Shirley Vasey v. St. Micheal’s Hospital, Nelson Fryer, and Jo-Anne Copeland, 2011 HRTO 1697

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shirley Vasey

Applicant

-and-

St. Micheal’s Hospital, Nelson Fryer, and Jo-Anne Copeland

Respondents

RECONSIDERATION DECISION

Adjudicator: Judith Hinchman

Date: September 15, 2011

Citation: 2011 HRTO 1697

Indexed as: Vasey v. St. Michael’s Hospital

1This Decision addresses a Request for Reconsideration under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) of the Tribunal’s Decision, 2011 HRTO 1257, dismissing TR-0551-09, an Application against St. Micheal’s Hospital, Nelson Fryer, and Jo-Anne Copeland alleging discrimination on the grounds of disability in employment.

2Rule 25 of the Tribunal’s Rules of Procedure for Transitional Applications provides that any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision. Rule 25.5 provides:

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.

3In her Request, the applicant argues that points a, c, and d above warrant a reconsideration of my Decision.

4On my review of the Request, I am not satisfied that any of the criteria supporting reconsideration of the Decision have been established.

5The applicant does not identify what law she believes was misapplied or omitted in the Decision. I am not persuaded that the Decision is in conflict with established jurisprudence or Tribunal procedure. The applicant has also not identified any new determinative facts or evidence that were not and could not have been obtained earlier.

6For the most part, the applicant argues that she has not received fair treatment, the law was misapplied or completely omitted, and the Decision both does not reflect the facts and is one-sided and biased in favor of the respondents.

7With respect to the findings in the Decision, the applicant submits that I did not credit any of her or her witnesses’ will say statements or testimony. The Decision discusses the applicant’s witnesses’ testimony and will say statements as well as letters written and accepted as evidence and all were considered. The applicant herself testified at length and in fact after she appointed new counsel, she was permitted to continue testifying even though her previous counsel had indicated the applicant’s evidence was concluded.

8The applicant also argues that her expert witness, Dr. Martoglio, was not allowed to appear. The applicant had earlier submitted a will say statement from Dr. Martoglio that the Tribunal was informed he wished to amend. Apparently attempts were made to have that done but thereafter the applicant’s counsel withdrew the statement. Furthermore, time was scheduled for Dr. Martoglio to give evidence by telephone, however the applicant through her counsel also withdrew him as a witness.

9The applicant also argues that respondents’ witnesses Angie Johnson and Carl Phillips did not appear to be cross-examined “as was agreed”. By Case Assessment Direction dated September 15, 2010, I documented a conference call held on that day with the parties and their counsel. On that date the applicant and her counsel directed that the applicant would accept Ms. Johnson’s witness statement once signed as her evidence without requiring her presence for cross-examination. This matter was not raised again during the subsequent Hearing days.

10By Interim Decision 2010 HRTO 2435 dated December 7, 2010, I declined the respondents’ request that Mr. Phillip’s proposed evidence be accepted as unchallenged and thereafter the respondents withdrew Mr. Phillips as a witness. The applicant did not choose to call him as a witness, therefore he did not appear at all, and his earlier proposed will say statement was not entered into evidence.

11The applicant also takes issue with certain dates that have to do with when she was on leave during her employment. On cross-examination the applicant was taken day by day through “pay run” sheets to establish the dates that she worked. The Decision reflects her testimony and those pay run sheets.

12Finally in her Request the applicant recites over several pages other aspects of the findings that she argues are incorrect.

13In making my Decision I considered all the applicant’s evidence and the credibility of her witnesses. The applicant has not raised any new facts. She merely repeats submissions that she already made at the Hearing, which she argues are in conflict with my findings. A request for reconsideration is not an opportunity to restate or re-argue evidence already advanced and considered. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34. 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 limited exceptions.

14The applicant does correctly note that the date of a letter that I quote in the decision is inaccurately noted as May 7, 2004 rather than the correct date May 17, 2004. This is a clerical error and is not material in any way to the findings in the Decision. As well I reproduced the applicant’s handwritten resignation letter in the Decision and have misread and misquoted the word “suppression”, which I mis-read as suspicion. This too is not material to any findings in the Decision.

15Finally in her Request the applicant refers to an eight-year period of hearings and testimonies, arguing that during that time on several ocassions respondents asked that the case be dismissed and each time that request was denied and now it is arbitrarily dismissed. The applicant is confusing the process whereby her initial Complaint was considered at the Ontario Human Rights Commission, after her Complaint was filed in 2004, with the process that began once that Complaint was abandoned and her Application to the Tribunal was filed in 2009 and the Hearing began in April 2010. My reasons for dismissing her Application following the Hearing are explained in the Decision.

16Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. The issues raised by the applicant challenging the merits of my Decision are not compelling or extraordinary. They do not raise issues of general importance nor outweigh the public interest in the finality of Tribunal decisions. The applicant has not cited any established case law or Tribunal procedure that the Decision conflicts with. The applicant’s disagreement with the conclusions that I drew from the evidence is not a basis for reconsideration.

17The Request does not satisfy the requirements of Rule 25.5. The Request for Reconsideration is denied.