HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cory Rhijnsburger
Applicant
-and-
Wal-Mart Canada Corp.
Respondent
RECONSIDERATION DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Rhijnsburger v. Wal-Mart Canada Corp.
WRITTEN SUBMISSIONS
Cory Rhijnsburger, Applicant ) Self-represented
1The purpose of this Reconsideration Decision is (1) to deal with the applicant’s Request for Reconsideration of the Tribunal’s Interim Decision, 2013 HRTO 1109, which dismissed some of his allegations, and (2) to provide directions to the applicant with respect to the hearing of the merits of his remaining allegations.
2On June 21, 2013, following a summary hearing, the Tribunal issued an Interim Decision, which dismissed the applicant’s allegations of discrimination, harassment and reprisal in his original Application because they had no reasonable prospect of success, and decided that only his allegations of discrimination and reprisal with respect to the termination of his employment would proceed to a merits hearing.
3On July 22, 2013, the applicant filed a Request for Reconsideration of the Tribunal’s dismissal of his allegations of discrimination, harassment and reprisal in his original Application. On August 6, 2013, he filed further written submissions in support of his Request.
4Section 45.7(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal rules.
5Rule 26.5 of the Tribunal’s Rules of Procedure states that 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.
6The Tribunal has also issued a Practice Direction on Reconsideration to provide guidance to the community on the nature of the reconsideration process. The Practice Direction 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.
Reconsideration is not an appeal.
7In his Request for Reconsideration, the applicant indicated that the Tribunal’s dismissal of his allegations of discrimination, harassment and reprisal in his original Application should be reconsidered in accordance with Rule 26.5 a), c) and d). However, in his submissions in support of his Request, the applicant did not explain how his Request falls within the criteria set out in Rule 26.5 a), c) and d). Instead, he essentially repeated the same arguments that he made in advance of and at the summary hearing.
8Reconsideration is not available simply because a party disagrees with the Tribunal’s decision, and it is not an opportunity for a party to reargue the case. Accordingly, the Request for Reconsideration is dismissed.
9The applicant’s allegations of discrimination and reprisal with respect to the termination of his employment are proceeding to a two-day merits hearing. The Tribunal has a duty to dispose of these allegations fairly, justly and expeditiously. See section 40 of the Code, and Rule 1.1 of the Tribunal’s Rules.
10The applicant is currently self-represented. He identifies as having several mental disabilities and appears to have difficulties following the Tribunal’s Rules and directions. These circumstances raise issues about having a fair, just and expeditious hearing. The applicant may need to contact and summons witnesses (including, possibly, an expert witness if he plans to argue that the conduct that led to the termination of his employment was disability-related) and obtain and present documents. The applicant will be at a disadvantage if he has difficulties, or is incapable of, taking some or all of these steps because of his disabilities. Furthermore, there is a risk that the hearing will become bogged down and protracted if the applicant is unable to follow the Tribunal’s Rules and directions because of his disabilities.
11The Tribunal has a duty to ensure that a self-represented party has a fair opportunity to present his or her case. See Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315 at paras. 38-39. However, the Tribunal must remain independent and impartial, and cannot advocate for a self-represented party or advance his or her case. See Kainz v. Potter, (2006), 2006 CanLII 20532 (ON SC), 33 R.F.L. (6th) 62 (Ont. S.C.) at para. 64.
12Accordingly, the applicant should contact the Human Rights Legal Support Centre (http://www.hrlsc.on.ca/en/) and/or the Law Society of Upper Canada’s Lawyer Referral Service (http://www.lsuc.on.ca/) for assistance in obtaining legal representation or advice on how to present his case at the Tribunal. I also draw the applicant’s attention to the Guide to Preparing for a Hearing before the Human Rights Tribunal of Ontario, which can be found on the Tribunal’s website (http://www.hrto.ca/hrto/).
13The Tribunal makes the following orders and directions:
The applicant’s Request for Reconsideration is dismissed.
The applicant should contact the Human Rights Legal Support Centre and/or the Law Society of Upper Canada’s Lawyer Referral Service for assistance in obtaining legal representation or advice on how to present his case at the Tribunal.
The applicant should review the Guide to Preparing for a Hearing before the Human Rights Tribunal of Ontario for guidance on how to present his case at the hearing.
14I am not seized of this matter.
Dated at Toronto, this 22nd day of October, 2013.
“Signed by”
Ken Bhattacharjee
Vice-chair