Macyshyn v. Leson’s Funeral Home, 2010 HRTO 2311

Human Rights Tribunal of Ontario

B E T W E E N:

Zenon Macyshyn

Applicant

-and-

Leson’s Funeral Home

Respondent

reconsideration DECISION

Adjudicator: Michelle Flaherty

Date: November 19, 2010

Citation: 2010 HRTO 2311

Indexed as: Macyshyn v. Leson’s Funeral Home

1This Application was filed on March 24, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination on the basis of citizenship, ethnic origin, and marital status in the provision of goods, services or facilities.

2The Application identifies the date of the last alleged event as March 20, 2007, more than one year before the filing of the Application.

3On May 17, 2010, the Tribunal administratively issued a Notice of Intent to Dismiss (“Notice”), indicating that the Application appears to be outside the Tribunal’s power to decide (jurisdiction).

4The Tribunal directed the applicant to provide written submissions regarding the timeliness issue and advised him that, should he fail to file submissions as directed, the Tribunal might deem him to have abandoned the Application and might dismiss it on that basis.

5The applicant failed to respond to the Notice. In a Decision dated July 28, 2010, the Application was dismissed as abandoned: 2010 HRTO 1614.

6On October 31, 2010, the applicant filed a Request for Reconsideration (“Request”).

7The applicant has raised a number of objections to the Decision. In the Request, he checked the boxes identifying the following factors: (a) he was entitled to notice but, through no fault of his own, he did not receive notice of the proceeding or a hearing; (b) conflict with established case law; and (c) other factors that outweigh the public interest in the finality of the Tribunal’s decisions.

8The applicant’s submissions in support of the Request are as follows:

The letter of Decision of the Tribunal dated July 28, 2010 did not give me options as what my next steps can follow such as filing the Form 20 and the Form 23.

DECISION

9Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request that it reconsider its decision. Pursuant to Rule 26.5, a party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision. 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.

10It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which 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.

11Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

12The Request for Reconsideration was received well after the 30 day time limit provided in the Rules. The applicant argued that the Tribunal should consider the Request notwithstanding the delay because the letter accompanying the Decision did not set out the steps or the timeframe for filing a Request for Reconsideration. The applicant states that, had he known about this option, he would have filed within the allowed timeframe.

13I am not satisfied that this is a valid reason for filing the Request approximately three months after receiving the Decision. The Code and Tribunal’s Rules set out the process and the timeframe for seeking reconsideration of a Decision. The applicant could have taken steps to determine what options were available to him.

14The Request for reconsideration is untimely and is denied.

15In any event, the applicant has not offered any basis for the Tribunal to reconsider its Decision. The applicant’s arguments concerning notice do not apply to Tribunal’s Decision or Interim Decision, which he has received. Rather, he seems to be arguing that, along with the Decision, he ought to have been given notice of the opportunity to seek a reconsideration. This type of notice is not contemplated in the Rules as a basis for reconsideration. In any event, as I have indicated, the Tribunal’s procedures are set out in the Rules. I am not satisfied that the applicant could not have informed himself of the options available to him or that his failure to do so is sufficient basis to reconsider the Decision.

16The applicant has indicated that his Request is also based on: (a) the fact that the Decision is in conflict with established case law; and (b) other factors that outweigh the public interest in the finality of the Tribunal’s decisions.

17The applicant has not made any submissions as to either of these issues and, based on the materials filed, I cannot conclude that either forms a basis for me to reconsider the Decision.

18The Request for Reconsideration is denied.