HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Maidy Chao Applicant
-and-
Mon Sheong Home for the Aged Respondent
A N D B E T W E E N:
Maidy Chao Applicant
-and-
Canadian Union of Public Employees, Local 2725, Risa Pancer, Mon Sheong Foundation and Grace Lo Respondents
reconsideration decision
Adjudicator: Faisal Bhabha Date: July 21, 2010 Citation: 2010 HRTO 1583 Indexed as: Chao v. Mon Sheong Home for the Aged
BACKGROUND
1The applicant filed these Applications under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). In a Decision dated May 31, 2010, 2010 HRTO 1220, the Tribunal dismissed the Application as against Mon Sheong Home for the Aged, Mon Sheong Foundation and Grace Lo (the “Mon Sheong respondents”) on the basis of delay. The Tribunal ordered that a hearing be scheduled to hear evidence with respect to the union respondents’ liability for alleged Code breaches.
2On June 14, 2010, the applicant filed a Form 20 seeking Reconsideration of the Decision dismissing the Application against the Mon Sheong respondents.
REQUEST FOR RECONSIDERATION
3Section 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. Pursuant 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 exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
4It 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 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.
THE APPLICANT’S POSITION
5The applicant argues that there are new facts and evidence that should influence the Tribunal to reach a different conclusion. The following is a summary of the new information the applicant has introduced in support of her Reconsideration Request:
- The applicant suffers from Major Depressive Disorder.
- Mental health issues are what prevented her filing a timely application. She needed to focus on her health in order to prepare an adequate application to the Tribunal.
- The applicant has difficulty producing coherent written submissions.
- The applicant did not have counsel between May 2008 and May 2009 and therefore was unable to file an application.
- The applicant had no support from her union, who actually prevented her from filing an application.
- The applicant had to rely on her teenaged son to assist her with this matter.
6The applicant filed a number of medical documents in support of her Request, including test results, a list of medications prescribed and hospital records. Much of the documentation concerns medical issues unrelated to her mental disability. Of interest is a report dated July 30, 2008 by Staff Psychiatrist, Dr. Samuel Law at St. Michael’s Hospital, responding to questions from a community legal worker who was assisting the applicant with her application for income support from the Ontario Disability Support Program (ODSP).
7In the report, Dr. Law found that the applicant was experiencing significant mental health symptoms, which he described as “difficulty concentrating and performing the activities of daily living. She also looks after her two children, which places more challenges for her. On the other hand, she is not ill enough to warrant community support workers to visit her at home.” Dr. Law went on to recommend that while she was not fit to work, the applicant was fit to attend to basic life tasks and parenting.
DECISION
8In order to grant Reconsideration, the Code requires not only that there be new facts or evidence that could potentially be determinative of the case, but also that they could not reasonably have been obtained earlier. The applicant did not specifically argue why this new information could not have been obtained and filed earlier, or why she did not raise the argument regarding her mental health challenges when she had an opportunity to do so, through an interpreter, at the hearing. On that basis alone, I am not prepared to grant her Request.
9However, it is worth noting that had I been prepared to review the documents, there is little support for the applicant’s explanation. In June 2008, when, by her own admission, she was no longer represented by counsel, the applicant filed a Duty of Fair Representation Application at the Ontario Labour Relations Board against her union. In September 2008, again while unrepresented, she withdrew that application. These events are contemporaneous with the assessment by Dr. Law, whose report confirms that while the applicant was experiencing significant mental health challenges, she was not prevented from handling her basic affairs. Thus, it is difficult to see how the applicant was prevented by reason of her disability from commencing proceedings at this Tribunal, when at the same time she was engaged in the process of at least one other administrative agency.
10It is therefore clear that there is no basis to reconsider the Decision in the light of all the facts and circumstances.
Dated at Toronto, this 21st day of July, 2010.
”signed by”__________
Faisal Bhabha Vice-chair