Marilyn Walkinshaw v. Complex Services Inc., 2011 HRTO 2238

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marilyn Walkinshaw

Applicant

-and-

Complex Services Inc.

Respondent

RECONSIDERATION decision

Adjudicator: Lorne Slotnick

Date: December 13, 2011

Citation: 2011 HRTO 2238

Indexed as: Walkinshaw v. Complex Services

1This Decision addresses a Request for Reconsideration of the Tribunal’s Decision (2011 HRTO 1977) dismissing the Application. The applicant states that the decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

2The Request for Reconsideration is dated November 30, 2011. Under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The 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, last amended March 2010).

3The 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.

4As 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.

5In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. 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.

6The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules 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.

7In my view, there are no findings made in the Decision that are in conflict with established jurisprudence, within the meaning of Rule 26.5(c). The Tribunal also stated in Sigrist and Carson, supra that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that her submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

8The applicant’s request does not cite any Tribunal case law or procedure that conflicts with the Decision. The request appears to rest on the view that the Tribunal ought to have drawn different conclusions from the evidence than it did. As indicated above, a request for reconsideration is not an opportunity to restate or re-argue evidence already advanced and considered.

9Accordingly, I find the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration. The Request does not satisfy the requirements of Rule 26.5.

10The Request for reconsideration is denied.