Abbas Sadaghyani v. Kingston General Hospital, 2009 HRTO 275

Human Rights Tribunal of Ontario

B E T W E E N:

Abbas Sadaghyani

Applicant

-and-

Kingston General Hospital, Cathy Shaw, Gary Bedford and Ontario Public Service Employees Union

Respondents

RECONSIDERATION DECISION

Adjudicator: Sherry Liang

Date: March 10, 2009

Citation: 2009 HRTO 275

Indexed as: Sadaghyani v. Kingston General Hospital

1This is an Application made under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") on September 4, 2008.

2On December 24, 2008, the Tribunal issued a Decision dismissing this Application on the basis that it is barred under section 53(8) of the Code. The Tribunal found that the subject-matter of the Application is substantially the same as the subject-matter of a complaint filed by the applicant with the Ontario Human Rights Commission (the Commission) in 2004. That complaint was withdrawn in March 2005.

3The applicant requests reconsideration of the Tribunal's Decision of December 24, 2008. Before me I have the Request for Reconsideration dated February 25, 2009 as well as a letter from the applicant to the Tribunal of February 5, 2009. Although the Tribunal's Rules of Procedure require that a request for reconsideration be made within 30 days of the date of the decision, I have the discretion to waive or vary time limits in the Rules. In this case, it appears that there was a delay in the receipt of the Tribunal's Decision by the applicant due to an error in mailing and I will consider the Request despite the fact that it is dated beyond the 30-day requirement.

4Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions. Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance to the community on the Tribunal's exercise of its reconsideration powers (Practice Direction on Reconsideration).

5Most relevant here are the following provisions in the Tribunal's Rules:

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.

6In the Request for Reconsideration, the applicant has checked off the boxes indicating that he is relying on Rules 26.5 (a), (b) and (d) above. In his accompanying letter he states that there is a public interest in that if the Tribunal holds a public inquiry, "everyone will know what the Union is doing to people who tell the truth and speak up for their rights." He provides reasons why he believes the Tribunal's decision was wrong, and also states his view that the Commission and the Ontario Labour Relations Board (to which he made a related complaint in 2004) did not handle his case properly.

7Much of the applicant's letter of February 25, 2009 is about his continuing and unsuccessful attempts to find work in the health care field. Among other things, the applicant makes the assertion, not contained in his original Application, that his former union and employer have jointly blacklisted him from obtaining work elsewhere.

8The applicant's letter of February 5, 2009 also contains his objections to the Tribunal's decision. He states, among other things, that his Application should not have been dismissed without a hearing, that he had been prepared to attend mediation, and that the Tribunal did not give him a chance to call his witnesses. The applicant also gives reasons why the Tribunal should not have dismissed his Application on the basis of his prior complaint with the Commission.

DECISION

9I find that the applicant has not met any of the criteria in Rule 26.5 that could lead to reconsideration of the Tribunal's Decision.

10The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. His new assertions about a "blacklist" are not part of the Application before the Tribunal and in any event there is no indication that he could not have identified these facts earlier.

11There is nothing before me suggesting that the applicant was entitled to but did not receive notice of the proceeding or a hearing. As indicated earlier, there was a delay in the applicant's receipt of the Decision, but there is no suggestion that this delay denied him any opportunity to participate in the proceeding.

12The applicant contends that the Tribunal should not have dismissed the Application without a hearing at which he could call his witnesses. It is evident that the applicant wishes to have his Application heard on its merits. The Tribunal has given its reasons why the Application is barred under section 53(8); in these circumstances, the Tribunal is not obliged to and indeed cannot inquire into his Application on its merits.

13The applicant has identified no other factors that outweigh the public interest in the finality of Tribunal decisions.

14The Tribunal has said that reconsideration is not an appeal. It is not an opportunity to re-argue a case. Once the parties have been given an opportunity to present their case and the Tribunal has made its decision, they are entitled to treat the matter as closed, barring exceptional circumstances. It is clear that the applicant disagrees with the Tribunal's Decision and his submissions on his Request for Reconsideration repeat many of the submissions made earlier to the Tribunal. His disagreement, however, does not provide a basis for reconsideration.

15The Request for Reconsideration is denied.