HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gilles Gagne
Applicant
-and-
Maximum Mining Inc.
Respondent
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Gagne v. Maximum Mining
INTRODUCTION
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) alleging discrimination in employment on the basis of disability, association and reprisal. The Application identified February 13, 2007 as being the date of the last event upon which the Application was based.
2A conference call hearing was held on March 8, 2010 during which time the Tribunal heard submissions from the parties on the applicant’s delay in filing his Application. It became apparent during the conference call hearing that the February 13, 2007 date identified on the Application form as being the last date upon which the Application was based should have been February 13, 2008 (the date the applicant’s employment was terminated) rather than 2007. Following the hearing, the Tribunal issued a Decision, dated March 29, 2010, 2010 HRTO 689, dismissing the Application (“the Decision”). In the Decision, the date the applicant filed the Application was incorrectly recorded as being February 19, 2009, rather than February 17, 2009.
3On April 29, 2010, the applicant filed a Request for Reconsideration (“the Request”) asking the Tribunal to reconsider its Decision. Pursuant to Rule 26.4 of the Tribunal’s Rules, a respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal.
REQUEST FOR RECONSIDERATION
4Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it reconsider its decision. The Rues elaborate on the conditions and requirements of such a request. Rule 26.1 provides:
Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days from the date of the decision.
5Pursuant to Rule 26.5, 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 exit that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
6It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which 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 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.
7The applicant’s Request was filed on April 29, 2010, outside of the 30 day period set out in Rule 26.1. In the Request, the applicant indicated that Rules 26.5(a), (b), (c) and (d) apply. He clarified that the social services he contacted, as outlined in para. 5 of the Decision, were in relation to his WSIB and wrongful dismissal matters. He explained that his “calendar records” show that his Application was sent February 11, 2009 via “Canada Post Express registered mail”, two days before the one year limitation period, but that the Tribunal received the Application “an astonishing 6 days later”.
8He submitted that, as a reason for his delay in filing his Application, that following his February 13, 2008 termination, he obtained medical treatment, was diagnosed with depression and contracted post traumatic stress disorder. He submits that he filed this medical documentation with the Tribunal, along with WSIB claim information, and that the Tribunal returned the documentation to him saying that it did not require his WSIB file, just the form that activated the WSIB claim. He pointed that that his Application, which was handwritten, was completed on different dates because he could only dictate so much as a time because of mental capacity loss. He did not explain why this information was not raised during the conference call hearing. He did not explain why during the conference call hearing he stated that he received medical treatment before his termination, not subsequent to his termination as he now claims.
9The Tribunal appreciates the public interest in the finality of its decisions. Before it can decide whether there are compelling circumstances that would lead the Tribunal to consider the Request for Reconsideration, it requires additional information.
10Rule 26 requires that the Tribunal shall not grant a Request for Reconsideration without providing the parties an opportunity to make submissions. However, in this case, the Tribunal needs to hear first from the applicant.
11The applicant is directed to provide the following:
a) Copies of the WSIB materials he says were returned to him by the Tribunal;
b) Copies of any records showing that his Application was sent to the Tribunal by Canada Post on February 11, 2009.
12The applicant is directed to send his response to the issues identified above, together with any relevant documentation, to the respondent’s counsel and to the Tribunal within 7 days of the date of this Interim Decision.
13After receiving and considering the applicant’s submissions, the Tribunal may request submissions from the respondent.
Dated at Toronto, this 12^th^ day of May, 2010.
“Signed By”
Alison Renton
Vice-chair