Adriana Fratiloiu v. Quality Safety Systems and Brad Hedderson, 2011 HRTO 360

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adriana Fratiloiu Applicant

-and-

Quality Safety Systems and Brad Hedderson Respondents

RECONSIDERATION DECISION

Adjudicator: Naomi Overend Date: February 18, 2011 Citation: 2011 HRTO 360 Indexed as: Fratiloiu v. Quality Safety Systems

1On November 30, 2010, the Tribunal issued a Decision in which it dismissed the Application because it had not been filed in a timely manner and the delay was found not to have been incurred in good faith: 2010 HRTO 2380. On December 29, 2010, the applicant filed a Request for Reconsideration of that Decision and submissions in support of her Request.

2A 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 respondents.

BACKGROUND

3The applicant filed her Application on April 28, 2010, alleging reprisal and discrimination in employment on the basis of association contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The allegations concern events culminating in the termination of the applicant's employment on December 19, 2004, when a decision was made not to hire her on a permanent basis.

4A Notice of Intent to Dismiss ("NOID") was issued on October 13, 2010, indicating that the Application appears to be outside the Tribunal's jurisdiction because it was filed more than one year after the last incident of alleged discrimination. The applicant filed written submissions on the NOID on October 15 and 18, 2010.

5The applicant argued in her written submissions that her case could not be separated from her husband's case, and that he had more recently experienced discrimination on the basis of his creed at the hands of the respondents. She indicated that the grounds of her claim of discrimination on the basis of association "became very clear once my husband's case was proven." I would note, parenthetically, that at this point, her husband's Application contains allegations, not proven facts.

6The applicant also submitted that, at the time the respondent company did not hire her permanently, she could not know the real reasons for its decision, but that the reasons became clear when the "punishment" against her husband started.

7Following receipt of the written submissions from the applicant, the Tribunal dismissed the Application on the basis of delay. In the Decision I found that the applicant had failed to provide a good faith reason for the 64-month delay between the incident and the filing of her Application.

8The applicant seeks reconsideration of the decision to dismiss her Application. She argues that I misconstrued her allegations and arguments in my Decision dated November 30, 2010. This is the Tribunal's decision on the Request for Reconsideration.

REQUEST FOR RECONSIDERATION

9Section 45.7 of the Human Rights Code, R.S.O. 1990 c. H.19, as amended ("Code") allows any party to a proceeding before the Tribunal to 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.

10It 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 so and where these circumstances outweigh the public interest in finality of orders and decisions.

11In her Request the applicant checked the box indicating that the reason for her Request is that the decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter or general or public importance.

12A Request for Reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. In her Request, the applicant makes no relevant submissions that bear on the identified ground for reconsideration or, indeed, on any of the criteria outlined in either Rule 26 or the Practice Direction on Reconsideration. In her submissions on reconsideration, she makes reference to arguments that she states were advanced in her Application and submissions on the NOID.

13The applicant also asserts that I made two mistakes in my decision: (1) I assert that her "ground of discrimination was reprisal;" and (2) subsequently state that she had obtained employment. In the original version of the Form 1 submitted by the applicant, she selected the ground of "reprisal" in answer to question 5 on the grounds. I do note in the decision that it would appear that the actual intended ground was "creed".

14In her Form 1A, in answer to question A6 "Are you working now?" the applicant selected "yes." The Tribunal is dependent on the information provided by the parties in their pleadings, and assumes, unless there is good reason to believe otherwise, that the information is accurate. In any event, little turns on this information, and it is not necessary to comment further on these submissions.

15The thrust of the applicant's submissions merely reiterate arguments made earlier in the process. While it is evident that the applicant disagrees with the Tribunal's finding, she has presented no basis to reconsider my decision.

16The Request for Reconsideration is denied.