HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dorina Grossi
Applicant
-and-
York Lanes Health Centre
Respondent
RECONSIDERATION DECISION
Adjudicator: Douglas Sanderson
Indexed as: Grossi v. York Lanes Health Centre
WRITTEN SUBMISSIONS BY
Dorina Grossi, Applicant ) Self Represented
1On April 15, 2011, the Tribunal issued its Decision in this Application, 2011 HRTO 732, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.
BACKGROUND
2The applicant filed an Application on February 24, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment because of disability. The applicant was diagnosed with a serious illness in late April 2008 and went on sick leave as of May 2008 with the approval of her manager. The applicant states that she updated the respondent regarding her progress after each medical assessment. On January 14, 2010, the applicant informed the respondent she was able to return to work on a part time basis. The respondent informed the applicant that the company was under new management and the applicant no longer had a job with them.
3The Tribunal’s Decision found that applicant did not provide a reasonable explanation for the delay in filing the Application and therefore did not establish that the delay was incurred in good faith. Accordingly, I dismissed the Application.
THE REQUEST FOR RECONSIDERATION
4The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:
The Ministry of Labour case concluded on February 18, 2011, not December 8, 2008, as stated in the decision;
The applicant received legal advice from “HRTO Legal Services” and they discouraged her from applying;
The actual date the applicant’s employment terminated was December 20, 2010 well within the one year reporting time.
DECISION
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.
9I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.
10As indicated above, the applicant relies on Rule 26.5 (a). She submits that the facts set out in paragraph 4, above, call for a different result and, presumably, could not reasonably have been obtained earlier.
11The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. The applicant asserted that she learned she could file an application with the Tribunal in the course of the investigation of her complaint under the Employment Standards Act, 2000. The applicant filed with her Application the “Reasons For Decision” under the Employment Standards Act, 2000 that state that the applicant was entitled to termination pay and vacation pay from the respondent. The document is dated December 8, 2010, leading to the conclusion that the investigation ended on that date. It may be that the Employment Standards matter was not final until February 18, 2011, but this does not change the fact that the applicant was obliged to educate herself regarding her rights in the face of the respondent’s action that occurred on January 14, 2010. Consequently this fact does not provide a reasonable explanation for her delay. Moreover, assuming this fact to be true, she was clearly well aware of it, but chose not to include it in her submissions regarding delay. Consequently, the actual end date of the Employment Standards investigation is neither a new fact or evidence that could potentially be determinative of the case nor one that could not reasonably have been obtained earlier.
12The Tribunal does have a Legal Services group. However, this group provides services to the Tribunal, not to individuals, and it may be that the applicant actually conferred with Human Rights Legal Support Centre, which does advise applicants. Assuming she did in fact speak to someone in the Tribunal’s Legal Services group, she did not assert that Legal Services advised her that her Application was timely or that she could wait until February 24, 2011 to file it. The applicant gave little detail about the advice she received other than to say she was discouraged from applying and does not describe why the advice she received provides a reasonable explanation for her delay. Legal Services may have informed the applicant she was out of time to file an application, for example. Ultimately, the applicant bears the responsibility for filing her application and, in