Gagne v. Maximum Mining, 2010 HRTO 1493

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gilles Gagne

Applicant

-and-

Maximum Mining Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Alison Renton

Date: July 8, 2010

Citation: 2010 HRTO 1493

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 (“the conference call hearing”) 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.

4The 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”.

5He 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.

6The Tribunal issued an Interim Decision dated May 12, 2010 (2010 HRTO 1064) (“the May Interim Decision”) in which it directed the applicant to provide information to the Tribunal and respondent’s counsel within 7 days of the date of the Interim Decision. Specifically, the applicant was to provide:

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.

7The applicant sent the Tribunal a fax on May 21, 2010 in response to the May Interim Decision, but provided no explanation as to why it was submitted beyond the 7 day limit set by the Tribunal in the May Interim Decision. There is no indication on the fax of whether the applicant also sent it to the respondent’s counsel, as directed by the Tribunal.

8On the fax, the applicant advised that “The WSIB file has been reviewed and does not contain information of what is mentioned in the reconsideration form”. He noted that his family physician had closed his office and that his medical records were now being held by a records storage company, and he was waiting for the records to be delivered. He provided no proof of his request. Also attached to the fax was a Canada Post receipt dated February 11, 2009 with a tracking number on it for a package to be delivered to the Tribunal’s postal code, a copy of a scanned signature for that tracking number which appears to have been signed on 2009/12/13, and fax from a Canada Post representative stating that the signature was being sent to trace for further investigation because it did not appear to match the name of the person who signed for the package. No further information has been provided by the applicant.

9The respondent sent the Tribunal a letter dated June 18, 2010 objecting to the applicant’s reconsideration request and noting that the Request for Reconsideration, copies of documentation ordered to be produced in the May Interim Decision in addition to the Application were all filed in an untimely manner.

REQUEST FOR RECONSIDERATION

10Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it reconsider its decision. The Rules 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.

11Pursuant 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.

12It 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.

13The Tribunal determined that the Application was untimely and dismissed the Application on that basis. While the applicant’s Request and the documents he was directed to disclose in the May Interim Decision (“the subsequently disclosed documents”) were untimely and the applicant does not provide an explanation as to why they are untimely, the applicant’s Request is dismissed because he does not meet the 4 factors set out in Rule 26.5.

14While his doctor has stopped practicing, the applicant has not provided a reasonable explanation as to why his medical documentation could not have been obtained and disclosed prior to the conference call hearing. He admits that his WSIB file does not contain the information that he stated in his Request. He does not provide an explanation as to why he did not disclose the Canada Post documentation that was also reasonably available to him before the conference call hearing. Further, he does not explain why he failed to raise these issues at the conference call hearing.

15As a result, I do not find that any of the factors that are listed in Rule 26.5 are met and the Request for Reconsideration is dismissed.