Formosa v. Toronto Transit Commission, 2009 HRTO 251

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Monica Formosa

Applicant

-and-

Toronto Transit Commission, Dennis Childs, Ron Chong and Gigi Mallais

Respondents

RECONSIDERATION DECISION

Adjudicator: Kaye Joachim

Date: March 5, 2009

Citation: 2009 HRTO 251

Indexed as: Formosa v. Toronto Transit Commission

INTRODUCTION

1On January 16, 2009, the Tribunal issued a Decision, 2009 HRTO 54 dismissing the Application.

2On February 13, 2009, the applicant filed Notice of a Request for Reconsideration of the Tribunal’s decision, as provided for in section 45.7 of the Code. In the Request for Reconsideration, the applicant submitted that the Decision was “in conflict with established jurisprudence, that the proposed reconsideration involves a matter of general and public importance and because other factors exist that outweigh the public interest in the finality of Tribunal decisions.”

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:

98. Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.

99. 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.

102. 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 submitted that the Tribunal’s finding that the applicant did not sufficiently identify her disability was in conflict with established jurisprudence (Adga Group Consultants Inc. v Lane, 2008 CanLII 39605, Lane v. ADGA Group Consultants Inc., 2007 HRTO 34), and the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate. I do not agree. My finding that the respondents did not have sufficient information upon which to initiate an inquiry into the applicant’s disability related needs was a factual conclusion based on all the evidence and not an imposition of a higher legal burden with respect to disclosure.

9The applicant submitted that I failed to apply the correct legal test as set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission v BCGSEU, 1999 CanLII 652 (S.C.C.) (“Meiorin”) in assessing whether the respondents met their duty to accommodate. In particular, she alleges that I applied a test of “reasonable accommodation” rather than the correct legal standard of accommodation short of undue hardship. Again, I respectfully disagree. I found on the basis of the evidence that the respondent had taken reasonable steps to accommodate the applicant. Those steps failed. I found that it was not possible to accommodate the applicant and therefore the issue of undue hardship did not arise.

10The applicant submits that my finding that the she was in the position of a “job applicant” and that the respondent was not required to make reassignment available to job applicants was contrary to the established jurisprudence requiring a broad interpretation of the term “employment.” None of the legal sources cited dealt with the specific situation of a job applicant and therefore my decision is not in conflict with any established jurisprudence. Indeed, as stated in my decision, I relied upon the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate section 3.3.2(b) in reaching this conclusion.

ORDER

11The Request for Reconsideration is dismissed.