Thomas v. IATSE Local 461, 2012 HRTO 1993

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rose Marie Thomas Applicant

-and-

IATSE Local 461, Shaw Festival Foundation, Domenico Marcone, William Talbot, Margaret Molokach, Douglas Ledingham, David Edwards, Archie MacKenzie, and Don Finlayson Respondents

RECONSIDERATION DECISION

Adjudicator: Michelle Flaherty Date: October 19, 2012 Citation: 2012 HRTO 1993 Indexed as: Thomas v. IATSE Local 461

WRITTEN SUBMISSIONS

Rose Marie Thomas, Applicant ) Self-represented

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment and in membership in a vocational association based on disability and sex. She also alleges reprisal or threat of reprisal. The respondents deny the allegations.

2On September 21, 2011, I issued an Interim Decision in which I denied the applicant's Request for an Order During Proceedings ("RFOP") to amend the Application and to add further parties. At the same time, I allowed, in part, her RFOP for production of additional documents: 2011 HRTO 1737.

3The Tribunal has since conducted two days of hearing in this matter and additional hearing dates have been scheduled for October and November, 2012. Since I rendered my Interim Decision, the applicant has also filed a new application ("Application 2").

4On September 18, 2012, the applicant filed a Request for Reconsideration of this Decision ("Request"). I note that this Request was made almost one year after the Interim Decision was issued. A 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, I did not deem it necessary to seek submissions from the respondents.

THE REQUEST FOR RECONSIDERATION

5In support of her Request, the applicant states:

a. that I misapprehended the structure of the union and the responsibilities of Cheryl Batulis, one of the proposed personal respondents. The applicant argues that, at material times, Ms. Batulis was both president and business agent of Local 822, and division secretary for the international union. She states that the person who previously occupied Ms. Batulis' position had always been the "go to person" for major disputes. She states that it was, therefore, appropriate for her to disclose the situation to Ms. Batulis in 2007.

b. some of the allegations she wished to add to the Application occurred within one year of the filing of the Application. I understand the applicant to state that she has sought to amend Application 2 to add these same allegations, but that the respondents have taken the position that such allegations more properly form part of this Application. The Tribunal has not yet determined this particular request to amend Application 2;

c. the applicant provides reasons for the delay between the filing of the Application and the RFOP to amend (which was the subject of the Interim Decision). She states that she did not know that Matthew Loeb had the "ability to intervene" until March 2010, but that she was not able to complete her research to support this until October 5, 2010. She also suggests that the delay also arose because she was pursuing appeal mechanisms within the union and because she received an anonymous threat that her union membership was in jeopardy.

ANALYSIS

6Pursuant to section 45.7 of the Code, any party to a proceeding before the Tribunal may request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request.

7Pursuant to Rule 26.1, a Request for Reconsideration must be filed within 30 days of the date of the Decision. Rule 26.5 states that a 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.

8Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In this regard, it is helpful to consider the Tribunal's Practice Direction on Reconsideration, which states, in part:

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.

9The applicant has presented no basis to reconsider the Request and it is denied for the following reasons.

10First, the applicant's Request concerns a preliminary or procedural direction in which the Tribunal refused to allow amendments and add parties. Because it is not a final decision within the meaning of the Tribunal's Practice Direction on Reconsideration, the Interim Decision is not properly the subject of a request for Reconsideration.

11Second, the Request was not filed within 30 days of the date of the Interim Decision, as required in Rule 26.1. While the applicants submissions address her delay in filing the original RFOP, they do not reasonably explain why she waited almost a full year before asking the Tribunal to reconsider the Interim Decision. The fact that, in another proceeding, the respondents have recently opposed similar proposed amendments is not, in my view, a reasonable basis for the year-long delay in making this Request.

12Third, in any event, I am not satisfied that the applicant has provided a basis for reconsideration. The arguments advanced by the applicant in support of her Request regarding the structure of the union and the role of the proposed individual respondents were or could have been made in support of the initial RFOP.

13In her submissions, the applicant has explained why she did not seek these particular amendments earlier in the proceedings. It is not clear to me that these explanations reasonably explain the delay. For example, the applicant has not explained why her fear of reprisal prevented her from seeking to amend the Application but did not prevent her from bringing the Application, seeking a number of other amendments earlier in the proceedings, or exhausting internal union appeal mechanisms.

14Moreover, even if the applicant had provided a good faith reason for delaying in seeking to amend the Application, this would not necessarily be a basis for allowing the amendments. The stage at which the request to amend is brought is an important factor because, until the parameters of the allegations in the Applications have been established, a matter cannot move forward through the Tribunal's process. New and significant amendments can greatly impact the proceeding: they mean delays because respondents must have an opportunity to submit amended responses, they may change the scope of the parties' disclosure obligations, and they also mean that any hearing of the matters will be considerably longer. At some point, in order for an application to advance through the Tribunal's hearing process, its scope must be defined.

15In the Interim Decision, I found that it was not appropriate to broaden the scope of the Application by adding new parties and new allegations at a late stage of the proceedings. At that time, each party had filed a lengthy and detailed application or response, amendments had already been allowed and extensive amended pleadings had been filed in response. The parties had participated in a mediation.

16Some important developments have occurred in the meantime. As I have indicated, the Tribunal has conducted two days of hearing. I have heard evidence and made procedural rulings. All of this has taken place in the absence of the proposed respondents. I cannot conclude that it would be fair or appropriate for me to reconsider my Interim Decision, particularly as it would involving adding parties to a proceeding that is already well underway.

17The applicant has presented no basis to reconsider that decision and her Request is denied.