Hudson v. Kingston (City), 2014 HRTO 1281

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Hudson

Applicant

-and-

Corporation of the City of Kingston, Carl Smith, Damon Wells, Daryl Townsend and Judy Brick

Respondents

-and-

CUPE Local 109

Intervenor

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: August 28, 2014

Citation: 2014 HRTO 1281

Indexed as: Hudson v. Kingston (City)

WRITTEN SUBMISSIONS

Donna Hudson, Applicant

Self-represented

Introduction

1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In an Interim Decision dated May 4, 2011 (2011 HRTO 873), the Application was deferred by the Tribunal, pending the outcome of a grievance arbitration process in respect of two grievances filed on the applicant’s behalf by the intervenor trade union against the respondent employer.

3The Tribunal’s Interim Decision directed the applicant’s attention to Rules 14.3 and 14.4 of the Tribunal’s Rules, which outline how the Application could be brought back on after the conclusion of the grievance process. In particular, Rule 14.4 requires that a request to proceed with a deferred Application be filed no later than 60 days after the conclusion of the other proceeding and reads as follows:

14.4 Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

4The grievance arbitration process to which the Tribunal deferred concluded with the release of a decision by Arbitrator Elaine Newman, on August 11, 2011.

5On July 11, 2012, well past the 60 day time period set out in Rule 14.4, the applicant filed a Form 10 seeking to reactivate the deferred Application. In separate correspondence, the applicant submitted that the reason for the delay in filing the Form 10 seeking reactivation is that she believed that the union and counsel for the union would “be assisting with the Human Rights Complaint”.

6Following a number of conference calls culminating in an in-person hearing, the applicant’s request to reactivate her Application was denied (2013 HRTO 2006). The applicant has filed a reconsideration request of that decision.

7A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondents or the intervenor.

8For the reasons that follow, the applicant’s reconsideration request is denied.

decision

9Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions:

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.

10Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration 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).

11Most relevant to this decision is Rule 26 which reads, in part, as follows:

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 and orders.

12The 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.

13As 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. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

14The applicant has based her request on Rule 26.5 (a)(c) and (d). She has set out a number of arguments in support of her request. She indicates that during the material time, she and her husband were under a considerable amount of stress because of job loss and subsequent financial pressures, that any delays in seeking reactivation were incurred in good faith. She also argues that she had good reason to believe that the union would be assisting her with her human rights matters and points to the expertise of union counsel in the area of human rights law, alleged irregularities with the arbitration process and her attempts to enforce her rights under the Code despite the obstacles she faced. She closes by saying that strict adherence to time limits would not serve the purpose of the Code as it is intended to protect people like her whose rights have been infringed.

15Although the applicant based her request on Rule 26.5(a), (c) and (d), her arguments and submissions do not speak to the criteria outlined in either Rule 26 or the Practice Direction on Reconsideration. The thrust of her submissions merely reiterate arguments made in writing earlier in the process and orally during the conference call and in person hearings; which arguments were considered and addressed in the decision she seeks to have reconsidered. It is evident that the applicant disagrees with the Tribunal’s decision not to reactivate her Application. However, she has presented no basis to reconsider the decision.

16The Request is denied.