Human Rights Tribunal of Ontario
Between:
Shannon Bertrand Applicant
-and-
City of Toronto, Toronto Emergency Medical Service, Sandra Cuff and David Dolomont Respondent
Reconsideration Decision
Adjudicator: David Muir Date: January 18, 2010 Citation: 2010 HRTO 107 Indexed as: Bertrand v. Toronto (City)
1This Decision addresses a Request for reconsideration of the Tribunal’s Interim Decision, 2009 HRTO 2129, deferring the Application pending the outcome of a grievance arising out of the same circumstances raised in the human rights complaint and involving similar issues.
2On January 13, 2010, the applicant filed a Request for reconsideration under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”).
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.
3Rule 25 of the Tribunal’s Rules of Procedure for Transitional Applications under Section 53(3) and 53(5) of the Code provides any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision. Rule 25.5 provides:
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.
4Although the decision in question was not a final decision within the meaning of the Rule and therefore not a decision that can be reconsidered under the Tribunal’s Rules the circumstances are such that it is appropriate to respond to the Request.
5In making the Request the applicant made two central submissions. In the first place the applicant questions the status of the respondents City of Toronto or CUPE 416 to bring an application under section 53 or 55 of the Code. Whether either entity is able to bring a human rights application or not, there is no indication that either have done so or how that question relates to the Request for reconsideration.
6Secondly, the applicant states that since my Interim Decision on deferral was released she has received a decision of the labour arbitrator hearing her grievance limiting the time period over which she has jurisdiction under the grievance. Accordingly the applicant states that the grievance arbitration does not encompass the entire period covered by her complaint and the Application ought to proceed to a hearing.
7I have reviewed the arbitrator’s decision and I agree with the applicant that the arbitrator has limited her jurisdiction such that it appears not all of the allegations she has made in the complaint will be dealt with. That is not a reason in my view to reconsider the decision to defer the Application pending the arbitration which is already underway before an experienced labour arbitrator dealing with many if not all of the issues raised in the Application. I also note at this stage that in the event that this Application were to proceed further there may be delay issues with respect to some aspects of the complaint underlying this Application.
8The applicant states that it would be a travesty of justice if she were not given an opportunity to present her whole case. I note that the Interim Decision only defers the Application. It has not been dismissed.
9The Request for reconsideration is denied.
Dated at Toronto, this 18th day of January, 2010.
“Signed By
__________________________________
David Muir
Vice-chair