing a retraining course in April 2007 because the CAW representative had told her that he would help find her a job with her former employer, St Joseph’s Care Group. The applicant states that despite frequent telephone calls to the CAW representative she received no response.

9The applicant states that she subsequently filed a complaint with the Ontario Human Rights Commission (the “Commission”) against the St. Joseph’s Care Group. She states that she thought this complaint would include the CAW but was told by the Commission that they usually choose to address the employer first. The applicant states that no-one had advised her that she could file a Human Rights Complaint against her union and that not knowing this “vital information” led her to pursue an application to the OLRB on the basis that the CAW failed in its duty to provide fair representation. (DFR application).

10The applicant further argues that the CAW’s failure to provide her with support may be attributable to the fact that the CAW had not forgiven her for her public support for the Service Employees International Union (SEIU) in 2000 when there was a dispute as to whether certain SEIU locals should merge with the CAW.

11The applicant provided a number of new documents with her Request for Reconsideration. They include documents she provided to the OLRB as part of her DFR application, the CAW’s response to this application and the OLRB’s decision of December 19, 2007 in regard to this application. The applicant also provided a letter of support, letters she had written to the CAW and St Joseph’s Care Group, a letter she received from St Joseph’s Group, applications for jobs with St Joseph’s Care Support for which she had applied, and newspaper articles related to the dispute between the SEIU and CAW in Thunder Bay in 2000.

ANALYSIS

12Rule 26 of the Tribunal’s Rules states, in part, that:

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.

13The applicant indicates on her Request for Reconsideration that her request is based on Sections 26.5 (a), (b), (c) and (d). However, the applicant has provided no arguments as to why 26.5(b) or 26.5(c) would apply in this case and there is no information before me to suggest why her request for reconsideration should be considered let alone granted on the basis of either of these two sections of Rule 26.5. Accordingly, I have considered the applicant’s request only in terms of whether the applicant has provided new information or evidence that could be determinative or whether there are other factors that outweigh the public interest in the finality of Tribunal decisions.

14As noted, the applicant provided a number of new documents referring to her dealings with the CAW, St. Josephs Care Group and the OLRB. All of these documents are ones that the applicant could have provided earlier and there is an immediate issue of whether these materials can be said to constitute new facts and evidence that would be determinative and that could not have reasonably been obtained earlier as is required by section 26.5(a). However, even if I accept these documents for the purposes of considering the applicant’s Request for Reconsideration under both sections 26.5 (a) and (d) they do not significantly alter my view of this matter.

15These documents provide more information as to what the applicant was doing in the period 2005-2007. They indicate that a principle interest of the applicant was to resolve the Workplace Safety and Insurance Board (“WSIB”) benefits that she believed she was entitled to. They also indicate that the applicant entered into a Labour Market Re-Entry program and attempted to pursue with her union and former employer opportunities to return to work from early in 2005 to early in 2007. These efforts did not succeed. In October 2007 the applicant chose to file an application with the OLRB on the basis that the CAW had failed in its duty to fairly represent her. The OLRB’s subsequent decision dated, December 14, 2007 states that:

Having regard to the agreement of the parties the Board hereby consents to the adjournment of this application sine die for a period not exceeding a year. Unless within that time any party requests that the Board proceed with the matter, it will be deemed terminated without any notice to the parties.

The applicant does not provide any information about what the nature of the agreement was or suggests that any actions were taken by the parties after December 2007 including requesting that the OLRB proceed with the matter.

16Based on the information provided by the applicant, it does appear that the applicant was actively trying to return to work during the period 2005 to 2007 and that this effort involved the key parties; her former employer and the CAW. This could suggest that the applicant believed, in good faith, that during this period there were opportunities to potentially resolve her benefits issues and to return to work.

17However, by October 2007 the applicant is pursuing her rights by legal means when she files an application with the OLRB. The OLRB’s December 2007 decision does not resolve the applicant’s interests.

18In these circumstances I am not satisfied the applicant has established there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. The fact that the applicant was supposedly unaware that she could pursue a human rights complaint or application during this period is not a sufficient reason for the Tribunal to now accept her Application.

19There is no information that suggests that there would be reason to overcome the public interest in the finality of Tribunal decisions. As the applicant’s request for reconsideration does not satisfy any of the requirements of section 26.5 of the Tribunal’s Rules, it is dismissed.