Humphries v. General Electric of Canada, 2011 HRTO 1765

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Humphries

Applicant

-and-

General Electric of Canada Inc., Bill Bergeron, Mark Hurst,

Mike Johnson and Vicki Goulah

Respondents

RECONSIDERATION DECISION

Adjudicator: Alison Renton

Date: September 27, 2011

Citation: 2011 HRTO 1765

Indexed as: Humphries v. General Electric of Canada

1On September 9, 2011, the applicant filed a Request for Reconsideration (“Request”) of the Tribunal’s Decision dated August 10, 2011 (“the Decision”) which dismissed the Application that had been filed on June 29, 2009 under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”). The Application was dismissed because the Tribunal found that the applicant’s delay in filing her Application was not made in good faith, as required by section 34(2) of the Code. Further, the Tribunal stated that it would also dismiss that part of the Application pertaining to the applicant’s termination, pursuant to section 45.1 of the Code, as the termination allegations were appropriately addressed in an arbitration decision.

2Of the Rule 26.5 criteria listed on the Request for Reconsideration form, the applicant relies upon d) “Other factors exist that outweigh the public interest in the finality of Tribunal decisions”.

3In support of these grounds, the applicant submits that the respondents knew or should have known about her physical and mental disability because they witnessed it first hand and that the allegations against them constitute a “series of incidents”. The arbitrator did not consider the applicant’s medical documentation in the arbitration, although the applicant provided it to her union prior to the arbitration hearing. The applicant sets out some details about employment she had prior to working for the corporate respondent.

4The applicant asserts that her husband accompanied her when she collected for the Heart and Stroke Foundation, and that he assisted her in preparing her Application and her Request. Working on the Application was “emotionally very painful” for her, the applicant states, and it would sometimes take her days to get herself back to working on it. She asserts that as “the deadline loomed closer”, she found that she could only work on the Application with her husband sitting with her and going through the steps of documenting and recording as she would easily “get lost” in the paperwork until she could not do it anymore. She applied for positions and attended a job fair at the suggestion of her rehabilitation counsellor.

5The applicant’s physicians, the applicant submits, have the expertise to diagnose her, which they did in the medical documentation that she submitted to the Tribunal, and the side-effects of head trauma are discussed in the article “Neuropsychological Sequelae of Minor Head Trauma” that she filed with the Tribunal. The applicant states that her depression and effects of her head injury made it very difficult for her to explain things in a logical and clear fashion, and that reviewing all the incidents of alleged discrimination was “emotionally taxing” and resurrected all her original emotions that she felt at the time that they happened.

6Talking to Dr. Morni about the discrimination she felt, the applicant says, was a symptom of her depression. The applicant compares that against reading over “hurtful documents” and trying to concentrate and focus on organizing them into a complaint. When she is not faced with deadlines, stressful situations or the infractions, the applicant states that she was able to function “fairly normally”.

7The applicant submits at paras. 12 of her Request:

In view of all things I brought forward, I ask for you to re-consider the medical documentation supporting my disability and allow for the extra time it took me to put my complaint together, and re-consider this complaint based on the overwhelming evidence supplied by medical experts as to the nature of my disability. I ask that you do not reject my legitimate medical evidence. The Respondents should have offered to accommodate me and stop the reprisals.

8A party 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 respondents.

9For the reasons that follow, the Request for Reconsideration is dismissed.

ANALYSIS

10Section 45.7(1) of the Code provides that “[a]ny party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules”. The Rules elaborate on the conditions and requirements of such a request. Rule 26.1 of the Tribunal’s Rules of Procedure states that “[a]ny party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision”.

11Pursuant 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.

12It 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 do 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.

13The Tribunal has stated that 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 set out in Rule 26.5.

14In this case, I find that the applicant is restating or re-arguing positions and evidence that she advanced prior to the Decision being issued, particularly in relation to her assertion that her medical condition contributed to her delay in filing her Application. She is also attempting to repair deficiencies in the presentation of her case in addressing the reasons why she attempted to look for other employment, collected donations on behalf of the Heart and Stroke Foundation, attended a job fair, and the length of time it took for her to complete her Application. That, as the Tribunal’s Practice Direction on Reconsideration states, is not the purpose of reconsideration.

15In the Decision, the Tribunal does not dispute that the applicant has a disability. The medical documentation filed by the applicant before the Decision was issued identifies a number of medical issues. However, the issue in the Decision was not whether the applicant had a disability, but rather whether her disability contributed to filing her Application beyond the mandatory one year limitation period as required by section 34(1) of the Code. In the Decision, and after considering in detail the medical documentation submitted by the applicant, I concluded that the medical documentation provided by the applicant did not demonstrate that her disability was so debilitating as to prevent her from pursuing her legal rights under the Code. (See paras. 44 to 46 of the Decision).

16I do not find that the applicant has established that there are other factors which exist to outweigh the public interest in the finality of Tribunal decisions, as required by Rule 26.5. Accordingly, the Request for Reconsideration is dismissed.