David Killeen v. Soncin Construction, 2013 HRTO 311

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Killeen

Applicant

-and-

Soncin Construction

Respondent

-and-

Labourers’ International Union of North America, Local 183

Intervenor

RECONSIDERATION DECISION

Adjudicator: Sheri Price

Date: February 25, 2013

Citation: 2013 HRTO 311

Indexed as: Killeen v. Soncin Construction

1This is an Application under s.34 of the Ontario Human Rights Code, R.S.O. c. H.19, as amended (“the Code”), in which the applicant alleges that the respondent discriminated against him because of disability with respect to employment and reprised against him contrary to s.8 of the Code.

REQUEST FOR RECONSIDERATION

2On January 22, 2013, the respondent filed a Request for Reconsideration of the Tribunal’s decision, in a January 18, 2013 Case Assessment Direction, to grant a two-week extension of the time for the filing of the applicant’s written submissions on certain preliminary objections raised by the respondent at the commencement of the hearing of the Application on December 3 and 4, 2012.

3Rule 26.1 of the Tribunal’s Rules of Procedure states:

Any party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision. (emphasis added)

4Rule 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.

5The respondent submits that the Tribunal ought to reconsider its decision to grant the applicant a two-week extension to file his written submissions on the respondent’s preliminary objections because it conflicts with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance (Rule 26.5(c)). In particular, the respondent submits that the Tribunal’s January 18, 2013 decision to extend the deadline for the filing of the applicant’s submissions from January 9, 2013 to January 23, 2013 was in conflict with Tribunal jurisprudence requiring applicants to establish that delay in filing their Applications beyond the one-year time limit provided for in s.34(1) of the Code was incurred in good faith and that no substantial prejudice wil result to anyone affected by the delay.

ANALYSIS AND DECISION

6A decision to extend time limits for the filing of submissions during the course of a proceeding is an exercise of the Tribunal’s discretionary power. It is not determinative of the merits of the Application and, importantly, is not a final Decision. Therefore, pursuant to Rule 26.1 of the Tribunal’s Rules of Procedure, the Tribunal’s January 18, 2013 decision to extend the time limit for the filing of the applicant’s submissions on the respondent’s preliminary objections is not open to reconsideration.

7Even if the Tribunal’s January 18, 2012 decision to extend a time limit were open to reconsideration, I would not grant the respondent’s Request. This is because the Tribunal’s January 18, 2013 Case Assessment Direction is not in conflict with established jurisprudence requiring applicants to establish that delay in filing an Application has been incurred in good faith and that no substantial prejudice will result to anyone affected by the delay (s.34(1) and (2)). The Tribunal’s jurisprudence regarding the statutory limitation period for the filing of an Application pursuant to s.34(1) and (2) of the Code has no bearing on the exercise of the Tribunal’s discretionary power to extend a time limit for the filing of submissions during the course of a proceeding before the Tribunal.

8The Request for Reconsideration is dismissed accordingly.

NEXT STEPS

9As the parties are aware, the hearing of this Application is scheduled to reconvene on Friday, March 1, 2013.

10I am presently considering the parties’ written submissions on the respondent’s preliminary objections and I anticipate determining some if not all of the objections before the hearing resumes. In the meantime, the parties should be prepared to lead and/or respond to evidence on all of the possible issues when the hearing reconvenes.