Walter Bujalski v. Toronto Transit Commission and Gary Webster, 2011 HRTO 909

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Walter Bujalski

Applicant

-and-

Toronto Transit Commission and Gary Webster

Respondents

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: May 10, 2011

Citation: 2011 HRTO 909

Indexed as: Bujalski v. Toronto Transit Commission

1Walter Bujalski filed an Application pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He alleged that the respondents discriminated against him in receipt of services on the basis of age and disability, contrary to the Code, by taking insufficient steps to ensure that individuals are not pushed off subway platforms in Toronto.

2Following a review of the Application, a Case Assessment Direction (CAD) was issued directing that a summary hearing be held by teleconference. The CAD indicated that the applicant should be prepared to address several questions, specifically whether the Code governs the safety standards of service providers, whether his Application relates to the purpose of the Code in preventing stereotyping, discrimination and inequality, and how he intends to prove, on a balance of probabilities, that any violation of safety standards is discriminatory on the basis of disability or age. The CAD went on to note that the Code does not address general unfairness or how public services are managed, but rather discrimination on prohibited grounds.

3The conference call was held on January 18, 2011. On February 18, 2011, the Tribunal issued a Decision dismissing this Application on the ground that the Application did not have a reasonable prospect of success.

4The applicant filed a Request for Reconsideration on April 18, 2011.

5A 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.

6The applicant argues that reconsideration is warranted in this case because there are new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier.

7This is the Tribunal’s Decision on the Request for Reconsideration.

Request for Reconsideration

8Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions:

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

9Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration, as well as a Practice Direction, to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration).

10Most relevant to this decision is Rule 26 which reads, in part, as follows:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision.

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.

11The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

12As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

13The applicant has based his request on Rule 26.5 (a). He indicates that he “could not find or get (the) Form 20 earlier” and has attached some email correspondence confirming his intention to seek reconsideration of the February 18, 2011 decision. The email correspondence restates the positions and arguments made by him in writing and during the conference call hearing.

14The Request for Reconsideration was received well after the 30 day time limit provided in the Rules. However, given that the earlier emails were sent in advance of the 30 day deadline, I have considered the contents of the Form 20 despite the one month delay in filing it.

15Although the applicant based his request on Rule 26.5(a) and indicated there were new facts or evidence, he has made no submissions that bear on this factor or, indeed, on any of the criteria outlined in either Rule 26 or the Practice Direction on Reconsideration. The thrust of his submissions merely reiterate arguments made in writing earlier in the process and during the conference call hearing. It is evident that the applicant disagrees with the Tribunal’s finding, however he has presented no basis to reconsider the decision.

16The Request is denied.