HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Arthur Andersen
Applicant
-and-
Wheel Chair Accessible Transit Inc.
Respondent
RECONSIDERATION DECISION
Adjudicator: Alison Renton
Indexed as: Andersen v. Wheel Chair Accessible Transit
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 6, 2010 alleging discrimination in employment on the basis of age when his employment was terminated in February 2009.
2The Application was dismissed in a Decision issued by the Tribunal dated April 5, 2011 (2011 HRTO 649) when the applicant failed to participate in the conference call hearing that was scheduled for March 28, 2011 further to a Confirmation of Rescheduled Hearing Notice dated January 24, 2011.
3The applicant filed a Request for Reconsideration on May 2, 2011.
4A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondent.
5The applicant submits that reconsideration is warranted in this case because there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.
6This is the Tribunal’s Decision on the Request for Reconsideration.
Request for Reconsideration
7Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions:
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.
8Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration, 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).
9Most relevant to this Decision is Rule 26 which reads, in part, as follows:
26.1 Any part 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 and orders.
10The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Decisions of the Tribunal are generally considered final and 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.
11As 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.
12The applicant has based his request on Rule 26.5(a). He submits that he is not just fighting for his rights, but believes that he is “representing thousands of Canadians looking for justice under the protection of the HRTO”. He submits that his case “…has reached a fork in the road of justice” with his position that he was dismissed because he was too old for the job on the one side compared with the respondent’s position that he was dismissed because he failed to report an accident. He disputes that he failed to report an accident, claims it is a false accusation, and attached to his Request an accident report that he had previously provided to the respondent.
13Although the applicant based his request on Rule 26.5(a) and indicated that there were new facts or evidence, he has made no submissions that bear on this factor or, indeed, on any of the criteria outlined in either Rule 26 or the Practice Direction on Reconsideration. The thrust of his submissions merely reiterate positions he advanced earlier in the process, and documentation that he had previously provided to the Tribunal. It is evident that the applicant disagrees with the Tribunal’s Decision, however he has presented no basis to reconsider the Decision.
14The Request is denied.
Dated at Toronto, this 10th day of June, 2011.
“signed by”
Alison Renton
Vice-chair