Edwards v. Heydary Hamilton Professional Corporation, 2012 HRTO 2181

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kai Yorke Edwards

Applicant

-and-

Heydary Hamilton Professional Corporation

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: November 21, 2012

Citation: 2012 HRTO 2181

Indexed as: Edwards v. Heydary Hamilton Professional Corporation

WRITTEN SUBMISSIONS

Kai Yorke Edwards, Applicant

Alison A. Thornton, Counsel

Introduction

1This is 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”), alleging discrimination in employment on the basis of sex, family status and reprisal.

2The Application contained two general allegations. First that the respondent failed to appropriately accommodate pregnancy related illness in July 2009. Second, the applicant states that she was terminated when she asserted her rights to take a pregnancy leave in May 2010.

3In 2012 HRTO 1864, I dismissed the Application as it related to the termination issue on the basis that it had been appropriately dealt with in another proceeding.

4The applicant has filed a Request for Reconsideration (Form 20).

5Under 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.

6The 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.

7The 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.

8As the above materials make clear, 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.

9Under Rule 26.1, only “final” decisions qualify for a reconsideration request. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal determined that even an interim decision may be “final” where it disposes of some or all of the central issues in the application. I am satisfied that the Interim Decision in the matter before me disposed of some of the central issues in the Application and, on this basis, the Tribunal’s reconsideration process is available.

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

11The applicant relies on Rule 26.5 (c) and (d). However the applicant’s essential submission is that I have misapprehended and misapplied the reasoning of the Supreme Court in British Columbia (Workers’ Compensation Board). v. Figliola 2011 SCC 52, 2011 S.C.C. 52 (Figliola).

12In support of her Request, the applicant essentially repeats arguments made orally before the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

13I am also not persuaded that my conclusions in the Interim Decision are in conflict with established jurisprudence. The Tribunal also stated in Sigrist and Carson 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 my conclusions, I note again that my determinations in the Interim Decision are not without precedent. I am satisfied that the applicant’s submissions on this Request do not establish that the Interim Decision conflicts with established jurisprudence.

14To the extent that the applicant makes arguments that were not made at the hearing I note that the general issues raised in this Request were the subject of submissions, and dealt with in my Interim Decision. Again in Sigrist and Carson, above, the Tribunal held that reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, the parties are entitled to treat the matter as closed, subject to limited exceptions. I find certain of the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

15In conclusion, 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. The Request is denied.