HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Katherine D. Oakley

Applicant

-and-

The Corporation of the County of Lanark

Respondent

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle

Date: November 29, 2013

Citation: 2013 HRTO 1986

Indexed as: Oakley v. The Corporation of the County of Lanark

WRITTEN SUBMISSIONS

Katherine D. Oakley, Applicant

Self-represented

Introduction

1On July 25, 2013, the Tribunal issued its Decision in this Application, Oakley v. Lanark (County) 2013 HRTO 1305, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

background

2The Tribunal’s Decision found as follows:

• allegations pre-dating the year prior to the filing of the Application, were dismissed on the basis of delay.

• the timely allegation, an allegation that the respondent employer changed her work area for part of her shift in June 2012 by way of reprisal, was dismissed on the basis that there was no reasonable prospect it would succeed.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably be obtained earlier.

b. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

4The Tribunal has not directed the respondent to file a Response to the Request for Reconsideration.

DECISION

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

5The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

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.

6The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

7As 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.

8I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

9As indicated above, the applicant relies on Rule 26.5 (a) and (d). She submits that the allegations in her Application are timely and that the respondent has reprised against her.

10In support of her Request, the applicant essentially repeats arguments made orally before the Tribunal, and also refers to the respondent’s November 2010 decision to assign her to the 6am to 2pm shift as ongoing reprisal. Though in her Application, she indicated that the date of the last alleged incident of reprisal was June 25, 2012, when the respondent assigned her duties in a different physical area of its premises, in her Request for Reconsideration she submits that the reprisal is ongoing and that her allegations are timely. She also includes a letter she received from the respondent on July 19, 2013, after the hearing in this matter, regarding a petition she signed and which was presented to the respondent employer. In essence she submits this by way of arguing that she was justified in not filing her Application earlier, for fear of her employer’s reaction.

11Even reviewing the additional information and submissions provided by the applicant with respect to the July 19, 2013 letter from the respondent employer, I am not satisfied that it would have altered the conclusion in any way. The applicant has not identified any other new facts or evidence that could not have reasonably been obtained earlier which could potentially be determinative of the case.

12The breach of the Code which the applicant alleged is reprisal, and one of the allegations she made is that the respondent’s decision to schedule her to work 6 am to 2 pm was taken as a reprisal (I also note that in her Reply, she indicated that this was a scheduling assignment she “agreed to take” but that had the respondent indicated that the “care areas are subject to change…[I] would have turned it down”). Though it may have had lasting impact, the respondent’s decision to change her shift, as it relates to an allegation of reprisal, was a discrete incident which preceded the one year period immediately prior to the filing of the Application, and was dismissed for delay in the Tribunal Decision for which the applicant now seeks reconsideration.

13It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson, above, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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 limited exceptions. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

14While the applicant clearly disagrees with the conclusions of the Tribunal, reconsideration is not available simply because a party disagrees with the Tribunal’s decision, and it is not an opportunity for a party to reassert positions previously argued or advance arguments which could have been made.

15The applicant has not provided submissions to establish that other factors exist which outweigh the public interest in the finality of Tribunal decisions.

16In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.