Lemieux v. Ontario Nurses’ Association, 2011 HRTO 1652

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yvette Lemieux on behalf of Lydia Lemieux

Applicant

-and-

Ontario Nurses’ Association

Respondent

RECONSIDERATION DECISION

Adjudicator: Sherry Liang

Date: September 6, 2011

Citation: 2011 HRTO 1652

Indexed as: Lemieux v. Ontario Nurses’ Association

1This is an Application filed June 14, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). By decision dated June 22, 2011, 2011 HRTO 1199, I dismissed the Application because of the delay in filing it, and because there is no reasonable prospect that the applicant could succeed in establishing a violation of the Code.

2The applicant has filed a Request for Reconsideration of that decision.

3Section 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.

4Further 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.

5Rule 26 reads, in part, as follows:

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.

6The 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.

7In her Request, the applicant relies on the factors in Rules 26.5(a) and (c).

8In addressing Rule 26.5(a), the applicant refers to recent developments with respect to the claimant’s medical status. She also refers to her own health, and its effect on her ability to complete tasks in a timely manner. These do not provide a basis for reconsideration. With respect to the first factor, the subsequent developments with respect to the claimant’s medical status do not affect the issues addressed in my decision of June 22, 2011, ie. delay and reasonable prospect of success. With respect to the second factor, the applicant’s health, I am not convinced the information referred to could potentially be determinative of the issues dealt with in my decision and in any event there is no reason this information could not have been obtained earlier.

9In addressing Rule 26.5(c), the applicant refers to decisions of the Tribunal regarding the effect of a settlement of a grievance on an application before the Tribunal. I see no inconsistency between those decisions and my decision of June 22, 2011, as my determinations did not relate to that issue. As indicated above, and in the decision, the dismissal of this Application was based on delay as well as my conclusion that there is no reasonable prospect of success.

10In the result the Request for Reconsideration is denied.