HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gurpreet Mann Applicant
-and-
Transcon Worldwide (North America) Respondent
RECONSIDERATION DECISION
Adjudicator: Alan G. Smith Date: April 16, 2012 Citation: 2012 HRTO 750 Indexed as: Mann v. Transcon Worldwide (North America)
WRITTEN SUBMISSIONS
Gurpreet Mann, Applicant ) Self Represented
INTRODUCTION
1The applicant filed an Application on October 15, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The respondent filed a Response on March 1, 2011, which included a Request to Dismiss the Application. The respondent argued that since the applicant signed a full and final release with respect to the same issues in dispute, it would be an abuse of process for the Tribunal to continue to process the Application and therefore requests the Application be dismissed.
2The Tribunal sought written submissions from the applicant regarding why she believed the Application should not be dismissed. By Case Assessment Direction of March 18, 2011, a conference call was scheduled in order for the parties to make oral submissions pursuant to s. 43(2) of the Code.
3A conference call hearing was held before me on October 22, 2011. Both parties participated and made oral submissions with regard to the Request to Dismiss.
4By decision dated November 15, 2011, (2011 HRTO 2015), I dismissed the Application based on the fact of the full and final release having been executed by the applicant. The applicant filed a Request for Reconsideration of that Decision on December 15, 2011.
5In her Request for Reconsideration, the applicant makes two essential arguments:
a) That it was unfair to assume that the applicant understood the purpose of a full and final release because she self-identifies as a “human resources professional”; and
b) That she was “going through depression” at the time she signed the release.
ANALYSIS
6Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it reconsider its decision. The Tribunal Rules of Procedure elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.
7It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which 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.
8As 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. See, Chan v. Toronto Police Services Board, 2012 HRTO 687.
9I have reviewed the applicant’s submissions but find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.
10The applicant appears to be raising a new fact and issue, i.e. that she should not be held to the terms of the release because she was depressed at the time she agreed to it. However, in order to grant reconsideration under Rule 26.5(a), the Code requires not only that there be new facts or evidence that could potentially be determinative of the case, but also they could not reasonably have been obtained earlier. See Chao v. Mon Sheong Home for the Aged, 2010 HRTO 1583. The applicant did not explain why this new information could not have been obtained and filed earlier, or why she did not raise the argument regarding her mental health challenges when she had an opportunity to do so, i.e. in her written submissions or at the hearing. Therefore, I am not prepared to grant her Request on the basis of Rule 26.5 (a).
11Since there are no issues with regard to notice being raised, the applicant appears to base her other argument for reconsideration on s. 45.7(c), i.e. that the reasons for the decision to dismiss the Application are in conflict with established jurisprudence and the proposed reconsideration involves a matter of general or public importance.
12In such decisions as Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, LaFortune v. Washington Mills Electro Minerals, 2009 HRTO 1706, Burns v. Employer’s Choice Staffing of Canada, 2009 HRTO 1779, and Winterburn v. General Motors of Canada, 2011 HRTO 1053, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application 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 very limited exceptions.
13The applicant has failed to meet the criteria set out in Rule 26.5. The fact that the decision noted that applicant self identifies as a “human resources professional” was not the pivotal finding on which the application was dismissed. During the course of the hearing the applicant not only confirmed that she was a “human resources professional” but that she also understood her basic legal rights on being terminated. In any event, the fundamental determination on which the decision to dismiss was based was that the applicant had failed to demonstrate that she was under duress, in the legal sense, at the time she agreed to the release. The Request for Reconsideration fails to address the abuse of process issue which was the reason for the dismissal of the Application. At its core, the Request for Reconsideration is therefore an attempt by the applicant to re-argue her case and appeal the Tribunal’s decision.
14Finally there are no grounds to suggest that the reconsideration of this matter constitutes a matter of general or public importance so as to satisfy the second criteria for reconsideration pursuant to Rule 26.5(c). Nor are there any factors that outweigh the public interest in the finality of Tribunal decisions so as to engage Rule 26.5(d)
15It is therefore clear that there is no basis to reconsider the Decision in the light of all the facts and circumstances.
ORDER
16The Request for Reconsideration is dismissed.
Dated at Toronto, this 16th day of April, 2012.
”signed by”___________
Alan G. Smith Member