Karen McNeil v. Toyota Motor Manufacturing Canada Inc., 2014 HRTO 116

Human Rights Tribunal of Ontario

B E T W E E N:

Karen McNeil Applicant

-and-

Toyota Motor Manufacturing Canada Inc. Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw
Date: January 27, 2014
Citation: 2014 HRTO 116
Indexed as: McNeil v. Toyota Motor Manufacturing Canada Inc.

WRITTEN SUBMISSIONS

Karen McNeil, Applicant

Self-represented

Introduction

1On December 20, 2013, the Tribunal issued its Decision, 2013 HRTO 2111, finding that the applicant had been harassed by the respondent because of his requests, in front of others, for medical documentation to support her absences. The balance of the applicant’s claims were dismissed.

THE REQUEST FOR RECONSIDERATION

2In her Request for Reconsideration the applicant identifies the following main reasons why the Tribunal should reconsider its Decision:

1. The applicant disagreed with the Tribunal’s assessments of credibility;
2. The applicant disagreed with the Tribunal’s determination of appropriate damages for the harassment; and
3. The applicant disagreed with the Tribunal’s findings with respect to, and dismissal of, the balance of the claims made by her.

decision

3Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

4The Tribunal has issued Rules of Procedure, which govern such requests, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers: Practice Direction on Reconsideration, January 2008 amended March 2010. Rule 26 states in part:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. 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; 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 Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so.

7The Tribunal also has stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 that reconsideration is not an opportunity to re-argue a case. Once the parties to an application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

8I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration. The applicant has not:

• set out new facts or evidence that could possibly be determinative of the case;
• addressed why the decision is in conflict with established case law or Tribunal procedure; and
• established that there are factors that outweigh the public interest in the finality of Tribunal decisions.

9The applicant has not set out any submissions that address these three factors. She has not provided any new facts or evidence, but simply has attempted to re-argue her case by again raising credibility issues with respect to the evidence of the respondent’s witnesses and the Tribunal’s assessment of credibility. The four typewritten pages provided with the Request for Reconsideration clearly are an attempt to appeal this decision, which is not the purpose of a reconsideration request, as is set out in the Practice Decision on Reconsideration.

10The applicant also has not provided any basis to support the Decision or the amount of damages being in conflict with established jurisprudence or Tribunal procedure. She has not pointed to any case law with which she alleges the Decision or the amount of damages in this matter is in conflict, nor has she identified any Tribunal procedure which she alleges was not followed. She also has not provided any other factors that would outweigh the public’s interest in the finality of the Tribunal’s decisions.

11In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead me to exercise my discretion to reconsider the Tribunal’s Decision. The Request is denied.