John Gilinsky v. Peel District School Board, 2011 HRTO 2309

Human Rights Tribunal of Ontario

B E T W E E N:

John Gilinsky Applicant

-and-

Peel District School Board Respondent

RECONSIDERATION DECISION

Adjudicator: Michelle Flaherty Date: December 23, 2011 Citation: 2011 HRTO 2309 Indexed as: Gilinsky v. Peel District School Board

1The applicant filed an Application with the Tribunal alleging discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in employment on the basis of citizenship, ethnic origin, disability, sex, sexual orientation, marital status, and association with a person identified by a prohibited ground. He also alleges reprisal or threat of reprisal.

2On November 8, 2011, the Tribunal issued a Decision dismissing the Application pursuant to section 45.1 of the Code: 2011 HRTO 2024. The Tribunal held that the substance of the Application has been appropriately dealt with in a grievance proceeding.

3On December 8, 2011, the applicant filed a Request for Reconsideration, (“Request”) and submissions in support of the Request. A respondent 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 respondent or the affected party.

4For the reasons that follow, the Request is dismissed. The applicant has presented no basis to reconsider the Tribunal’s Decision.

ANALYSIS

5Pursuant to section 45.7 of the Code, any party to a proceeding before the Tribunal may request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant 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.

6Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In this regard, it is helpful 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 so and where these circumstances outweigh the public interest in finality of orders and decisions.

7In his Request, the applicant indicates that the Decision ought to be reconsidered because it is in conflict with established case law or Tribunal procedure and because other factors exist that outweigh the public interest in the finality of the Tribunal’s decisions.

8In support of his Request, the applicant argues that the Tribunal’s Decision is in conflict with natural justice, his fundamental justice rights and with section 7 of the Charter of Rights and Freedoms. In this regard, the applicant appears to be arguing a general need for fairness in the Tribunal’s hearing process. He also argues that, in rendering its Decision, the Tribunal ignored his oral submissions. In his submissions in support of the Request, the applicant restates many of the arguments he made or could have made during the hearing. In particular, he argues that he had no standing in the grievance proceeding and that the arbitrator’s decision does not address human rights principles. He states that I improperly deferred to the grievance arbitrator because, in the circumstances, the grievance proceeding was biased, it included consideration of evidence improperly obtained, the applicant was not appropriately represented before the grievance arbitrator, and there are some factual differences between the grievance and the Application.

9While it is evident that the applicant disagrees with the Decision, he has presented no basis to reconsider it. The applicant’s arguments do not fall within Rule 26.5 as a basis for reconsideration. There is no basis to conclude that the Decision is in conflict with established Tribunal jurisprudence; and the applicant does not provide any reasons to establish that the proposed reconsideration involves matters of general or public importance.

10In support of his Request, the applicant cites Bettencourt v. Peel District School Board, 2010 HRTO 1644, an Interim Decision, where the Tribunal declined to defer consideration of an application pending the determination of a duty of fair representation complaint filed with the Ontario Labour Relations Board (“OLRB”). In Bettencourt, the Tribunal held that the legal issues raised in the application (allegations of discriminatoin against the employer) were different from those raised in the OLRB matter (allegations that the Union had failed to fairly represent the applicant.) The two matters also involved different parties.

11This case is factually different from Bettencourt. Here, the two proceedings at issue (a grievance and the Application) involve the same parties and relate to the same issue, the applicant’s removal from the workplace. The fact that the Tribunal reached different conclusions in different factual contexts does not amount to a conflict with Tribunal jurisprudence.

12Finally, the applicant has also not cited any factor or circumstance that outweighs the public interest in the finality of Tribunal decisions and orders. While the applicant’s submissions make passing reference to s.7 of the Charter of Rights and Freedoms and the need for fairness in the Tribunal’s hearing process, I am satisfied the applicant was able to fully articulate his position on the respondent’s request to dismiss under s.45.1 of the Code, that I understood his position, that the Decision fairly reflects the submissions received and that the hearing was conducted in a fair, just and expeditious manner. The applicant’s objections to the Decision essentially reiterate arguments he has already made and which were addressed in the Decision.

13The Request for Reconsideration is denied.