Duncan v. Ontario Provincial Police, 2013 HRTO 975

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Duncan

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (Ontario Provincial Police)

Respondent

RECONSIDERATION DECISION

Adjudicator: Paul Aterman Date: May 31, 2013 Citation: 2013 HRTO 975 Indexed as: Duncan v. Ontario Provincial Police

WRITTEN SUBMISSIONS

Heather Duncan, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (Ontario Provincial Police), Respondent Christopher Diana, Counsel

background

1The applicant has filed a Request for Reconsideration in relation to the Tribunal’s Decision 2013 HRTO 580 dated April 9, 2013.

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 ancestry, disability, sex and association with a person identified by one of the grounds of discrimination prohibited by the Code.

3The Application was filed in May of 2011. The last alleged incident of discrimination was the discovery by the applicant in 2008 of the existence of one of the respondent’s policies. The policy applied relaxed criteria to the re-employment of former officers of the respondent, if they applied to rejoin the force within two years of having left it initially. The applicant maintained that the respondent did not tell her of the existence of the policy when she resigned from the force in 2003, and that its failure to do so was discriminatory.

4The Application was dismissed for delay. I determined that the applicant had not been able to establish a nexus between her discovery of the policy in 2008 and any of the Code-prohibited grounds that she had cited in her Application.

5The applicant argues that the Application should be reconsidered because she believes that the Decision is in conflict with established case law or Tribunal procedure and maintains that the proposed reconsideration involves a matter of general or public importance. She also maintains that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

analysis

6Section 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.

7The 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.

8The applicant provides a lengthy argument, but it does not explain how the Decision conflicts with established jurisprudence or Tribunal procedure. Rather, the applicant argues that the Decision fails to accurately reflect the facts supporting her Application. She maintains that in applying the discoverability doctrine the Decision wrongly interpreted the facts, as it failed to take her disability into account. The applicant is not bringing new facts to light or showing how the Decision is inconsistent with the law or Tribunal procedure. In making her argument the applicant is attempting to re-argue her case. However, a request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

9The applicant also argues that there are broader issues at stake that outweigh the public interest in the finality of Tribunal decisions. In this regard she maintains that the effect of the Decision is to absolve employers of their responsibility to accommodate disabled employees, and that this sends a wrong message to employers generally. I am of the view that the Decision does not have implications which extend beyond the facts of this particular case. The Decision deals with the particular circumstances that arose between this applicant and this respondent over the course of her employment and following her resignation, including the events in 2008 that led her to file this Application. The Decision does not establish principles of more general application and thus the applicant has not shown that the reconsideration request involves a matter of general or public importance or that other factors outweigh the public interest in the finality of Tribunal decisions.

10For the above reasons I conclude that the applicant has not met the test for reconsideration set out in Rule 26.5.

order

11The request for reconsideration is denied.