Teske v. Canadian Union of Public Employees, Local 4685, 2012 HRTO 1928

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marlene Teske

Applicant

-and-

Canadian Union of Public Employees, Local 4685 F.J. Davey Home, and Laura Delhenty

Respondents

RECONSIDERATION DECISION

Adjudicator: Ian R. Mackenzie

Date: October 11, 2012

Citation: 2012 HRTO 1928

Indexed as: Teske v. Canadian Union of Public Employees, Local 4685

WRITTEN SUBMISSIONS

Marlene Teske, Applicant

Ernest Guiste, Counsel

Introduction

1On July 25, 2012, the Tribunal issued its Decision in this Application, 2012 HRTO 1450, dismissing the Application (“Decision”). The applicant has asked the Tribunal to reconsider its Decision in accordance with section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The Request for Reconsideration was filed on August 26, 2012, one day beyond the time limit of 30 days for filing such a request. The applicant asked for an extension of time to file the Request for Reconsideration. Given the short period of the delay, an extension of time is appropriate.

background

3The Decision addressed two Applications, one under section 53(3) of part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and the other under section 34 of Part IV of the Code, alleging discrimination in employment and participation in a vocational association on the basis of age and disability. The first Application (T-0361-08) is against her former bargaining agent and the second Application (2010-07056-I) is against her former employer, former bargaining agent and a bargaining agent representative. The applicant’s employment was terminated and a grievance was filed on her behalf by her bargaining agent. At the arbitration hearing, a settlement was reached with the assistance of the arbitrator.

4After a preliminary hearing, the Applications were dismissed on the basis that to allow them to proceed would be an abuse of process.

the request for reconsideration

5The applicant has relied on the following reasons to support her Request for Reconsideration:

a. The decision is in conflict with established case law and the proposed reconsideration involves a matter of general or public importance; and

b. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

6The applicant submitted that human rights of unionized employees are made illusory by the Decision. The applicant submitted that the result is that an individual cannot file an application under the Code where the union and the employer decide to settle the grievance rather than address the substance of that employee’s alleged human rights violation.

7The applicant also submitted that the Decision did not recognize that employees with human rights complaints have a right to be represented by counsel of their choice. She stated that where it is clear that an employee has made that choice all parties in the collective bargaining forum must respect the individual employee's right to counsel.

decision

8Under section 45.7 of the Code, the Tribunal may reconsider its decisions in accordance with the Tribunal’s Rules. The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to applicants and respondents on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008, amended June 2008 and March 2010). Rule 26.5 provides:

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.

9The Tribunal’s Practice Direction on Reconsideration contains 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.

10I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

11The applicant has not pointed to any case law that would support the idea that a grievor in a grievance proceeding has a legal right to independent counsel where that grievor alleges discrimination and that this right somehow could invalidate a settlement executed with that grievor if it was not met. In this case, the applicant participated in the settlement and signed the release. The applicant has not demonstrated that the Decision is in conflict with established jurisprudence. I find that it is not in conflict with established jurisprudence.

12The applicant’s argument that the human rights of unionized employees are made “illusory” also does not support the reconsideration request. A union has a duty of fair representation under the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A. In addition, unionized employees can file an Application against their union if they believe they have been represented in a discriminatory manner.

13I find that the applicant has not demonstrated that the reconsideration request involves a matter of general or public importance or that other factors outweigh the public interest in the finality of Tribunal decisions.

14The Request for Reconsideration is denied.