Megan Barker v. Service Employees International Union, Local 1 Ontario, 2010 HRTO 2204

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Megan Barker

Applicant

-and-

Service Employees International Union, Local 1 Ontario

Respondent

RECONSIDERATION DECISION

Adjudicator: Faisal Bhabha

Date: November 3, 2010

Citation: 2010 HRTO 2204

Indexed as: Barker v. Service Employees International Union

BACKGROUND

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 28, 2009, alleging discrimination in employment on the basis of disability. The respondent, the applicant’s former employer, denied the allegations and sought early dismissal of the Application under section 45.1 of the Code. On September 22, 2010, the Tribunal issued an Interim Decision rejecting the respondent’s request, and ruling that the Application could proceed to a hearing on the merits.

2On October 20, 2010, the respondent filed a Form 20 seeking Reconsideration of the Interim Decision.

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. Rule 26.1 provides that, “Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days from the date of the decision” [emphasis added]. 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.

5The respondent relies on Rules 26.5(c) and (d), arguing that the Interim Decision is in conflict with established case law and is of general importance. The respondent also relies on additional factors that counsel argues outweigh the public interest in the finality of Tribunal decisions.

6A decision under section 45.1 is an exercise of the Tribunal’s discretionary procedural power. It is not determinative of the merits of the Application and, importantly, is not a final Decision. In this case, it simply means that the Application may be heard. Therefore, the Interim Decision is not open to Reconsideration.