Human Rights Tribunal of Ontario
B E T W E E N:
Roselyn Courtney
Applicant
-and-
Faurecia Automotive Seating Canada Ltd., Shiela Mahoon and George Golodenuff
Respondents
RECONSIDERATION DECISION
Adjudicator: Ena Chadha
Indexed as: Courtney v. Faurecia Automotive Seating Canada Ltd.,
WRITTEN SUBMISSIONS
Roselyn Courtney, Applicant
Cecil Norman, Representative
1This Application was filed on May 10, 2011 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging that she was discriminatorily dismissed from her employment because of a past workplace injury.
2The respondents filed a Response on June 24, 2011 denying the allegations of discrimination. The respondents alleged that the Application is out of time because the last incident of alleged discrimination, namely the applicant’s dismissal on February 26, 2008, took place over three years before the Application was filed.
3By way of a final decision 2011 HRTO 1537, the Application was dismissed because of delay. This Reconsideration Decision addresses the applicant’s Request for Reconsideration of this Tribunal’s decision dismissing her Application.
RECONSIDERATION REQUEST
4On November 10, 2011, representative of the applicant filed a Request for Reconsideration asking the Tribunal to reconsider its Decision on the basis that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.
5The applicant appears to be arguing that the new facts are that the Tribunal did not have the benefit of the applicant’s submissions in response to the respondents’ request to dismiss. As noted in Decision 2011 HRTO 1537, the applicant had not filed submissions with the Tribunal in response to the respondents’ request to dismiss.
6The applicant also subsequently forwarded her own request for reconsideration in addition to the request filed by her representative. In these various reconsideration submissions, the applicant alleges that she only discovered in June 2010 that her grievance was dismissed. The applicant alleges that the discrimination is on-going because she has not been reinstated to her job. The applicant claims that she was not aware that the employer’s action was a contravention of the Code at the time it occurred and only two years later when she tried to ascertain if the termination still stood. The applicant asserts that the discrimination continued past her dismissal because the respondent did not provide her with a Record of Employment.
7Rule 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.
8I am not satisfied that the applicant has shown that there is a basis under Rule 26.5 to reconsider the Tribunal’s Decision. There is no evidentiary or legal basis set out in the applicant’s reconsideration submissions to change my original finding that the Application is untimely. Having reviewed this material thoroughly, I am satisfied that there are no new facts or evidence that could potentially be determinative of the delay issue and that could not reasonably have been obtained earlier.
9The applicant’s claims that she was not aware of the disability related implications of her termination are not consistent with the content of her narrative and other information in the file.
10While the Application Form 1 indicates that the last alleged discriminatory incident was June 7, 2010, the applicant’s narrative clearly indicated that her employment was terminated in 2008. At paragraph 5 of her narrative, the applicant stated that on June 3, 2008 she was issued Minutes of Settlement and a Release to sign, which she refused to do so, and further expressly said that she discovered that management was terminating employees with disabilities or with Workplace Safety and Insurance Board claims.
11In addition, other information in the file confirms that applicant was seeking recourse for her workplace concerns through the assistance of her union. The respondents noted that the applicant filed a grievance on March 10, 2008 with respect to the dismissal of her employment. The applicant’s union, United Steelworkers, confirmed that the parties engaged in unsuccessful grievance settlement discussions. The union indicates that, almost two years after last communication wherein the applicant rejected a settlement offer, the applicant contacted the union in May 2010 seeking information about her claims.
12Based on the information before the Tribunal, it appears that the last incident of discrimination alleged in the Application was the termination of employment which occurred in February 2008, over two years prior to the filing of the Application. The applicant has not established that she could not have pursued her rights within the timeline mandated by the Code. 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. Further, efforts to pursue one’s rights elsewhere and/or late discovery of one’s rights, without more, have been found not to justify delay. See: Miller v. Prudential Lifestyles Real Estate 2009 HRTO 1241; Lutz v. Toronto (City), 2009 HRTO 1137; Kelly v. CultureLink Settlement Services, 2010 HRTO 508. As such, the Application, filed over one year later does not satisfy the requirements of section 34(1).
13The applicant’s disagreement with the conclusions that I drew regarding delay and good faith from the materials before me is not a basis for reconsideration. The applicant’s submissions simply reiterate the information that was already present in the file at the time the Decision was made. The Tribunal’s jurisprudence establishes that reconsideration is not an opportunity to for a party to reargue the case, nor is it available simply because a party disagrees with the decision. See Dwyer v. Chrysler Canada, 2009 HRTO 385. A request for reconsideration is not an opportunity to restate submissions already advanced and considered: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34.
14There are no new facts or evidence that could potentially be determinative of the case and the applicant’s submissions do not raise issues of general importance nor outweigh the public interest in the finality of Tribunal decisions. The applicant has not cited any point where the Decision conflicts with established case law or Tribunal procedure.
15Accordingly, the request for reconsideration is dismissed.
Dated at Toronto, this 28th day of June, 2012.
”signed by”
Ena Chadha
Vice-chair