Steven Hale v. Triple M Metal LP, 2013 HRTO 1981

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Hale

Applicant

-and-

Triple M Metal LP

Respondent

RECONSIDERATION DECISION

Adjudicator: Eric Whist

Date: November 29, 2013

Citation: 2013 HRTO 1981

Indexed as: Hale v. Triple M Metal LP

WRITTEN SUBMISSIONS

Steven Hale, Applicant

Self-represented

1On February 26, 2013, the applicant filed an Application alleging discrimination with respect to employment on the basis of disability and reprisal.

2On August 26, 2013, the Tribunal held a summary hearing to consider the Application. On October 24, 2013, the Tribunal issued Decision 2013 HRTO 1796, (the “Decision”), dismissing the Application. On November 15, 2013, the applicant filed a Request for Reconsideration asking that the Tribunal reconsider its Decision.

3Under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The relevant Tribunal Rule is Rule 26.5 which reads, in part, as follows:

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 and orders.

4The Tribunal has also issued a Practice Direction to provide guidance on how the Tribunal exercises its reconsideration powers (Practice Direction on Reconsideration). The Practice Direction states, in part, that:

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.

5The applicant provided brief written submissions in support of his request for reconsideration. I have reviewed the applicant’s submissions but find that the applicant has not met the burden of establishing that any of the criteria justifying reconsideration set out in Rule 26.5 apply in his case.

6The applicant states that one of the reasons for his request for reconsideration is that there are new facts or evidence that could potentially be determinative in this case and that could not reasonably be obtained earlier. The applicant submits that there are further documents in the respondent’s possession - in the applicant’s “file” - that he has requested that the respondent has not provided.

7It is relevant to note that the Application was dismissed at a summary hearing. A summary hearing is not intended to be a process in which an applicant leads evidence but rather it is a process in which an applicant identifies the evidence that he or she has or that may be reasonably available and makes arguments as to why the applicant believes that this evidence shows that his or her Application has a reasonable prospect of succeeding. Prior to a summary hearing there is no disclosure process under the Tribunal’s Rules that requires a party to disclose documents in its possession that may be arguably relevant and that another party may wish to rely on. Consequently I recognize that there may be documents in the respondent’s possession of interest to the applicant that have not been disclosed, that “could not reasonably have been obtained earlier”.

8However, the applicant has not identified as part of his reconsideration request what documents the respondent might have and how such documents might be determinative, that is what documents the respondent could have that could lead me to find that the applicant has a reasonable prospect of success. I do not find the applicant’s reference to the respondent being in possession of possible further documents in his “file” to be sufficient reason to reconsider my Decision pursuant to Rule 26(5)(a).

9The applicant submits my Decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. However, the applicant has not made further submissions as to why this might be the case. He has referred to no jurisprudence or Tribunal procedure which I would have to consider before determining whether this conflict was such that it involved a matter of general or public importance. Accordingly, I find no reason to reconsider my Decision pursuant to Rule 26(5)(c).

10The applicant does, in his brief submissions, submit that I have made several errors, some minor, some more substantial. He submits that I wrongly stated he was suspended from work for three days in 2006 when it was five days, which is a minor error in the context of my Decision. He submits he did request accommodation from the respondent in 2007 and did complain that the respondent failed to provide such accommodation in 2008, contrary to statements I made in my Decision. While there is no transcript of the summary hearing, I continue to be of the view that the Decision in 2013 HRTO 1796 accurately reflects the statements and submissions made before me during that hearing. However, even assuming the applicant was right on these points I note that the Application, filed in February 2013, does not allege that the respondent failed to accommodate a return to work for the applicant. In other words being accurate about what may have happened in 2007 and 2008 is peripheral to, and ultimately would not have changed, my reasons for determining that the applicant had no reasonable prospect of proving the allegations in his Application.

11Finally, the applicant submits that I made an error when I determined that the applicant had no reasonable prospect of proving the respondent failed to respond to his enquiries in 2012 and 2013 because I did not accept that the respondent had an identifiable motive for doing so. I did not accept the applicant’s underlying theory that he was eligible for insurance benefits that the respondent wished to deny or delay. The applicant submits that he would have been eligible for these insurance benefits up until December 2012 while in my Decision I expressed the view that he would have needed to file his claims for these benefits within one year of his workplace accidents which occurred in 2006 and 2007 in order to be potentially eligible for these benefits.

12This is a more substantial issue. However, I do not find the applicant’s bald assertion that he was, in his view, eligible to claim insurance benefits up until December 2012 - a claim he also made at the hearing - persuasive. It does not lead me to reconsider my Decision under any of the criteria set out in Rule 26.5.

13The Tribunal has repeatedly stated that reconsideration is not an opportunity to re-argue a case. See, for example, Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34 and Winterburn v. General Motors of Canada, 2011 HRTO 1053. 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.

14The applicant’s Request for Reconsideration has failed to meet the criteria set out in Rule 26.5. The Request for Reconsideration is denied.