Lydia Lemieux v. Caroline Rowan, 2011 HRTO 373

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lydia Lemieux

Applicant

-and-

Caroline Rowan

Respondent

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: February 22, 2011

Citation: 2011 HRTO 373

Indexed as: Lemieux v. Rowan

introduction

1On December 23, 2010, the Tribunal issued a Decision dismissing the Application because it was outside the jurisdiction of the Tribunal as it involved adjudicative decisions that were made by the respondent in her capacity as a Vice-chair of the Ontario Labour Relations Board (“OLRB”) exercising her statutory duties, (Lemieux v. Rowan, 2010 HRTO 2534).

2On January 21, 2011, the applicant filed a Request for Reconsideration of that Decision. 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.

3The applicant filed an Application on April 29, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging that she experienced discrimination in respect of employment, on the basis of race, colour and disability, and named a Vice-chair of the OLRB as the respondent.

4The Tribunal issued a Notice of Intent to Dismiss (“NOID”) as it appeared that the Application may be outside the Tribunal’s jurisdiction. The applicant was directed to provide written submissions on the issues raised in the NOID, which she did.

5Her position was that the respondent discriminated against her during an OLRB consultation held with respect to the applicant’s duty of fair representation application against her union, the Ontario Nurses Association, in which the respondent was the adjudicator. The applicant took issue with the respondent’s decision to continue hearing the OLRB application despite a request by the applicant to “put the proceedings on hold” and alleges that the respondent failed to accommodate her disability contrary to the Code. She submitted that the doctrine of judicial immunity did not deprive the Tribunal of the jurisdiction to hear her allegations because the respondent did not follow the rules of natural justice in adjudicating the applicant’s OLRB matter.

6Following consideration of the applicant’s submissions, the Tribunal applied the doctrine of judicial immunity and dismissed the Application as falling outside its jurisdiction as the allegations concerned decisions of an adjudicative nature made by the respondent in her capacity as a Vice-chair of the OLRB and while exercising her statutory duties.

7The applicant seeks reconsideration of the decision to dismiss her Application. This is the Tribunal’s decision on the Request for Reconsideration.

REQUEST FOR RECONSIDERATION

8Section 45.7 of the Human Rights Code, R.S.O. 1990 c. H.19 (“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.

9It 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.

10In her Form 20, the applicant has checked the boxes indicating that the reason for her Request is that the decision is in conflict with established case law or Tribunal procedure and the reconsideration involves a matter of general or public importance and other factors exist that outweigh the public interest in the finality of Tribunal decisions.

11A Request for Reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. The thrust of the applicant’s submissions merely reiterate arguments made earlier in the process and repeat the reasons for her belief that the respondent’s alleged conduct violated her rights under the Code and were contrary to her obligation to remain neutral. It is evident that the applicant disagrees with the Tribunal’s finding. However, she has presented no basis to reconsider the decision.

12The Request for Reconsideration is denied.