Bogdan Koscik v. Lakeridge Health Corporation, 2014 HRTO 1373

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bogdan Koscik

Applicant

-and-

Lakeridge Health Corporation

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: September 16, 2014

Citation: 2014 HRTO 1373

Indexed as: Koscik v. Lakeridge Health Corporation

APPEARANCES

Bogdan Koscik, Applicant

Self-represented

1On August 6, 2014, the Tribunal issued its Decision in this Application, 2014 HRTO 1170, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

2In the Decision I dismissed this Application because it was untimely being filed almost four years after the events giving rise to the Application. Given the lengthy delay in filing the Application the issue dealt with in the Decision was whether the Application could be allowed to proceed pursuant to section 34(2) of the Code because the applicant had established a good faith explanation for the delay.

3The applicant had argued that he was ill for an unspecified period of time after the events giving rise to the Application. On the other hand it was clear that the applicant had pursued several other legal proceedings in relation to the events giving rise to this Application, including a grievance arbitration, an application before the Ontario Labour Relations Board and an application for judicial review. As pointed out in the Decision the Tribunal has held on many occasions that engaging in other legal proceedings is not a good faith explanation. In the result I concluded that it was plain and obvious that the Application was out of time and there was no good faith explanation for the delay.

4In his Request the applicant argues that the Request should be granted because:

a. The Decision is in conflict with established jurisprudence and the proposed reconsideration involves a matter of general or public importance; or

b. Other facts exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

DECISION

5Under 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.

6The Tribunal has issued Rules governing 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 June 2008). Most relevant to this Decision is Rule 26 which states:

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.

7The 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.

8As 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.

9I find that the applicant has not met the burden of establishing that the Decision is inconsistent with Tribunal jurisprudence or that there are other factors which outweigh the public interest in the finality of Tribunal decisions.

10In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

11The applicant argues that the Decision is in conflict with established jurisprudence but points to no Decisions with which it is in conflict. The Tribunal stated in Sigrist and Carson, above that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. In my view the Decision is entirely consistent with the Tribunal’s jurisprudence on delay.

12Similarly the applicant argues that there are other factors in this case which outweigh the public interest in the finality of Tribunal decision making, but points to no such factors. As important as these issues may be for the applicant they are no different than those of any other employee who is put out of their employment. However as I note above the applicant has engaged three other legal proceedings seeking to vindicate his position that he was dismissed from his employment improperly. There are no other factors which would justify a further legal proceeding commencing these many years after the events giving rise to the Application.

13Despite citing the Rules 26.5 (c) and (d) the argument of the applicant is that he was never told that he could or should file an Application. This is a new argument not made in the applicant’s initial submissions. As noted above a request for reconsideration is not an opportunity to re-argue a case. I would also observe that the Tribunal has not accepted this argument as a good faith explanation for the delay except where it is established that there was no reason for an applicant to enquire as to his rights under the Code. There is no indication here that the applicant was unaware of his rights, on the contrary he vigorously pursued them in other forums.

14For these reasons I find 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. The Request is denied.