Bajouco v. Ontario Nurses’ Association, 2010 HRTO 1510

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Florips Bajouco

Applicant

-and-

Ontario Nurses’ Association and Mark Miller

Respondents

RECONSIDERATION DECISION

Adjudicator: Ena Chadha

Date: July 13, 2010

Citation: 2010 HRTO 1510

Indexed as: Bajouco v. Ontario Nurses’ Association

WRITTEN SUBMISSIONS BY

Florips Bajouco, Applicant ) On Her Own Behalf

Ontario Nurses’ Association ) Jo-Anne Pickel, Counsel

and Mark Miller, Respondents )

1The applicant filed an Application with the Tribunal on March 6, 2009 alleging discrimination and reprisal in employment, membership in a vocational association and goods, services and facilities on the basis of disability contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). On September 8, 2009, the Tribunal issued a Decision, 2009 HRTO 1418, dismissing this Application. On December 21, 2009, the applicant wrote to the Tribunal asking the Tribunal to reconsider its Decision.

2The Tribunal provided the respondents with the opportunity to file submissions in Response to the applicant’s Request for Reconsideration, as well as an opportunity for the applicant to file a Reply. The respondents’ Response submissions and the applicant’s Reply were received and fully considered.

background

3The Tribunal’s Decision found that the Application was barred under section 53(8), as its subject-matter was substantially the same as the subject-matter of the human rights complaint that the applicant previously filed with the Ontario Human Rights Commission (“Commission”). Specifically, the Tribunal held that the Application and the previous human rights complaint dealt with the same allegations of disability discrimination, harassment, reprisal and failure to accommodate in reference to a similar period of time and similar parties.

THE REQUEST FOR RECONSIDERATION

4In her Request for Reconsideration, the applicant submits that the the Tribunal should reconsider its Decision because her human rights complaint was not dealt with in a “fair or honest manner” by the Commission and that her employment-related accommodation concerns remain unresolved. The applicant further notes that the Tribunal’s Decision incorrectly stated that the Commission dismissed her reconsideration application of her previous human rights complaint in August 2009, when, in fact, the Commission rejected the reconsideration in August 2008.

5In their response to the Request for Reconsideration, the respondents note that, notwithstanding the typographical error with respect to the Commission’s dismissal date, the subject-matter of the Application was the same or substantially the same as the subject matter of the previous human rights complaint and, therefore, the Tribunal’s Decision was correct. The respondents submit that the accurate date does not represent a new fact or evidence and does not affect the substance of the Tribunal’s decision.

RELEVANT LEGISLATIVE PROVISIONS

6Section 45.7 of the Code provides the Tribunal with authority to reconsider its decisions. Further to its power to make rules, the Tribunal has issued Rules governing Requests for Reconsideration. Most relevant to this Decision 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 [emphasis added]

7Rule 26.5 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;

(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;

(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 and orders.

8The Tribunal has also issued 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). The Tribunal’s Practice Direction on Reconsideration states, in part, the following with respect to the Tribunal’s power to grant reconsideration:

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.

DECISION

9I find that the applicant has provided no explanation or information as to why this request for reconsideration was made beyond the timeline stipulated in Rule 26. The applicant was required to file her request for reconsideration within 30 days of the Tribunal’s September 8, 2009 Decision; however, the applicant did not submit her request for reconsideration until December 21, 2009, at which point the deadline for seeking reconsideration had elapsed. On this basis alone, the Tribunal may deny the Request for Reconsideration. See der von Felix v. International Financial Data Services (Canada), 2010 HRTO 362.

10I find that even if the Request had been made in a timely manner, the grounds for seeking reconsideration do not meet the Rule 26 factors as set out above. The applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration. First, it is not sufficient basis for reconsideration that the applicant perceives that she was treated unfairly by the Commission. The Tribunal is not an appeal body for Commission decisions, nor does the Tribunal review the Commission’s processes. Second, it is not sufficient basis for reconsideration that the applicant perceives that she was treated unfairly by the respondents. As indicated in the Practice Direction, reconsideration is not an appeal process, nor an opportunity for a party to resubmit positions previously argued. Third, I accept the respondents’ submissions that the erroneous date stated in the Tribunal’s decision does not alter the Tribunal’s conclusion that the applicant’s human rights complaint raised substantially the same matters that are set out in the Application. I find that the conclusions reached in the Decision with respect to the considerations under 53(8) of the Code would not have been different.

11The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. Further, I am not convinced that any findings made in the Decision are in conflict with established jurisprudence, nor that there are any concerns with respect to the applicant’s right to notice.

12In sum, I find that the applicant failed to file her request for reconsideration in a timely manner and has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The applicant is attempting to re-argue her case by repeating the same arguments that were made earlier. Accordingly, the Request for Reconsideration is denied.