Human Rights Tribunal of Ontario
Between:
Theresa McNally Applicant
-and-
OPSEU Pension Trust, Sandra Cober and Jessica Chow Respondents
Reconsideration Decision
Adjudicator: Brian Sheehan Date: December 20, 2010 Citation: 2010 HRTO 2503 Indexed as: McNally v. OPSEU Pension Trust
1The applicant filed a Request for Reconsideration of Tribunal Decision 2010 HRTO 1929 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 the reconsideration request on Rule 25.5(c). Reconsideration does not exist as a vehicle for a party to reassert positions previously argued or advance arguments that could have been previously submitted. This Request for Reconsideration is primarily a reiteration, albeit in an expanded form, of previously enunciated positions.
5As to the expanded nature of the applicant's submissions, the Request for Reconsideration delves into the relationship between the applicant's potential entitlement to Long Term Income Protection Plan ("LTIP") benefits and the employer's obligation to pay pension contributions on the behalf of those entitled to such benefits pursuant to section 7.3 of the LTIP. While that issue was not extensively explored by the applicant at the hearing in this matter, even if it had been raised, it is difficult to appreciate its relevancy to the applicant's assertion that there was a breach of the Code since she was not entitled to purchase pension credits as a full-time employee subsequent to the change in her status to that of a part-time employee.
6It is further noted that 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.
7That 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 that there is no basis to suggest that reconsideration of this matter constitutes a matter of general or public importance as contemplated under Rule 25.5(c).
8Accordingly, the Request for Reconsideration is dismissed.
Dated at Toronto this 20th day of December, 2010
"signed by"______
Brian Sheehan
Member