HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Randolph Boyce
Applicant
-and-
Toronto Community Housing Corporation
Respondent
RECONSIDERATION DECISION
Adjudicator: Judith Allen
Indexed as: Boyce v. Toronto Community Housing Corporation
INTRODUCTION
1The applicant filed a Form 20 on May 27, 2012, requesting a Reconsideration of Tribunal Decision 2012 HRTO 853 rendered April 27, 2012 (the “Decision”) respecting an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), in which the applicant alleged discrimination in employment on the basis of disability. The Decision dismissed the applicant’s application.
2This is the Reconsideration Decision.
Decision
3For the reasons that follow I dismiss the Request for Reconsideration.
Reconsideration Request
4The 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:
26.5 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.
5The applicant alleges:
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 decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and
c) Other factors exist that outweigh the public interest in the finality of Tribunal decisions.
6The Tribunal’s Practice Direction on Reconsideration provides guidance to the community on the Tribunal’s exercise of its reconsideration powers. It 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.
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
7As 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.
New Evidence
8The applicant has not adduced or identified any new evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. Rather, the applicant refers to evidence that was before and considered by the Tribunal and which is specifically referred to by the Tribunal at paras. 11 – 14 of the Decision. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered, which is essentially what the applicant seeks to do.
9It 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 with respect to evidence are a re-iteration of issues already fully canvassed before the Tribunal.
Conflict with Existing Case Law – Public Importance
10The applicant asserts that the Tribunal failed to follow established case law and procedure. The arguments he makes in this request for reconsideration are not new and were thoroughly canvassed in the Decision at paras. 32 – 36. Moreover, the case law he relies upon was distinguished by the Tribunal. There is no question that the respondent was attempting to provide him with an individual assessment. The problem was that the applicant failed to cooperate to provide evidence that his preference for accommodation was medically necessary or reasonably possible. The respondent adduced evidence that the accommodation being sought by the applicant was not medically necessary and not reasonably possible and that there was no evidence that the offers of accommodation that were made, were unreasonable. The Tribunal’s Decision that the applicant is entitled to “reasonable accommodation, not perfect accommodation” is based upon the evidence adduced with respect to the applicant’s individual circumstances and consistent with HRTO case law and procedure.
11The Tribunal stated in Sigrist and Carson, above, that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that his submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.
Other Factors Exist that Outweigh the Public Interest in Finality
12The applicant asserts that the Decision “has the effect of turning back the accommodation clock for thousands of injured employees under the same situation. Any job offered by the employer can be deemed a suitable job by the WSIB.”
13This is essentially a reiteration of the applicant’s previous argument and mistaken view that the decision is not based on well-established accommodation principles. For the reasons above I find that the applicant has not raised any other factors that would outweigh the public interest in finality of Tribunal decisions.
Conclusion
14In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. I therefore dismiss this Request for Reconsideration.
Dated at Toronto, this 8th day of November, 2012.
”signed by”
Judith Allen
Member