Janet Berger v. Financial Services Commission of Ontario and Gore Mutual Insurance Company, 2012 HRTO 675

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janet Berger

Applicant

-and-

Financial Services Commission of Ontario and Gore Mutual Insurance Company

Respondents

RECONSIDERATION DECISION

Adjudicator: Ena Chadha

Date: April 2, 2012

Citation: 2012 HRTO 675

Indexed as: Berger v. Financial Services Commission of Ontario

WRITTEN SUBMISSIONS

Janet Berger, Applicant ) Self-represented

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on February 17, 2011 alleging discrimination and reprisal with respect to services, goods and facilities, as well as employment and housing, because of ethnic origin, disability and sex. The Application alleged that the applicant was treated discriminatorily by the respondent Gore Mutual Insurance Company when it cancelled her benefits in 2001 and 2003 and by respondent Financial Services Commission of Ontario when it rendered a Decision in July 2010 denying her application for variation/revocation of an order by an arbitrator in 2004.

2The Application was dismissed by way of Decision 2011 HRTO 1463, dated August 3, 2011, pursuant to section 34(11) of the Code, because the Application was filed outside of the one year timeline and also because parts of the Application were subject to judicial immunity and, therefore, do not fall within the Tribunal's jurisdiction.

3The applicant filed a request for reconsideration on February 23, 2012. The applicant asserts that there are new facts or evidence which were not available before; the decision is in conflict with established case law and involves a matter of public importance; and that other factors exist that outweigh the public interest in the finality of the Tribunal's decision. The applicant argues that the original Decision was incorrect and did not understand the true facts of her disability.

RELEVANT LEGISLATIVE PROVISIONS

4Section 45.7 of the Code provides the Tribunal with authority to reconsider its decisions. Further to its power to make rules, the Tribunal has issued Rules governing Requests for Reconsideration.

5Most relevant to this Reconsideration 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

26.5.1 A Request for Reconsideration made more than 30 days following the Decision will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

[emphasis added]

6Rule 26.5 provides 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;

(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;

(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.

DECISION

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.

8On my review of the Reconsideration Request, I am satisfied that there is no basis to reconsider the Decision. The applicant appears to suggest that the Tribunal did not understand her concerns and that she genuinely required treatment for her disability. The applicant is attempting to re-argue her case by repeating the same arguments that were made earlier.

9Tribunal jurisprudence recognizes the public importance in upholding the finality of decisions subject to certain circumstances as outlined in the Practice Direction. I cannot conclude that, as asserted by the applicant, it is in the public interest to continue to deal with the Application.

10The applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal's Decision. There are no new facts or evidence that could potentially be determinative of the case and the applicant's request does not raise issues of general importance nor outweigh the public interest in the finality of Tribunal decisions. The applicant has not cited any point where the Decision conflicts with established case law or Tribunal procedure.

11Further, I note that, on the basis of delay alone, the Tribunal may deny the request for reconsideration. See der von Felix v. International Financial Data Services (Canada), 2010 HRTO 362 and Liu v. Country Herbs, 2011 HRTO 1166.

12The applicant filed her request for reconsideration approximately 6 months after the Decision was issued and about 5 months beyond the time required for filing a reconsideration request. Other than stating that she did not realize what her rights were, the applicant provided no explanation for the 5 month delay. The Tribunal has repeatedly found that ignorance of the law is not a good faith explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339; Desauliniers v. Canadian Auto Workers, 2009 HRTO 1743; Winston v. University Health Network, 2011 HRTO 1648.

13In the particular circumstances of this case given that the Decision dismissed the Application for delay, I do not accept the applicant's submission that her lack of awareness of her rights is a good faith explanation for the delay. I find that the applicant has provided no meaningful information or justification for why the request for reconsideration was made beyond the timeline stipulated in Rule 26 and, therefore, has not established good faith within the meaning of Rule 26.5.1.

14I find that even if the request had been made in a timely manner, the grounds for seeking reconsideration do not meet the Rule 26 factors as set out above. Accordingly, the reconsideration request is dismissed.