HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ireta Hall
Applicant
-and-
City of Ottawa-Garry Armstrong Long Term Care Home and Diana Johnston
Respondents
-and-
Ottawa-Carleton Public Employee’s Union, CUPE Local 503
Intervenor
RECONSIDERATION DECISION
Adjudicator: Jay Sengupta
Indexed as: Hall v. Ottawa (City)
WRITTEN SUBMISSIONS BY
Ireta Hall, Applicant ) Self Represented
Introduction
1This is an Application filed on February 3, 2010, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant alleged discrimination in employment on the grounds of disability, record of offences and association with a person identified by a protected ground.
2In an earlier Interim Decision, the applicant’s union, Ottawa-Carleton Public Employee’s Union (CUPE Local 503) (the “union”), was granted intervenor status and the Application was deferred pending the conclusion of a related grievance (2010 HRTO 1244).
3After the conclusion of the grievance process, the applicant made a request to proceed with the Application. The respondent did not oppose her request but sought to have the Application dismissed on the basis that it would constitute an abuse of process to continue to hear the matter, arguing that the grievance proceeding had resulted in Minutes of Settlement that had addressed the human rights issues before the Tribunal.
4The Request to Proceed was granted (2010 HRTO 2535) and a conference call hearing took place to hear submissions on the respondent’s Request for Order. The applicant and respondent participated. The intervenor union did not. During the course of the teleconference, the applicant asserted that she had not signed the Minutes of Settlement and it became clear that the submissions of the intervenor union would be required in order to clarify the circumstances surrounding the signing of the Minutes of Settlement. The union was directed to provide submissions and the parties were given a chance to respond to those submissions.
5The union provided written submissions which indicated that the applicant had not signed the Minutes of Settlement and that the union had signed on her behalf, notwithstanding the applicant’s dissatisfaction with the terms. The union confirmed that it then withdrew the grievance, pursuant to the terms of the Minutes of Settlement, in accordance with its rights and obligations under the Code and the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1.
6The union took the position that it had canvassed all human rights issues raised by the applicant with her and outlined its reasons for settlement. The union pointed out that the applicant had applied for and was found eligible for Canada Pension Plan (“CPP”) disability benefits effective either March or May, 2009. As a result, the union’s assessment was that there was no ongoing obligation for the respondent employer to continue to seek to accommodate the applicant, given that the applicant had asserted, and argued successfully, in another forum that she had a severe and prolonged disability and was incapable of pursuing substantially gainful employment.
7The union also pointed to the applicant’s appeal of the denial of continuing LTD benefits in support of their position. The union argued that in the LTD appeal the applicant was asserting that she continued to be incapable of performing the essential duties of not only her own, but any other, occupation.
8Upon reviewing the submissions of the parties and the information provided by the union in its submissions, the Tribunal directed that a further conference call be held pursuant to Rule 19A, to consider whether the Application should be dismissed on the basis that it has no reasonable prospect of success.
9In particular, the parties were informed that they should be prepared to address the issue of whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities that she was discriminated against on the basis of disability, record of offences and association with a person identified by a protected ground, as she alleges in her Application, given the arguments made by her and accepted by Human Resources and Development Canada in assessing her eligibility for Canada Pension Plan disability benefits at the same time that she sought accommodation in the workplace from the respondent employer.
10The parties were directed to deliver any additional materials they intended to rely on that had not already been provided to each other and to file a copy with the Tribunal no later than two weeks in advance of the conference call.
11During the conference call, I heard from the parties and the Application was then dismissed by way of a Decision dated November 7th, 2011, on the basis that there was no reasonable prospect that it would succeed.
12On December 9, 2011, the Tribunal received a letter from the applicant and copied to the respondent and the intervenor union, dated December 9, 2011 seeking to appeal the November 7, 2011 Decision.
13The Tribunal sent the applicant a letter dated December 12, 2011, copied to the respondent and intervenor union, explaining that Tribunal decisions are not subject to appeal, outlining the reconsideration process and timelines and enclosing a Form 20 (Request for Reconsideration) and a Form 23 (Statement of Delivery).
14On January 12, 2012, the Tribunal received the Request for Reconsideration form. This is the Tribunal’s Decision on the Request for Reconsideration.
Reconsideration Request
15Section 45.7 of the Code provides the Tribunal with explicit authority 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.
16Further to its power to make rules, the 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 (Practice Direction on Reconsideration).
17Most relevant to this decision is Rule 26 which reads, in part, as follows:
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 and orders.
18The 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.
19As 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.
20Although the applicant failed to comply with the requirement in Rule 26.1 that the reconsideration request be filed within 30 days, I have reviewed the materials filed by her, both on December 8, 2011 and on January 12, 2012.
21Although, the Reconsideration Request form indicates that the applicant has based her request on Rule 26.5 (a) (c) and (d), in the documents filed since the Decision was issued, the applicant fails to identify any evidence or outline any argument that speaks to the three grounds cited. She explains how upset and disappointed she is by the Decision, her view that the respondent’s point of view has been considered and hers has not, her distress that she has to continue to live with her disability and the harm that she alleges she has suffered and her intention to continue to seek justice. She closes by saying that she will call witnesses.
22In the circumstances, the Request for Reconsideration is denied.
Dated at Toronto, this 1st day of February, 2012.
“signed by”
Jay Sengupta
Vice-chair