Bello v. Amalgamated Transit Union, Local 113, 2013 HRTO 973

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roye Bello Applicant

-and-

Amalgamated Transit Union - Local 113, Ian MacKay, Frank Grimaldi and Bob Kinnear Respondents

RECONSIDERATION DECISION

Adjudicator: Paul Aterman Date: June 3, 2013 Citation: 2013 HRTO 973 Indexed as: Bello v. Amalgamated Transit Union, Local 113

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 426 dated March 13, 2013. He has also filed a Request for Reconsideration in relation to the Tribunal’s Decision 2013 HRTO 438. 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 membership in a vocational association because of race, colour, ancestry, place of origin and ethnic origin. He alleged that, for reasons which are discriminatory, the union and the personal respondents failed to represent him adequately in dealing with discipline proceedings instituted by his employer.

3Following a summary hearing, the Application was dismissed as having no reasonable prospect of success because the applicant could not point to any evidence that would link the alleged events to prohibited grounds of discrimination.

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, it argues that the key finding in the Decision, namely that the applicant could not point to any evidence that would link the alleged events to prohibited grounds of discrimination, is not supported by the evidence. However, the applicant does not go beyond simply making this assertion to explain why this is the case. In making this submission the applicant is trying to re-argue his case.

8The request also cites the Tribunal’s failure to take into account an unsolicited post-hearing submission from the applicant dated March 14 and received by the Tribunal on March 15, 2013. The applicant appears to argue that a failure to consider this submission was an error of law. Quite apart from the question of whether the Tribunal was under any obligation to take into account an unsolicited post-hearing submission, the Decision had already been issued on March 13, 2013, before the letter was even sent, and thus the failure to consider this submission is not a basis for reconsidering the Decision.

9As noted above, the hearing also dealt with another Application filed by the applicant. That Application was dismissed on the basis that, pursuant to s.45.1 of the Code, another proceeding had appropriately dealt with the substance of that Application (see 2013 HRTO 438).

10The applicant argues that because the Application in this case was dealt with pursuant to the Tribunal’s Rule 19A.1 summary hearing process, whereas the other Application was dealt with pursuant to s.45.1 of the Code, 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 applicant could identify any evidence that could support allegations of discrimination, and in the other Application whether grievance proceedings had appropriately dealt with the subject matter of that Application.

11Finally, 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.

12For 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

13The Request for Reconsideration is denied.