King v. Toronto District School Board, 2011 HRTO 382

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andre King

Applicant

-and-

Toronto District School Board

Respondent

RECONSIDERATION DECISION

Adjudicator: Ena Chadha

Date: February 22, 2011

Citation: 2011 HRTO 382

Indexed as: King v. Toronto District School Board

INTRODUCTION

1The applicant filed an Application with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination and reprisal with respect to employment on the basis of race, colour and ancestry.

2On September 28, 2010, the Tribunal issued a Decision, 2010 HRTO 1984, dismissing this Application. On February 11, 2011, the applicant filed a Request for Reconsideration asking the Tribunal to reconsider its Decision because there were new facts or evidence that potentially could be determinative of the case that could not reasonably have been obtained earlier.

3This Decision deals with the applicant’s Request for Reconsideration.

BACKGROUND

4The Application was filed on June 22, 2010. The allegations in the Application concern the termination of the applicant’s employment in 2003.

5The Tribunal’s Decision found that the Application was barred under section 34(1) as having been filed outside of the Code’s one year limitation period. The Decision noted that, although the Application indicated that the applicant’s employment was terminated in 2003, Question 7 of the Application stated the date of the last discriminatory incident as May 13, 2010. The applicant’s materials did not refer to the May 13, 2010 date and did not indicate why the applicant believed the 2003 termination was related to the May 13, 2010 date.

6The Decision concluded that the substance of the Application related to the applicant’s experiences while employed with the respondent prior to 2003. The Decision further held that the applicant had not provided a reasonable explanation for the delay that led to the conclusion that the delay was incurred in good faith and, as such, the Application could not proceed.

THE REQUEST FOR RECONSIDERATION

7Along with his Request for Reconsideration, the applicant submitted a copy of notes from a Grievance Meeting from September 24, 2003 involving the applicant’s grievance of his pay suspension and dismissal. The applicant also provided a copy of an email, dated January 11, 2011, from his union indicating that union would not support a judicial review of the Arbitration decision.

8In his Request for Reconsideration, the applicant submits that he did not earlier pursue human rights recourse because he attempted to resolve the issues with the assistance of his union. He states that “[a]s the years went by, I lost faith in the way the union was representing me…Finally, I decided to contact [the Tribunal], seven years later, thus the delay.” The applicant submits that he did not realize that he should have contacted the Tribunal while he was being represented by his union.

RELEVANT LEGISLATIVE PROVISIONS

9Section 45.7 of the Code provides the Tribunal with authority to reconsider its decisions. Further to its power to make rules, the Tribunal has issued Rules governing Requests for Reconsideration. Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision [emphasis added]

10Rule 26.5 provides that 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;

(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;

(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 and orders.

11The Tribunal has also issued a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). The Tribunal’s Practice Direction on Reconsideration states, in part, the following with respect to the Tribunal’s power to grant reconsideration:

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.

DECISION

12I find that the applicant has provided no explanation or information as to why this request for reconsideration was made beyond the timeline stipulated in Rule 26. The applicant was required to file his reconsideration within 30 days of the Tribunal’s September 28, 2010 Decision; however, the applicant did not submit his request for reconsideration until February 11, 2011, at which point the deadline for application for reconsideration had long elapsed. On this basis alone, the Tribunal may deny the Request for Reconsideration. See der von Felix v. International Financial Data Services (Canada), 2010 HRTO 362.

13I find that even if the Request had been made in a timely manner, the grounds for seeking reconsideration do no meet the Rule 26 factors as set out above. The applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration. First, it is not sufficient basis for reconsideration that the applicant was unaware of his rights. The Tribunal has stated that although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights. See Stewart v. Mitten Vinyl, 2010 HRTO 1628.

14The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. Lastly, I am not convinced that any findings made in the Decision are in conflict with established jurisprudence or Tribunal procedures.

15In sum, I find that the applicant failed to file his Request for reconsideration in a timely manner and has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. Accordingly, the Request for Reconsideration is denied.