Alan Winterburn v. General Motors of Canada Limited, 2011 HRTO 1053

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alan Winterburn

Applicant

-and-

General Motors of Canada Limited, General Workers Union – Canada (CAW Canada), and General Workers Union of Canada (CAW Canada) Local 1973

Respondents

RECONSIDERATION DECISION

Adjudicator: Alan G. Smith Date: June 1, 2011 Citation: 2011 HRTO 1053 Indexed as: Winterburn v. General Motors of Canada

WRITTEN SUBMISSIONS BY:

Alan Winterburn, Applicant ) Peter Hrastovec, Counsel

Introduction

1The applicant filed the Application on July 27, 2010, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, alleging discrimination in employment on the grounds of disability, specifically with regard to differential treatment in retirement benefits.

2On March 29, 2011, the Tribunal issued a Decision, 2011 HRTO 618, finding that the Application alleged incidents of discrimination occurred beyond the Code’s one year limitation period and therefore failed to raise matters which the Tribunal has the power to decide. The applicant filed a Request for Reconsideration of that Decision on April 20, 2011.

3In his Request for Reconsideration, the applicant requested the Tribunal reconsider its decision to dismiss for lack of jurisdiction on the following grounds:

a) That the Honourable Tribunal erred in its consideration of the evidence of discoverability and that it applies the proper doctrine of discoverability and accept that the limitation period regarding the pursuit of claims under the Code began to run in November 2009 as proposed by the Applicant;

b) That the Tribunal’s decision to dismiss the application due to the absence of evidence that the delay was incurred in good faith was, on its face, an incorrect decision.

Analysis

4Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it reconsider its decision. The Tribunal Rules elaborate on the conditions and requirements of such a request. 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.

5It 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.

6Since there are no new facts being alleged or issues with regard to notice being raised the applicant appears to base his argument for reconsideration on s. 45.7(c) i.e., that the reasons for the decision to dismiss the Application are in conflict with established jurisprudence and the proposed reconsideration involves a matter of general or public importance.

7In such decisions as Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, LaFortune v. Washington Mills Electro Minerals, 2009 HRTO 1706 , and Burns v. Employer’s Choice Staffing of Canada, 2009 HRTO 1779, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. 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 very limited exceptions.

8When decisions are made by the Tribunal, it is important that they be seen as final. Reconsideration does not provide parties with a “second kick at the can”. It is a discretionary remedy exercised by the Tribunal in the limited circumstances set out in Rule 26.5. It is only where these circumstances exist that the Tribunal will reconsider its decision. For the Tribunal to grant reconsideration, the specific language of Rule 26.5 has to be satisfied. See, for example, Perron v. Conseil Scolaire de Distric Catholique des Aurores Boreales, 2009 HRTO 1945 and Watson v. T. Boudreau Construction, 2010 HRTO 657 .

9The applicant has failed to meet the criteria set out in Rule 26.5. The Request for Reconsideration essentially repeats the arguments made with regard to the doctrine of “discoverability” made in his Reply of February 28, 2011. At its core, the Request for Reconsideration is therefore an attempt by the applicant to re-argue his case and appeal the Tribunal’s decision. Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. Again see, LaFortune, Perron and Watson, supra.

10The applicant’s view that certain aspects of the Tribunal’s legal analysis regarding the “discoverability” principle was in error is not a relevant factor with respect to the reconsideration process. See, Jacob v. Workplace Safety and Insurance Board, 2009 HRTO 1745 . The applicant has not demonstrated that the reasoning in the Decision to dismiss was in any way in conflict with established jurisprudence or procedure pursuant to Tribunal Rule 25.5(c).

11Finally there is no basis to suggest that the Reconsideration of this matter constitutes a matter of general or public importance so as to satisfy the second criteria for reconsideration pursuant to Rule 26.5(c).

Order

12The Request for Reconsideration is dismissed.