Malek v. Workplace Safety and Insurance Board, 2013 HRTO 1870

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hala Malek

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

RECONSIDERATION DECISION

Adjudicator: Jo-Anne Pickel

Date: November 12, 2013

Citation: 2013 HRTO 1870

Indexed as: Malek v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Hala Malek, Applicant

Self-represented

1The applicant seeks reconsideration of my Decision dated August 29, 2013, 2013 HRTO 1470, dismissing her Application as having no reasonable prospect of success.

2For the reasons set out below, I find that the applicant has not established the existence of any of the criteria in Rule 26.5 of the Tribunals Rules of Procedure (“Rules”) that would cause me to reconsider my Decision.

The Decision being challenged

3The applicant alleged that the Workplace Safety and Insurance Board (“WSIB”) discriminated against her with respect to services because of place of origin, ethnic origin, race, family status and disability. She also alleged that the WSIB reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Among other things, the applicant alleged that the WSIB treated her differently once it became aware of her place of origin. She also alleged that case managers for the WSIB made discriminatory comments because of her place of origin, family status and disability.

4I dismissed the Application following a summary hearing held under Rule 19A of the Tribunal’s Rules. I found that there was no reasonable prospect that the applicant would be able to advance sufficient direct or indirect evidence to establish a link between the respondents’ alleged actions and the protections set out in the Code.

Applicable Principles

5In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the Tribunal has made a decision in a case, parties are entitled to treat the matter as completed and final, subject to limited exceptions.

6The circumstances in which a Request for Reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s Rules:

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.

THE REQUEST FOR RECONSIDERATION

7The applicant seeks reconsideration under Rules 26.5(a), (c) and (d). In her Request for Reconsideration, the applicant repeats many of the arguments she made at the summary hearing. She also claims that I “ignored” various submissions or information presented at the hearing. She also states that the Decision should be reconsidered because in it I approved of “unlimited surveillance of workers” and endorsed the WSIB’s “unlimited collection and usage of [her] undefined personal data”. The applicant claims that my Decision is inconsistent with decisions in which courts and tribunals have held that videotaped evidence and surveillance reports should be treated with caution.

Analysis

8As noted above, I am dismissing the Request for Reconsideration as the applicant has failed to establish the existence of any of the criteria in Rule 26.5 of the Tribunal’s Rules that might lead to reconsideration of the Tribunal’s decision.

9The applicant has failed to raise any of the criteria set out in subsection (a) of Rule 26.5. She has not raised any “new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier”. All of the alleged facts contained in her Request for Reconsideration were previously raised in her Application and/or in the summary hearing.

10The applicant has failed to show that the Decision is “in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance” as required under Rule 26.5(c). The caselaw cited by the applicant has no application to this case. The cases cited discuss how videotape evidence should be used with caution when admitted into evidence in a case. None of the cases have any bearing on the question before the Tribunal in the summary hearing: that is, whether the Application should be dismissed as having no reasonable prospect of success.

11Finally, the applicant has not persuaded me that “other factors exist that…outweigh the public interest in the finality of Tribunal decisions” as set out in Rule 26.5(d). Although the applicant claims that my Decision permits unlimited surveillance of workers and endorsed the WSIB’s unlimited collection and usage of her personal data, that is a mischaracterization of my Decision. Amongst other findings I made in the decision, I found in the Decision that the applicant had not pointed to any evidence that could reasonably show that the WSIB noted her travel to Egypt for a discriminatory purpose rather than to challenge what it saw as an inconsistency in relation to her claims and her previous actions. This does not amount to endorsing the WSIB’s unlimited collection and usage of personal data, as submitted by the applicant.

12I understand that the applicant has concerns about how the WSIB treated her and that she also has concerns regarding her employer’s surveillance of her activities after her injury. However, for all the reasons detailed above, I find that the applicant has not

established the existence of any of the criteria in Rule 26.5 that would lead to reconsideration my Decision in this case. Therefore, the Request for Reconsideration is denied.