McIlquham v. Invista Canada, 2012 HRTO 7

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffery McIlquham

Applicant

-and-

Invista Canada

Respondent

reconsideration decision

Adjudicator: Keith Brennenstuhl

Date: January 4, 2012

Citation: 2012 HRTO 7

Indexed as: McIlquham v. Invista Canada

WRITTEN SUBMISSIONS BY

Jeffery McIlquham, Applicant ) Self-represented

1The applicant seeks reconsideration of the Tribunal’s decision, 2011 HRTO 2036, dismissing this Application on the basis that it was outside the Tribunal’s jurisdiction because it was untimely. For the reasons that follow, the Request for Reconsideration (the “Request”) is dismissed.

2Rule 26.5 of the Tribunal’s Rules of Procedure sets out the limited circumstances in which reconsideration may be granted:

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.

3The applicant relies upon Rule 26.5 (a). In his Request the applicant states: “The reason for the delay in my application is that due to the health of my father, who received a knee replacement and was subsequently diagnosed with stage 4 cancer. Also, he sold his home and moved to a retirement home due to his medical situation. My wife and I were extremely busy in supporting my father during radiation treatments and the side effects of his radiation.”

4The Request does not explain why the applicant did not mention these difficulties in his Application where he was specifically asked to explain why he was applying more than one year from the last event of alleged discrimination. It was clearly open to the applicant to put forward these difficulties as the reason for his delay. Rather, he only indicated that reason for the delay in filing his Application was because “It took the grievance procedure so long.”

5I note that on August 19, 2011, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) the Application because of the delay in filing the Application. The NOID directed the applicant to provide written submissions explaining “how the delay was incurred in good faith.” It was open to the applicant to raise the difficulties he now puts forward in his submissions but the applicant failed to provide any submissions whatsoever in this regard.

6In any event, the difficulties described by the applicant do not amount to new facts or evidence that “could not reasonably have been obtained earlier.” The facts or evidence relating to these difficulties were clearly available to the applicant at the time he made his Application and could have been pleaded in the Application with little difficulty.

7Moreover,, it is difficult to see how the applicant was prevented by reason of these difficulties from commencing proceedings at this Tribunal in a timely manner when at the same time he was able to engage in a grievance procedure.

8The applicant has not established that the Decision should be reconsidered. The Request is dismissed.