David Molnar v. Sinclair Computer Forms, 2013 HRTO 794

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Molnar

Applicant

-and-

Sinclair Computer Forms

Respondent

RECONSIDERATION DECISION

Adjudicator: Ena Chadha

Date: May 13, 2013

Citation: 2013 HRTO 794

Indexed as: Molnar v. Sinclair Computer Forms

WRITTEN SUBMISSIONS

David Molnar, Applicant

Self-represented

1The applicant filed an Application on July 16, 2012, alleging discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges the respondent employer failed to accommodate him when suffered a heart attack in 2003 and that his employment was eventually terminated in 2004.

2On October 29, 2012, the Tribunal rendered a Decision dismissing the Application on the basis that it appeared the applicant abandoned the Application because the applicant had failed to file submissions in response to a Notice of Intent to Dismiss (“NOID”) issued by the Tribunal on August 28, 2012.

3The Tribunal’s NOID indicated that the Application appeared to be outside the Tribunal’s jurisdiction as it was filed more than one year after the last incident of discrimination. The applicant was directed to respond to the issues raised in the NOID by no later than September 27, 2012. The NOID advised the applicant that failure to respond to the NOID may be considered an abandonment of the Application and it might be dismissed for that reason. Since the applicant did not respond to the NOID, the Application was dismissed.

4On January 13, 2013, the applicant filed a Request for Reconsideration. The applicant submits that he did not file an application in 2003 or 2004 because he was unaware of the Tribunal’s process and that he ultimately filed the Application in 2012 when he learned about the Tribunal through his lawyer. The applicant submits that the request for reconsideration was delayed because his lawyer did not inform him of the Tribunal’s Decision dismissing the Application.

DECISION

5Section 45.7 of the Code provides the Tribunal with authority to reconsider its decisions. Rule 26.5 of the Tribunal’s Rules of Procedure provides that 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;

(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;

(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.

6The Tribunal’s Practice Direction on Reconsideration states the following:

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.

7The applicant cites all of the above-noted as his reasons for why he seeks reconsideration.

8I find that the applicant’s reconsideration request must be dismissed. There are no new facts or evidence that could potentially be determinative of the case and the applicant’s request does not raise issues of general importance nor outweigh the public interest in the finality of Tribunal decisions. The applicant has not cited any point where the Decision conflicts with established case law or Tribunal procedure.

9With respect to the applicant’s argument that he did not receive proper notice, it appears that the applicant is asserting lack of notice on the basis that he was unaware of the human rights process back in 2003 and 2004 and that in 2012 his lawyer did not forward the Decision dismissing his Application. While the applicant may not have received notice of the Tribunal’s Decision, the Tribunal has consistently held that, although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights. See Stewart v. Mitten Vinyl, 2010 HRTO 1628.

10I further note the Application was filed approximately seven years outside the Code’s one year timeline. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for any delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. As stated in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith; otherwise, there would be little meaning to the statutory limitation period. I find that the applicant has not demonstrated that he acted with due diligence in pursuing his rights under the Code.

11Accordingly, the applicant’s request for reconsideration is denied.