Nolan v. Vale Inco, 2010 HRTO 2427

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Nolan

Applicant

-and-

Vale Inco Limited (CVRD Inco Ltd.)

Respondent

AND B E T W E E N:

Paul Nolan

Applicant

-and-

United Steelworkers Local 6500, John Fera and Patrick Veinot

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Sheehan

Date: December 7, 2010

Citation: 2010 HRTO 2427

Indexed as: Nolan v. Vale Inco

1The applicant filed a Request for Reconsideration of Tribunal Decision 2010 HRTO 1758 pursuant to section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”).

2Rule 25.5 provides that 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.

3The Practice Direction on Reconsideration issued by the Tribunal suggests the following regarding the Tribunal’s power to grant reconsideration:

(1) Decisions of the Tribunal are generally considered final and are not subject to appeal.

(2) Reconsideration is a discretionary remedy and there is no right to have a decision reconsidered by the Tribunal.

(3) 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.

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

4The applicant based his reconsideration request on Rule 25.5 (c) and (d).

5Reconsideration does not exist as a vehicle for a party to reassert positions previously argued or advance arguments that could have been previously submitted. Furthermore, a Request for Reconsideration is not a right of appeal. As outlined in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, 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 the satisfaction of the specific language of Rule 25.5.

6At its core the applicant’s Request is an attempt to appeal the Tribunal’s decision. That the applicant is of the view that the Tribunal erred in applying the pertinent jurisprudence to the facts of the case is not relevant in itself, with respect to a Request for Reconsideration. For the Tribunal to grant a Request for Reconsideration the specific language of Rule 25.5 has to be satisfied. Further to this point, upon reviewing the various arguments outlined in the applicant’s Request all fall well short of establishing that the Tribunal decision was in conflict with the established jurisprudence of the Tribunal or its procedure. Additionally, it is noted there is no basis to suggest that the Reconsideration of this matter constitutes a matter of general or public importance as contemplated under Rule 25.5(c).

7While it is not necessary to review in detail all the arguments raised by the applicant, in my view, it is appropriate to address a couple of those arguments. It is suggested the Tribunal erred in viewing the Settlement and Release executed by the applicant on October 18, 2006 as being applicable to events that transpired after that date. All the matters referred to by the applicant subsequent to the execution of the Settlement and Release were inexorably connected to the assertion that there was a breach of the Settlement and Release by the respondents. As suggested in the Tribunal Decision the appropriate forum for any issue associated with a claim that there was a purported breach of the Settlement and Release was before Arbitrator Simmons. Moreover, it would have been be an abuse of process, in the circumstances, for this Tribunal to allow the applicant to seek to resile from the Settlement and Release agreement and endeavour to revive the litigation of any issue associated with his termination.

8The Request for Reconsideration also asserts that the Application was dismissed without providing the applicant “a meaningful opportunity to be heard by adducing documentary evidence and providing viva voca (sic) evidence under oath and to challenge explanations provided by the respondents.”

9It is important that the Tribunal correct certain factual misrepresentations and omissions associated with that assertion. The hearing commenced on January 13, 2010 in Sudbury. After certain preliminary matters were dispensed with, the parties were respectively canvased, though their counsel, whether they sought to call viva voce evidence in support of their respective positions. All parties, including the applicant, deemed it not necessary to call viva voce evidence. During the proceeding, however, the parties, including the applicant, submitted into evidence documents to factually buttress their submissions.

10The submissions of the respondents regarding their motions were completed prior to the scheduled ending time of the hearing that day. At that time counsel for the applicant, Mr. Hassell, requested on the applicant’s behalf, that the commencement of submissions in response be held over to another day. The Tribunal acceded to that request.

11The hearing reconvened on April 28, 2010. At the scheduled 9:30 am start of hearing Mr. Hassell advised the Tribunal that the applicant had been involved in a minor motor vehicle accident. Accordingly, the commencement of the hearing was delayed until 10:30 am. At that time, given that the applicant had been present for the entire submissions of the respondent in January and had the opportunity to discuss those submissions fully with Mr. Hassell it was suggested that it would be appropriate for Mr. Hassell to commence providing his submissions. The Tribunal then purposively took an early and extended lunch break, prior to the close of Mr. Hassell’s submissions. The applicant was present when Mr. Hassell continued with his submissions after the lunch break. Moreover, subsequent to the completion of the reply submissions of the respondents Mr. Hassel was afforded the opportunity to make further submissions on the issues in dispute; and he took advantage of that opportunity. Accordingly there is no merit to the applicant's claim that he was denied a meaningful opportunity to be heard.

11For all these reasons, the Request for Reconsideration is dismissed.