Kovacs v. Arcelor Mittal Montreal Inc., 2010 HRTO 1029

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Kovacs

Applicant

-and-

Arcelor Mittal Montreal Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Sheehan

Date: May 7, 2010

Citation: 2010 HRTO 1029

Indexed as: Kovacs v. Arcelor Mittal Montreal

1The applicant filed a Request for Reconsideration of the Tribunal’s decision 2010 HRTO 303 pursuant to section 45.7 of the Ontario Human Rights Code R.S. O. c. H. 19, as amended (the “Code”).

2Rule 25.5 provides that 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 Practice Direction on Reconsideration issued by the Tribunal suggests the following regarding the Tribunal’s power to grant reconsideration:

(1) Decisions of the Tribunal are generally considered final and are not subject to appeal.

(2) Reconsideration is a discretionary remedy and there is no right to have a decision reconsidered by the Tribunal.

(3) 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.

(4) Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

4The applicant based his reconsideration request upon Rule 25.5 (c).

5The first noteworthy aspect of the reconsideration request is that it sets out a detailed argument regarding the impact of section 25(2.1) of the Code. In particular the applicant, in his reconsideration request, provides an analysis of the interrelationship of section 25 (2.1) of the Code, section 44(1) of the Employment Standards Act, 2000 and section 4(3) of Ontario Regulation 286/01. That detailed analysis was not part of the applicant’s submissions at the hearing of the Application. Moreover, reference is made to an authority, Thomson Reuters Canada Limited Employment Standards Act –Policy & Interpretation Manual, that was not relied upon by the applicant at the hearing.

6As suggested in the Practice Direction on Reconsideration, a reconsideration request is not a vehicle for a party to repair the deficiencies in the presentation of its case. The appropriate place that the applicant should have advanced his detailed interpretation of section 25(2.1) of the Code, and the related statutory provisions, was at the hearing. The applicant clearly had more than ample opportunity to prepare that argument prior to the hearing, as the respondent’s argument regarding the impact of section 25(2.1) was outlined in the material it had filed prior to the hearing. Also, as suggested in the Practice Direction on Reconsideration, a reconsideration request is not a right of appeal. The fact the applicant has a divergent view as to the appropriate interpretation of section 25(2.1), and the related statutory provisions, it is not relevant for the purposes of a reconsideration request.

7That being said, in my view the applicant’s argument is premised on an erroneous interpretation of section 41(1) of the Pension Benefits Act. That provision relates to a completely unrelated issue of the right of an employee who is entitled to a deferred pension to elect, in certain circumstances, to receive an early retirement pension. That provision in no way regulates, or has any bearing, on the manner in which a voluntary early retirement program is to be structured.

8The reconsideration request asserts the Tribunal’s decision is in conflict with established jurisprudence. In particular it is suggested the decision is in conflict with two arbitration decisions referenced in the Tribunal’s decision. It is acknowledged by the applicant that in both cases it was found that a voluntary early retirement program that was not available to teachers under the age of 55 did not violate the Code because of the impact of section 25(2.1). The reconsideration request, however, attempts to limit the impact of those two decisions by distinguishing the facts existing in those cases from the facts involving the applicant. The applicant’s effort to distinguish those cases is far from convincing. Even if it was convincing, at best it would suggest that those decisions did not support the Tribunal’s reasoning; not that those decisions were in conflict with that reasoning. Accordingly the reconsideration request fails to advance any basis to suggest that the Tribunal’s decision is in conflict with existing jurisprudence.

9Finally, the decision of the Tribunal was solely based on the submissions and the material properly placed before it at the hearing.

10In light of the above reasons the Request for Reconsideration is dismissed.