HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bruce Macdonald
Applicant
-and-
Toronto District School Board
Respondent
RECONSIDERATION DECISION
Adjudicator: Jay Sengupta
Indexed as: Macdonald v. Toronto District School Board
WRITTEN SUBMISSIONS
Bruce Macdonald, Applicant
Carolyn Johnston, Counsel
Introduction
1On July 10, 2013, the applicant filed Request for Reconsideration (Form 20), pursuant to section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), seeking reconsideration of the Tribunal’s Interim Decision, dated June 6, 2013 (see 2013 HRTO 1021).
2The Tribunal’s decision, dated June 6, 2013, dismissed parts of an Application filed by the applicant following a preliminary hearing on the basis of delay and the application of the doctrine of abuse of process.
3In addition to seeking reconsideration of the Interim Decision, the applicant also seeks clarification as to the scope of the hearing presently scheduled for January 22, 23 and 24, 2014. A separate Case Assessment Direction will be issued with respect to issues relating to the hearing.
Decision
4Section 45.7 of the Code provides the Tribunal with authority and discretion to reconsider its decisions:
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 Requests for Reconsideration, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.
6Rule 26 is reproduced in full below:
26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision.
26.2 A Request for Reconsideration must be made in Form 20 and be delivered to all parties and filed with the Tribunal.
26.3 A Request for Reconsideration must include:
a) reasons for the request, including the basis upon which the Tribunal is asked to grant the request for reconsideration;
b) submissions in support of the request; and,
c) remedy or relief sought.
26.4 A party who has been served with a Request for Reconsideration need not file a response with the Tribunal unless the Tribunal directs that a response is required. Where a party is directed to file a response to the request, it must be in Form 21, Response to Request for Reconsideration, and must include complete written submissions in support of its position.
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.
26.5.1 A Request for Reconsideration made more than 30 days following the Decision will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
26.6 The Tribunal shall not grant a Request for Reconsideration without providing the parties an opportunity to make submissions.
26.7 The determination of the Request for Reconsideration shall be conducted by written submissions unless the Tribunal decides otherwise.
26.7.1 Where a Request for Reconsideration has been determined, the Tribunal will not consider a subsequent Request for Reconsideration of the same decision, absent exceptional circumstances. The Tribunal need not give reasons for a decision not to consider a subsequent Request.
26.8 Where the Tribunal considers it appropriate to reconsider its decision it may:
a) make a decision on the substance of the Request without further submissions from the parties, or
b) determine a procedure for rehearing all or part of the matter.
26.9 The Tribunal may reconsider a decision on its own initiative where it considers it advisable and appropriate to do so.
26.10 Where the Tribunal decides to reconsider a decision on its own initiative, it will determine a procedure for rehearing all or part of the matter, which will include an opportunity for the parties to make submissions.
7The 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.
Delay in Filing Reconsideration Request
8The applicant did not file his request for reconsideration within the 30-day time limit outlined in the Rules. The deadline for filing was July 6, 2013, 30 days from the date of the Interim Decision in question. Counsel for the applicant sent a letter to the Tribunal two days after the deadline for filing the reconsideration request had expired, on July 8, 2013, indicating that for reasons relating to his disability, the applicant had been unable to provide her with instructions until July 8, 2013. In the letter she sought a further two-day extension to file the Form 20.
9The question for me is whether to consider the issues raised in the reconsideration request despite the delay in filing. The factors to consider in deciding that question are outlined in Rules A3.1 (formerly Rule 1.1) and Rule 26.5.1.
10SJTO Common Rule A3.1 (formerly Rule 1.1) reads as follows:
A3.1 The rules and procedures of the tribunal shall be liberally and purposively interpreted and applied to:
(a) promote the fair, just and expeditious resolution of disputes,
(b) allow parties to participate effectively in the process, whether or not they have a representative,
(c) ensure that procedures, orders and directions are proportionate to the importance and complexity of the issues in the proceeding.
11As the reason for the extension request relates to the applicant’s disability-related difficulty in providing counsel with instructions within the time allowed despite his stated intention to seek reconsideration, I am satisfied that the delay was incurred in good faith. Furthermore, given that this request relates to an ongoing Application that is scheduled to proceed to hearing, I am satisfied that no substantial prejudice will result to the respondent from a granting of this four-day extension.
Basis for Reconsideration Request
12The applicant has sought reconsideration of the Interim Decision on the basis of the grounds outlined in Rule 26(5)(c) and (d).
13He argues that the Tribunal’s Interim Decision ought to be reconsidered because it is in conflict with established case law and involves a matter of general or public importance and because factors exist that outweigh the public interest in the finality of Tribunal decisions.
14The specific arguments advanced are as follows.
Dismissal of portions of the Application for Delay
15First, the applicant argues that the Tribunal’s analysis in determining that there was a delay caused by a break in the series of incidents involving accommodation of the applicant’s disability that predate September 2006 is flawed.
16The applicant’s position is that this analysis relies on the granting of long term disability benefits by an LTD provider for the 2004-2005 and 2005-2006 school years and ignores requests made throughout that same period by the applicant for accommodation that would address his physical work environment and location, limit his social interaction with his peers in the workplace and address the nausea and fatigue he experiences during the work day.
17The argument advanced by the applicant with respect to the delay analysis is that it is premised on a preliminary and unsupported conclusion as to the merits of the substance of the Application and that the decision of an LTD provider to grant long term disability benefits to the applicant for the two year period in question does not support a conclusion that there was a break in the series of incidents of discrimination.
18The Interim Decision considered the very arguments being advanced in the reconsideration request. The fact is that the applicant was not actively employed by the respondent school board during the two year period in question. The allegedly discriminatory action that resulted in his being away from active employment and in receipt of LTD benefits occurred at the beginning of the 2005-2005 school year. Merely renewing his request periodically while in receipt of LTD benefits in the following two years, which benefits he applied for and did not refuse or repay, and which requests did not result in a change in the original allegedly discriminatory decision by the respondent, is not sufficient to constitute either an ongoing or new incident of discrimination.
Abuse of Process Issues
19Second, the applicant argues that the Tribunal erred in finding that the respondent had satisfied the test for abuse of process as there was no evidence that the parties intended to bar future litigation with respect to the outstanding human rights issues by entering into Minutes of Settlement with the assistance of Arbitrator Kaplan in September 2008, one month before the filing of this Application.
20Paragraphs 9 through 28 of the Interim Decision canvassed the arguments advanced by both parties in respect of this issue including those now advanced as part of the reconsideration request by the applicant. Despite raising the issue, the applicant has provided me with no argument or basis upon which reconsideration of my ruling concerning the abuse of process issue is warranted.
21As the Tribunal has often held, reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal confirmed that reconsideration is not an opportunity to re-argue a case.
22Once 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 limited exceptions.
23Having reviewed the request, I am not persuaded that the factors in Rule 26.5 are engaged.
24Accordingly the Request for Reconsideration is denied.
Dated at Toronto, this 6th day of December, 2013.
“Signed by”
Jay Sengupta
Vice-chair