Lazareva v. York Region (Regional Municipality), 2012 HRTO 1090

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Svetlana Lazareva

Applicant

-and-

The Regional Municipality of York Region,

Janet Vandenberg and Pat Richards

Respondents

RECONSIDERATION DECISION

Adjudicator: Eric Whist

Date: May 31, 2012

Citation: 2012 HRTO 1090

Indexed as: Lazareva v. York Region (Regional Municipality)

WRITTEN SUBMISSIONS

Svetlana Lazareva, Applicant ) Self-represented

The Regional Municipality of York Region, )

Janet Vandenberg, and Pat Richards, ) Wesley Booker, Counsel

Respondents )

1In an Interim Decision dated March 29, 2012, 2012 HRTO 660, (the “Interim Decision”) the Tribunal denied the applicant’s request for certain documents. The applicant has repeated her request for these documents in letters to the Tribunal dated April 2, 2012 and May 9, 2012. The applicant is, in effect, asking the Tribunal to reconsider its Interim Decision. Accordingly, the Tribunal treats the applicant’s April 2 and May 9, 2012 requests as a Request for Reconsideration and, in response, issues this Reconsideration Decision.

BACKGROUND

2The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of ancestry, place of origin, citizenship, ethnic origin and family status.

3On February 29, 2012 the applicant filed a Request for an Order During Proceedings (“RFOP”) requesting documents from the Ontario Nurses Association (the “ONA”) and the Regional Municipality of York Region (the “Region”).

4The applicant’s RFOP included a request that the ONA be ordered to disclose a an ONA report about a previous complaint made by the applicant as well as information about previous complaints and grievances made in relation to positions in the clinic where the applicant was employed.. The ONA filed a Response to the applicant’s RFOP opposing the applicant’s request.

5The applicant’s RFOP included a request that the Region be ordered to disclose certain information related to job competitions the applicant applied for while employed with the Region as well as certain information about the successful candidate in a job competition that the applicant was determined not to be eligible for. The Region filed a Response to the applicant’s RFOP opposing this request.

6In its Interim Decision the Tribunal denied the applicant’s requests for the documents identified in paragraphs 4 and 5. The Interim Decision considers the submissions of the ONA and the Region and refers to the fact that the applicant did not provide submissions with her RFOP to indicate why the documents she was requesting were arguably relevant.

7In a letter to the Tribunal dated April 2, 2012 the applicant again requests that the ONA disclose an ONA report about a previous complaint made by the applicant as well as information about previous complaints and grievances regarding positions in the clinic where the applicant was employed. The applicant provides brief submissions as to why she is of the view these documents are arguably relevant. ONA has not responded to the applicant’s April 2, 2012 request.

8In a letter dated May 9, 2012 the applicant requests that the Region disclose information related to six job competitions she applied for while employed by the Region and information related to the successful candidate in the job competition that she was determined not to be eligible for. The applicant provides brief submissions as to why she is of the view these documents are arguably relevant. She also states that she has no legal representation and no litigation experience suggesting that these are reasons for why she did not make submissions in her RFOP to support her request for these documents. The applicant also asks for a document that she had not previously requested namely the Record of Employment (“ROE”) the Region issued to the applicant after her employment with the Region ended.

9On May 23, 2012 the Region writes to the Tribunal opposing the applicant’s May 9, 2012 request for documents from the Region. The Region characterizes the applicant’s May 9, 2012 request as a Request for Reconsideration of the Tribunal’s Interim Decision and submits that the May 9, 2012 request is untimely given that it comes over 30 days after the Tribunal’s Interim Decision and fails to meet any of the criteria in Rule 26 of the Tribunal’s Rules of Procedure that would allow the Tribunal to reconsider its Interim Decision.

DECISION

10I am of the view that the applicant’s April 2 and May 9, 2012 requests are, in effect, a Request for Reconsideration as they ask the Tribunal to consider again whether documents the Tribunal ruled in its Interim Decision do not have to be disclosed should be disclosed.

11Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

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.

12The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers. Rule 26 of the Tribunal’s rules of Procedure states, in part:

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.

The Tribunal’s Practice Direction on Reconsideration states, in part, that:

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.

13Importantly, under Rule 26.1, only “final” decisions qualify for a reconsideration request. However, the Tribunal has determined that an interim decision may be a “final” decision where it disposes of some or all of the central issues in an application (see Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34).

14In my view the Tribunal’s March 29, 2012 Interim Decision is not a “final” decision. It does not dispose of a central issue in the Application. I agree with the Tribunal’s decisions in Bartlett v. Hydro One Networks Inc., 2012 HRTO 805 and Alam v. Brimell Motors, 2010 HRTO 899 that determined that interim decisions of the Tribunal denying production requests are not final decisions.

15I would note that even if I was to find that the Interim Decision was a “final” decision the applicant has not provided any information in her April 2 and May 9, 2012 letters that would meet the requirements for reconsideration as set out in of Rule 26(5). The applicant’s April 2 and May 9, 2012 letters re- argue, with additional submissions, why the requested documents should be disclosed. However, as is evident from the Tribunal’s Rules and made explicit in the Practice Direction, reconsideration is not an appeal and it is not an opportunity to re-argue a matter. Once the parties to a case have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of a matter, parties are entitled to treat the matter as closed, subject to limited exceptions (see Sigrist and Carson v. London District catholic School Board, 2008 HRTO 34).

16The applicant also requests in her May 9, 2012 letter a copy of her ROE. The Region opposes this request submitting that there is no dispute about the applicant’s last day of work and consequently the only fact that the ROE could be useful for is not in dispute. In my view the applicant has suggested that her last day of employment may be in dispute and consequently the ROE is arguably relevant. The Region is ordered to disclose the applicant’s ROE.

17The applicant’s April 2, 2012 and May 9, 2012 requests are denied except for the applicant’s request for her ROE.