Garland v. Canunsa-CPS, 2012 HRTO 1748

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dave Garland

Applicant

-and-

Canunsa-CPS, a Division of Shawcor Ltd. and United Steelworkers, Local 1-1000

Respondents

RECONSIDERATION DECISION

Adjudicator: David Mur Date: September 17, 2012 Citation: 2012 HRTO 1748 Indexed as: Garland v. Canunsa-CPS

WRITTEN SUBMISSIONS BY

Dave Garland, Applicant ) Self-represented

1On July 3, 3012 I issued a Decision in this Application, 2012 HRTO 1309, dismissing the Application because it had no reasonable prospect of success and elements of it were out of time. The applicant filed a Request for Reconsideration on August 8, 2012 asking the Tribunal to reconsider its Decision.

DECISION

2Under 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.

3The Tribunal has issued Rules governing such requests 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, January 2008 amended June 2008). 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

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.

4The 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.

5As 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.

6I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

7In his Request the applicant relies on Rule 26.5(d) above and submits that there are other factors which outweigh the public interest in Tribunal decisions. The applicant’s submissions appear to relate solely to the delay in filing the Application. The applicant suggests that he was advised by a lawyer he consulted that she would not proceed with his Application until after the conclusion the criminal proceedings related to the applicant’s dismissal from employment. The applicant also states that after the criminal proceeding there was further delay because he needed time to pay a lawyer to file the Application.

8It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

9The applicant relies on new facts to support his argument on the delay issue. He however does not explain why these facts were not presented at the summary hearing. It is apparent from the applicant’s submissions that these are facts that have been known to him for some time and could have been presented at the summary hearing. It is not appropriate to consider new facts after a final decision has been made except in the circumstances described in Rule 26.5(a). Having reviewed the applicant’s submissions I am also not persuaded that the applicant’s new facts and arguments would have had any impact on the conclusions I reached in the Decision.

10In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead me to reconsider the Decision. The Request is denied.