Ababio v. Humber Regional Hospital, 2009 HRTO 622

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cynthia Ababio

Applicant

-and-

Humber River Regional Hospital, Robert Thistle and Jill Green

Respondents

RECONSIDERATION DECISION

Adjudicator: Janice Sandomirsky

Date: May 14, 2009

Citation: 2009 HRTO 622

Indexed as: Ababio v. Humber Regional Hospital

INTRODUCTION

1On March 13, 2009, the Tribunal issued its Decision, 2009 HRTO 286, dismissing the Application on the basis of a number of preliminary findings. On April 16, 2009, the applicant filed a Request for Reconsideration of the Decision, as provided for in section 45.7 of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the "Code").

2The Decision the applicant is seeking to have reconsidered addressed two Applications that were combined by the Tribunal in an earlier Interim Decision, 2008 HRTO 201,: one against Humber River Regional Hospital, Robert Thistle and Jill Green (the "employer application"); and, one against the Service Employees International Union Local 1 Canada ("SIEU"), Tim Oribine, Keven Kucey and Andrea Przybio (the "union application").

3The Request for Reconsideration is limited to the employer application. In it the applicant also named a co-worker, who was not identified as a respondent in the employer application, and did not name Robert Thistle as a respondent. The Request for Reconsideration is not an opportunity to add or delete respondents to the Application in issue and, therefore, the respondents named in the original employer application are considered the parties to this Request for Reconsideration.

4The applicant identified two grounds for the Request: first, that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; and second, that the Decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

RELEVANT LEGISLATIVE PROVISIONS

5Sections 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.

(2) 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.

6Further 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).

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.

8Relevant to this Decision are the following Rules:

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

25.3. 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.

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;

(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.

ANALYSIS

9The Decision the applicant is seeking to have reconsidered only dealt with preliminary objections filed by the respondents. The issues raised by the employer were whether the Application was out of time, under section 34(1) of the Code, whether the issues have already been dealt with in another proceeding, under section 45.1 of the Code, and, if so, whether the applicant agreed to release the employer of all claims as part of the settlement reached in the arbitration of the termination grievance. The Case Resolution Conference, and the resulting Decision, did not consider the substance of the applicant's human rights complaint against her employer.

10In considering the first ground for the applicant's Request for Reconsideration, I find that she did not provide any new facts or evidence that could potentially be determinative of the case. The submissions set out a detailed chronology of the events that lead up to, and followed, her termination from employment and the arbitration process that resulted in a settlement of her grievance against the employer. The submissions also review her explanation for the delay in filing her human rights complaint with the Commission. All of the information was presented and reviewed at the Case Resolution Conference. Furthermore, most of the information goes to the substance of her human rights claim rather than the preliminary issues that were considered in the Decision she is seeking to have reconsidered.

11In support of the second ground for requesting reconsideration, I find that the applicant did not identify any case law to establish that the decision is in conflict with established case law or Tribunal procedure. She submitted that she would have brought witnesses to the Case Resolution Conference but she did not receive a letter from the Tribunal advising her to do so as required by Rule 9.7 of the Tribunal's Rules. Given that the Case Resolution Conference was set up to hear submissions on the preliminary issues, there was no need for the parties to bring witnesses. I find that the procedures followed in this case were not in conflict with established Tribunal procedure.

12The only paragraph in the applicant's submissions that appeared to address the question of whether the reconsideration involved a matter of general or public importance is the following:

If the Tribunal decides not deal with my complaint against the employer which is discrimination due to illness, which happens mostly in hospitals across Toronto, where would the low income and uneducated by human rights like myself and so many other employees go for help and to be heard? Would the Tribunal allow employers to continue using hear-say witnesses to terminate employees and to condone gossiping in the workplace?

The Tribunal is available for individuals to bring their human rights claims against their employers. The decision to dismiss this Application was based on consideration of statutory provisions that require applicants to file their applications in a timely manner and guards against duplication of proceedings on the same issue. The decision to dismiss the Application does not present a barrier for other applicants from bringing forward their human rights claims against their employer.

13As noted in the Tribunal's Practice Direction quoted above, reconsideration is a discretionary remedy and the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances which outweigh the public interest in the 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.

14For these reasons the Request for Reconsideration is dismissed.