Boyce v. Toronto Community Housing Corporation, 2010 HRTO 1110

Human Rights Tribunal of Ontario

B E T W E E N:

Randolph Boyce

Applicant

-and-

Toronto Community Housing Corporation, Natalie Patel and Mary Richardson

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: May 18, 2010

Citation: 2010 HRTO 1110

Indexed as: Boyce v. Toronto Community Housing Corporation

1On April 7, 2010, the Tribunal issued its Decision in this Application, 2010 HRTO 520, upholding the Application in part. The corporate respondent has asked the Tribunal to reconsider its Decision. In accordance with the Tribunal’s Practice Direction and Rules, the applicant has not yet been asked to respond to the Request to Reconsider (the “Request”).

background

2The Application alleged that the respondents failed to accommodate the applicant following a work-related injury. The Tribunal’s Decision found that the respondents failed to properly consider the applicant’s request that he be allowed to do the job of Parking Administrator at a different location than the location offered and failed to properly investigate accommodations that would have allowed the applicant to do the Parking Administrator job at the location offered. The Decision made no findings on what damages, if any, the applicant is entitled to. It directed that the hearing be reconvened to hear further evidence and submissions on the issue of damages.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. The Decision applied the wrong test in concluding that the respondent did not accommodate the applicant;

b. The Decision did not consider all of the evidence regarding the respondent’s efforts to accommodate;

c. The Decision improperly denied a request to defer consideration of the Application pending completion of procedures under the Workplace Safety and Insurance Act, 1997;

d. The Decision failed to address a request to remove the personal respondents;

e. The Decision improperly indicated that the hearing should be bifurcated so that the question of remedy would be dealt with only if there was a finding that the applicant’s Code-protected rights had been infringed.

The Reconsideration Test

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules:

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.

5The Tribunal has issued Rules governing such requests 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,” January 2008, amended June 2008). Most relevant to this matter is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

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.

6The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

7As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

Analysis

8In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

9The Tribunal also stated in Sigrist and Carson that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the respondents clearly disagree with the conclusions of the Tribunal, I am satisfied that its submissions on this Request do not establish that the Decision conflicts with established jurisprudence.

10With respect to the issue of whether the Tribunal should have deferred further consideration of the Application, I note that, according to the Request, the applicant filed an appeal or objection with the WSIB on April 7, 2010. No documentation was provided in support of this assertion. This is new information that may be relevant to the future handling of the Application.

11The applicant is directed to provide information about the current status of his WSIB claim. This information must be provided to the respondent and the Tribunal within 14 days of the date of this Decision.

12The Request indicates that at the hearing the respondents asked that the personal respondents be removed. This request was made at the hearing, although detailed submissions on this point were not made. The applicant did not oppose the request. This matter will be dealt with when the hearing reconvenes.

13According to the Request, the respondents did not understand that there was an agreement that the hearing would be bifurcated. My understanding was that the parties agreed that the hearing would reconvene in the event that I found that there had been a violation of the Code. Even if that had not been agreed to, I would still have directed that the matter reconvene to hear more evidence and submissions. As noted in the Decision, there are matters that I require more information about.

14In conclusion, I find that the respondents have not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.