Phinney v. Wessuc, 2010 HRTO 1831

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jack Phinney

Applicant

-and-

Wessuc Inc., Hank Jay Van Veen, Shane Van Veen, Ray Van Veen

and Richard Van Veen

Respondents

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: September 7, 2010

Citation: 2010 HRTO 1831

Indexed as: Phinney v. Wessuc

INTRODUCTION

1On June 11, 2010, the Tribunal issued its Decision in this matter, 2010 HRTO 1331, dismissing the Application because the applicant had failed to establish that the respondents had discriminated against him in employment because of his disability.

2On July 9, 2010, the applicant filed a Request for Reconsideration of the Tribunal’s Decision, as provided for in section 45.7 of the Ontario Human Rights Code, R.S.O., 1990, c. H.19, as amended (the “Code”). In his Request for Reconsideration, the applicant claims the Tribunal did not fully consider all of the facts in the case file and failed to address the applicant’s claim of reprisal.

DECISION

3The Request for Reconsideration is dismissed.

RELEVANT LEGISLATIVE PROVISIONS

4Sections 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal’s decisions:

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.

Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

45.8 Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

5Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers (Practice Direction 4: Reconsideration).

6Relevant to this Decision are the following Rules:

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

25.3. A Request for Reconsideration must include:

(a) reasons for the request, including the basis on which the Tribunal is asked to grant the request for reconsideration;

(b) submissions in support of the request; and,

(c) the remedy or relief sought.

25.5. 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.

7Practice Direction 4 states, in part:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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.

ANALYSIS

8In his Request for Reconsideration, the applicant asserts the Tribunal failed to consider his claim of reprisal. The ground of reprisal is set out in section 8 of the Code and reads as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

9The applicant claims he was reprised against when his work hours were reduced on his return to the workplace and when he was required to take a day off work to attend a medical appointment related to a sore throat. These are the same allegations that were made by the applicant in his claim of disability-based discrimination and which were dealt with by the Tribunal.

10The applicant’s allegations of differential treatment were appropriately dealt with by the Tribunal as disability-based discrimination and not reprisal because they were unrelated to any human rights claim by the applicant during his employment. The first human rights claim made by the applicant was after his employment was terminated and his complaint with the Commission was filed.

11In the Request for Reconsideration, the applicant disputes the Tribunal’s finding that his termination immediately following his heart attack was not discriminatory because it was done to avail the applicant of sick leave benefits. The applicant claims he could have returned to work sooner with accommodation. There is no evidence before the Tribunal that the applicant made any attempt to return to work at an earlier date or that he was physically able to do so. Similarly, there is no evidence before the Tribunal that the applicant sought accommodation in the workplace. The applicant was cleared to return to work by three different doctors without restrictions. Reconsideration is not an opportunity to raise speculative arguments in the absence of evidence to support them.

12The applicant also disputes the Tribunal’s finding that he was terminated because of his numerous complaints (including one to a customer of the employer) and not because of his heart attack. The applicant claims there was no evidence before the Tribunal to substantiate this finding. The applicant is incorrect in his assertion. The Tribunal relied upon the direct evidence of Hank Van Veen who testified about the numerous complaints that had been made by the applicant including a complaint to a customer, Veolia Water.

13Finally, the applicant claims the Tribunal failed to consider all of the information in the “case file” when it reached its decision. The human rights complaint filed by the applicant and the respondent’s response was not put into evidence at the hearing of this matter. The Tribunal’s decision was based on the evidence before it. The applicant cannot use the Reconsideration process as an opportunity to adduce evidence that was available to him at the time of the hearing.

14The bulk of the applicant’s submissions in his Request for Reconsideration constitute re-argument of the same arguments that were made at the hearing or supplemental arguments based on points raised during the hearing. The applicant has not identified new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. Indeed, the applicant expressly states his Request for Reconsideration does not rely on new facts. An excerpt of his submissions on this point is reproduced below:

We respectfully request a reconsideration of the HRTO decision dated June 11, 2010 based on the various facts and information presented above here. This is not new material, but rather documentation and stated facts that were in the case file throughout the duration of the proceedings. The intention here is not to put forth new facts or evidence, but rather to reconsider if the existing facts and evidence were fully considered and given proper weight in the outcome of this matter. (emphasis added)

15In essence, the applicant uses the reconsideration process as an opportunity to express his disagreement with the Tribunal’s finding that he was not discriminated against during employment. In 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 to an Application 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.

16When decisions are made by the Tribunal, it is important that they be seen as final. Reconsideration is a discretionary remedy exercised by the Tribunal in the limited circumstances set out in Rule 25.5. It is only where these circumstances exist that the Tribunal will reconsider its decision.

17The applicant has failed to meet the criteria set out in Rule 25.5. The applicant is attempting to re-argue his case. As stated in the Tribunal’s Practice Direction 4, “Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case”. It is on this basis that applicant’s Request for Reconsideration is dismissed.