Woodbeck v. Thunder Bay (City), 2011 HRTO 1010

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harold Bruce Woodbeck

Applicant

-and-

The City of Thunder Bay

Respondent

a n d B E T W E E N:

Harold Bruce Woodbeck

Applicant

-and-

CUPE Local 87

Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: May 27, 2011

Citation: 2011 HRTO 1010

Indexed as: Woodbeck v. Thunder Bay (City)

WRITTEN SUBMISSIONS BY

Harold Bruce Woodbeck, Applicant ) Self-Represented

1On April 6, 2011, the Tribunal issued an Interim Decision in this Application, 2011 HRTO 666. The Interim Decision dismissed the Application against the City of Thunder Bay and required the applicant to clarify if he intends to pursue the Application against CUPE Local 87. The applicant has asked the Tribunal to reconsider its Interim Decision. In accordance with the Tribunal’s procedures, the respondent has not been invited to make submissions on the Reconsideration Request.

Background

2Section 34 of the Code requires an applicant to file an Application within one year of the incident to which the Application relates or within one year of the last in a series of events. If that time limit is not met, the Tribunal may not deal with the Application unless the Tribunal is satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay.

3The Interim Decision found that the Application against the City of Thunder Bay was not filed within the time limit established by section 34 and that the applicant had not satisfied the Tribunal that the delay was incurred in good faith and that no substantial prejudice would result to the respondents and dismissed the Application.

4The Request for Reconsideration indicates that the applicant believes that the delay was incurred in good faith and that there is new evidence to support this. The Request for Reconsideration also indicates that the Interim Decision unfairly relied on a Decision of the Tribunal that was issued after the Application was filed without giving the applicant a chance to make submissions regarding it.

The Reconsideration Test

5Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

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.

6The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008, amended June 2008). Most relevant to this Decision is Rule 26, which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. 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; 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.

7The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

8As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

9Under Rule 26.1, only “final” decisions qualify for a reconsideration request. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal determined that even an interim decision may be “final” where it disposes of some or all of the central issues in the application. I am satisfied that the Interim Decision in the matter before me disposes of some of the central issues in the Application and, on this basis, the Tribunal’s reconsideration process is available.

The Reconsideration Request

10As noted in the Interim Decision, the applicant was employed by the City of Thunder Bay when he developed medical symptoms in 2005 that he attributed to air quality issues in the building where he worked. In December 2007, the City advised the applicant that his employment would be terminated if he did not report for work in January 2008. The applicant did not report to work with the City and his employment was terminated. In the interim he had started work with another employer. The City informed the other employer that the applicant was not permitted to work on projects involving the City. The applicant was laid off by the new employer in November 2008 on the grounds that there was no work available that did not involve the City.

11The applicant filed an Application with the Tribunal in June 2009, more than one year after his employment was terminated by the City. The Application alleged that his employment had been terminated because of his disability.

12As the applicant notes in the Request for Reconsideration, the Tribunal did not identify the fact that the Application was not filed in time when the Application was first filed. This was identified for the first time during a telephone conference call between the parties and me, scheduled to address various other procedural issues. The parties were invited to make written submissions on the timeliness issue following the conference call and these were received.

13In the Reconsideration Request the applicant suggests that it was unfair or inappropriate for the Tribunal to raise the timeliness issue when the issue was not raised when the Application was filed. If an Application is not filed in accordance with the time lines in section 34(1) and if the exceptions in section 34(2) do not apply, the Tribunal does not have jurisdiction to hear the Application. The Tribunal must always be satisfied that it has jurisdiction to deal with an Application. Although the issue of delay was not identified when the Application was initially filed, I determined it was appropriate to address it at an early stage of the proceedings, as it could affect the scope of the issues to be heard by the Tribunal. There was no unfairness in raising the issue at that stage.

14In his written submissions, the applicant argued that the lay off by the new employer in November 2008 was the last in a series of events for the purpose of section 34 and that the Application was therefore filed in time.

15This argument was rejected in the Interim Decision for the reasons set out in paragraphs 19-21.

16Those reasons included a reference to the Tribunal’s decision in Mafinezam v. University of Toronto, 2010 HRTO 1495. That Decision was issued on July 8, 2010. In the Reconsideration Request, the applicant notes that Mafinezam was issued after he filed his Application with the Tribunal. He suggests that an unfairness resulted because his Application was decided on the basis of a case that was released after he filed his Application.

17While it is true that Mafinezam was released after the applicant filed his Application, it was released before the parties in this case were invited to make submissions on the timeliness issue. Mafinezam in turn referred with approval to a 1984 decision of the Manitoba Court of Appeal.

18Fairness does not require the Tribunal to alert the parties to all decisions of the Tribunal that may be considered in arriving at a decision. The parties are presumed to have an awareness of the Tribunal’s relevant case law. Although I referred to Mafinezam in my Interim Decision, the principles expressed in that decision were not novel. In this case, the applicant was represented by counsel in making his submissions on the timeliness issue. In the circumstances, I see no unfairness in referring to that decision in arriving at my conclusions.

19In the Reconsideration Request, the applicant provides some new information that he submits is relevant to the issue of whether the delay in filing the Application was incurred in good faith.

20First he refers to a proceeding before the Landlord and Tenant Board and provides a copy of a Notice of Hearing before that Board on April 3, 2009, and that lists the applicant as a party. The applicant states that he was busy preparing for this hearing in the period from November 2008 to April 2009.

21The applicant also states that he was experiencing significant health problems in the period from October 2008 to June 2009 and suggests that these contributed to the delay in filing the Application. He states that he required an emergency admission to hospital in June 2009 because of these health problems.

22The Request for Reconsideration does not explain why the applicant did not mention these difficulties in his original submissions on the timeliness issue. The identification of these difficulties now is obviously not new evidence that was not available at the time the applicant made his submissions. Even if it was new evidence, in my view, the fact that the applicant was involved in another legal proceeding does not, in itself, provide a good faith explanation for the applicant’s delay in filing the Application with this Tribunal. An applicant’s health problems will be considered by the Tribunal in relation to a determination of whether a delay was incurred in good faith. However, the Tribunal generally expects such information to be provided in the first instance and not only in a Reconsideration Request. As well, medical confirmation of the problems in normally expected. In this case, the applicant did not raise his health problems as evidence of good faith when he made his submissions on the timeliness issue and has not provided medical confirmation.

23The Reconsideration Request indicates that the applicant developed new symptoms while working for the new employer that he attributes to exposure to printers and copiers in the course of his employment with the new employer. While this might be relevant to the applicant’s claim with the Workplace Safety and Insurance Board, it is not clear how it is relevant to the Request for Reconsideration.

24Having considered the applicant’s Request for Reconsideration, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.