Guydos v. WSIB, 2012 HRTO 2021

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deborah Guydos

Applicant

-and-

WSIB, Fair Practices Commission and WSIB Workplace Safety and Insurance Board

Respondents

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: October 24, 2012

Citation: 2012 HRTO 2021

Indexed as: Guydos v. WSIB

WRITTEN SUBMISSIONS

Deborah Guydos, Applicant

On her own behalf

Introduction

1On September 27, 2012 the applicant filed a letter seeking reconsideration of the Tribunal’s Decision, dated August 7, 2012, 2012 HRTO 1532. On October 4, 2012, she filed a formal Request for Reconsideration (Form 20), pursuant to section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Tribunal’s decision dated August 7, 2012 dismissed three Applications filed by the applicant at the conclusion of a Summary Hearing for no reasonable prospect of success.

3Section 45.7 of the Code provides the Tribunal with authority and discretion to reconsider its decisions:

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.

4The Tribunal has issued rules governing Requests for Reconsideration, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

5Rule 26.5 states 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; 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 and orders.

6The 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.

7Rule 26(1) requires that a request for reconsideration be filed within 30 days of the date of the decision. Both the applicant’s letter and formal Request were filed past the deadline provided for in the Rules. The applicant’s explanation for the delay in filing her Request was that she “was overwhelmed with outfall from WSIB, CHRC, labour board etc., also moving”. I do not find these explanations persuasive. I see no reason to exercise my discretion to permit a late request for reconsideration. On this basis alone, I would deny the applicant’s Request.

8However, I find that even if the Request had been made in a timely manner, the grounds for seeking reconsideration do not meet the Rule 26(5) criteria as set out above.

9The applicant has sought reconsideration on the basis of the grounds outlined in Rule 26(5)(a), (b) and (c).

10She writes that she thought she was participating in ‘a preliminary hearing that was part of the procedure in the complaint”. She indicates that she “did not know at the time that (her) case could be dismissed at this preliminary hearing and had no idea as to why a preliminary hearing was called as the HRTO gave no reason”.

11This contention is not supported by the documents in the Application files. I note that two Case Assessment Directions (“CADs”), dated April 4, 2012 and April 30, 2012, were issued by the Tribunal in advance of the summary hearing held on July 31, 2012.

12In both CADs, Rule 19A was set out and the nature of the summary hearing process explained. The potential outcome of the process was described as follows:

The applicant shall make argument as to why the Applications should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondents’ actions and the grounds cited.

If the Tribunal determines that one or more of the Applications has no reasonable prospect of success, it will be dismissed.

13Given the clear language used in the CAD, I am not persuaded that the applicant was unaware that the summary hearing could result in a dismissal of one or more of the Applications.

14Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal confirmed that reconsideration is not an opportunity to re-argue a case. Once the parties to an application 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.

15The applicant argues that the preliminary hearing was only 10 minutes long and she was not given the opportunity to properly present her case or given a full hearing. These Applications were dismissed following oral submissions. In advance of the summary hearing, the parties were able to submit additional documents they intended to rely upon and the applicant submitted a number of documents. She was required to demonstrate that the respondents’ treatment of her was based, in part, on the prohibited grounds alleged in the Applications.

16It is apparent that the applicant disagrees with the outcome of this Application. However, none of the factors in Rule 26.5 are engaged by the Request for Reconsideration. There is no basis on which I might exercise my discretion to overturn my original decision in this matter. Accordingly the Request for Reconsideration is denied.