Bello v. Toronto Transit Commission, 2013 HRTO 972

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roye Bello

Applicant

-and-

The Toronto Transit Commission, Gary Webster, Mary Wiegers, Collie Greenwood, Ron Smale and Brenda Ross

Respondents

RECONSIDERATION DECISION

Adjudicator: Paul Aterman

Date: June 3, 2013

Citation: 2013 HRTO 972

Indexed as: Bello v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Roye Bello, Applicant

Ernest Guiste, Counsel

background

1The applicant has filed a Request for Reconsideration in relation to the Tribunal’s Decision 2013 HRTO 438 dated March 14, 2013. He has also filed a Request for Reconsideration in relation to the Tribunal’s Decision 2013 HRTO 426. That Decision dismissed an Application that arose out of a related set of facts.

2The applicant brought this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, ancestry, place of origin and ethnic origin. The applicant was terminated by the respondent employer. His union grieved the termination. The grievance was resolved through a settlement which led to a withdrawal of the grievance, and a payment to the applicant in consideration for his resignation from employment. The applicant signed the agreement and the corporate respondent sent him a cheque as payment in accordance with the agreement. The applicant then brought this Application, alleging that the disciplinary actions leading to termination were discriminatory and that he had entered into the agreement under duress.

3Following a hearing by teleconference the Application was dismissed pursuant to s.45.1 of the Code because the grievance proceedings and their eventual settlement had appropriately dealt with the subject matter of the Application. I determined that the applicant had not established that he had signed the agreement under duress.

4The applicant is making this Request because he believes that the decision dismissing his Application is in conflict with established case law or Tribunal procedure and maintains that the proposed reconsideration involves a matter of general or public importance. He also maintains that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

analysis

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’s request does not explain how the Decision conflicts with established case law or Tribunal procedure. Neither does it make any argument as to why the proposed reconsideration involves a matter of general or public importance. Rather, the applicant takes issue with key findings of fact in the Decision. He argues that there is no basis in the evidence for the findings of fact that I made to conclude that he had not met the test that would show duress. In doing so he is attempting to re-argue his case, and this is not a proper basis for reconsideration of the Decision.

8As noted above, the hearing also dealt with another Application filed by the applicant. That Application was dismissed on the basis that it had no reasonable prospect of success (see 2013 HRTO 426).

9The applicant argues that because the Application in this case was dealt with pursuant to s.45.1 of the Code, whereas the other Application was dealt with pursuant to the Tribunal’s Rule 19A.1 summary hearing process, these different ways of dealing with two Applications that arise out of related fact situations is inconsistent, arbitrary and therefore an error of law. There is no merit to this argument because each Application gave rise to different issues that needed to be adjudicated using different legal criteria: in this case whether grievance proceedings had appropriately dealt with the subject matter of this Application, and in the other Application whether the applicant could identify any evidence that could support allegations of discrimination.

10Finally, although the applicant maintains that other factors exist that outweigh the public interest in the finality of Tribunal decisions, he does not say what these factors are.

11For the reasons outlined above I conclude 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. Accordingly, the Request for Reconsideration is denied.

order

12The Request for Reconsideration is denied.