Claudio Marchetti v. Desjardins Credit Union, 2010 HRTO 219

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Claudio Marchetti

Applicant

-and-

Desjardins Credit Union, Angela Adam, Colleen Baxter, Alfred Pfeiffer and Jacques Luys

Respondents

RECONSIDERATION DECISION

Adjudicator: Janice Sandomirsky

Date: January 29, 2010

Citation: 2010 HRTO 219

Indexed as: Marchetti v. Desjardins Credit Union

INTRODUCTION

1The applicant filed an Application under section 53(3) of the Human Rights Code, R.S.O. c. H. 19 as amended (the "Code") on December 2, 2008. A Case Resolution Conference was held on September 3, 2009, and a Decision released on October 14, 2009, 2009 HRTO 1677 dismissing the applicant's claim that his disability was a factor in the corporate respondent's decision to terminate his employment.

2On November 10, 2009, the applicant filed a Request for Reconsideration of the Tribunal's decision under section 45.7 of the Code which provides that:

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.

3The Tribunal has issued rules governing reconsideration requests. Rule 25 of the Transitional Rules provides, in part:

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;

(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.

4The Tribunal's Practice Direction on Reconsideration highlights the discretionary nature of the Tribunal's reconsideration authority. The Tribunal will only reconsider a decision where it finds there are compelling and extraordinary circumstances for doing so and where those circumstances outweigh the public interest in finality of the decision. The Practice Direction further notes that:

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

5In this case, the applicant filed a Request for Reconsideration on the basis that the decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. In support of the request, the applicant referenced the respondents' failure to file a Form TR-5 in response to his Request for an Order during Proceedings and serve it in accordance with the Rules of Procedure for Transitional Applications under section 53(3). The applicant also attached a copy of the decision in Lane v. ADGA Group Consultants Inc, 2007 HRTO 34 in support of his Request for Reconsideration.

6Section 53(3) applications are processed according to the Rules of Procedure for Transitional Applications. The Tribunal has the authority to relieve against a party's failure to comply with the Rules in a manner that is "fair and just and would not substantially prejudice a party or unduly delay the proceeding" (Rule 3.6). In addition, Rule 4.3 provides that the Tribunal may vary or waive the application of the rules at any time to ensure the "fair, just and highly expeditious resolution of an Application under section 53(3)."

7On the basis of the information provided, I am satisfied that the failure to file a Response to a Request for Order during Proceedings in a s. 53(3) application does not constitute a basis for reconsideration of the decision. The procedural matters were raised by the applicant during the course of the hearing and dealt with in a manner that was entirely consistent with the discretionary power of the Tribunal under Rule 4 to provide for a fair, just and expeditious resolution of an application.

8Reviewing the Lane decision, I am satisfied that there is no conflict with established jurisprudence. In Lane, as in the other cases the applicant referred to in his submissions at the hearing, the employer was aware of the claimant's health problem prior to the termination and that those problems affected the job performance. In this case, it was concluded that the employer was completely unaware of the applicant's medical difficulties prior to making the decision to replace him and, therefore, his disability was not a factor in the termination decision.

9Reconsideration is not an opportunity for a party to reargue the case, nor is it available simply because a party disagrees with the decision. As noted in the Tribunal's Practice Direction quoted above, reconsideration is a discretionary remedy and the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances which outweigh the public interest in the finality of orders and decisions.

10After reviewing the applicant's request for reconsideration, I find that he has not satisfied the criteria described in Rule 25 for granting a Request for Reconsideration.

11For these reasons the Request for Reconsideration is dismissed.