Radomir Krajisnik v. Linamar Corp./Traxle Manufacturing, 2011 HRTO 460

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Radomir Krajisnik

Applicant

-and-

Linamar Corp./Traxle Manufacturing

Respondent

RECONSIDERATION DECISION

Adjudicator: Eric Whist

Date: March 4, 2011

Citation: 2011 HRTO 460

Indexed as: Krajisnik v. Linamar

1This is a Request for a Reconsideration filed by the applicant, in respect of a Decision dated January 20, 2011, 2011 HRTO 143 dismissing the Application in this matter. The Application was dismissed on the basis that the applicant had failed to file it within the required one year time limit set out in the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) and had failed to show that the delay in the filing of the Application was incurred in good faith.

2The Request for Reconsideration (the “Request”) is based on the contention that the applicant does have a reasonable explanation for the delay in the filing of his Application that establishes that the delay was incurred in good faith. The applicant contends that the delay was incurred because he did not learn of his rights to file an Application under the Code until 2009. To support this claim the applicant provides with his Request witness statements from five persons stating that they were with the applicant in 2009 when the applicant first learned of the Tribunal, its processes and how to file an Application.

3The applicant also provides with his Request a narrative account of his experiences working with the respondent from 1999 to 2002. The applicant also provides an assortment of other, mostly medical, documents about his work and his work related injuries. Most of this material was disclosed prior to the hearing or provided a summary of documents or information that were disclosed prior to the hearing. These materials do not constitute new evidence and do not relate to the applicant’s argument for reconsideration, that he was unaware of his rights under the Code until 2009.

4Under section 45.7 of 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 of Procedure. The most relevant Tribunal Rule in this case is Rule 26 which reads, in part, as follows:

26.5 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 and orders.

5The Tribunal has issued a Practice Direction on Reconsideration (Practice Direction) to provide guidance on how the Tribunal exercises its reconsideration powers. The Practice Direction states, in part, that:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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

6Having reviewed my Decision and the materials before me, I am not satisfied that the applicant has met the requirements for Reconsideration as set out in the Tribunal’s Rules. In particular, I do not find that the applicant has provided new facts that are determinative or that my Decision is in conflict with established jurisprudence.

ANALYSIS

7The applicant asks me to consider additional evidence in support of his claim he did not know of his Code rights until 2009 and that this excuses his delay in commencing his Application. None of this information was unavailable at the time of the hearing. Nor is it potentially determinative of the issue. As I explained in my Decision, the Tribunal’s established case law makes clear that it is not sufficient for an applicant to simply state that he was ignorant of his rights under the Code in order to establish that the delay in pursuing of his rights was incurred in good faith. See Lutz v. Toronto (City), 2009 HRTO 1137.

8The applicant was involved in multiple legal processes related to his employment with the respondent and had the benefit of legal counsel. While the witness statement provided by the applicant’s daughter suggests that the applicant was never informed of his Code rights during these legal processes and that the applicant’s lack of facility in English further hampered his ability to learn about his Code rights, I do not find that this information justifies reconsideration of the Decision. This information is not new but was available at the time of the hearing. In any event, even if language was some impediment to the applicant’s ability to fully participate in past legal processes, I am satisfied that he was manifestly able to pursue his legal rights as evidenced by his multiple WSIB and WSIAT claims. Even if lawyers involved in these specific legal processes did not explicitly inform the applicant of other rights he may have had under the Code I am not satisfied that this means the applicant could not have made enquiries and learned of these rights in a timely manner.

9As I have not been satisfied that the applicant has met any of the requirements set out in Rule 26 of the Tribunal’s Rules, particularly 26.5 (a) and (c) his Request for Reconsideration is denied