Marcinowski v. Kostryba, 2014 HRTO 1665

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aleksander Marcinowski

Applicant

-and-

Olha Kostryba

Respondent

RECONSIDERATION DECISION

Adjudicator: Paul Aterman

Date: November 18, 2014

Citation: 2014 HRTO 1665

Indexed as: Marcinowski v. Kostryba

WRITTEN SUBMISSIONS

Aleksander Marcinowski, Applicant

Self-represented

1This Decision explains why the Tribunal will not reconsider its Decision in 2014 HRTO 1577 of October 27, 2014. That Decision dismissed the applicant’s Application on the ground that it was barred by delay.

2The Decision explains a finding of fact that, as of October 12, 2012, the respondent ceased to be an employee in the workplace where the applicant also worked. That finding in turn led to a determination that any actions taken by the respondent after that date did not take place in the employment context, and did not arise in any other social area covered by the Code. As the Application was filed more than a year after the events that occurred in the workplace, and as the applicant had not provided a good faith justification for taking more than a year to file the Application, I determined that it was barred by delay.

3The applicant seeks reconsideration of that Decision. In filing the request he has indicated that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. The basis for the reconsideration request is that the finding of fact that the respondent ceased to be employed on October 12, 2012 is an error. The applicant’s submissions explain in detail why he believes that both the respondent and her employer did not intend the employment relationship to end.

4The applicant supports his submissions with two documents that show that when the respondent left her employment in October of 2012, she was replaced by an employee who was hired on a temporary basis. He maintains that these documents demonstrate that the respondent’s employment was not intended to end in October, 2012. In addition, there is a document from Service Canada which indicates that the respondent was not entitled to Employment Insurance benefits because she quit her job, rather than being fired by her employer.

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 documents the applicant relies upon all appear to have been available to the applicant before the hearing which led to his Application being dismissed. He has not explained why he did not produce any of these documents earlier. As such they are not new evidence within the meaning of the criteria for reconsideration set out above. This is a sufficient ground to dismiss the request for reconsideration.

8Moreover, none of the documents could potentially be determinative of the issue which led to the dismissal of this Application. The issue for determination was whether the employment relationship between the respondent and her employer ended on October 12, 2012. Whether the end of the employment relationship came about because the respondent quit or was fired or abandoned her employment is ultimately not material. What matters is that it ended on October 12, 2012, and the documents do not undermine that finding. Documents about the employment status of the person who replaced the respondent do not, of themselves, shed any light on the question of the respondent’s employment status. The document from Service Canada reinforces the conclusion that the respondent’s employment ended in October of 2012. In short, the documents would have made no difference to the outcome had the applicant produced them at the hearing. For this second reason the request for reconsideration is denied.

9The applicant has not shown how the Decision dismissing his Application meets any of the above criteria for reconsideration. Instead, the substance of his argument is an attempt to obtain a different finding of fact regarding the status of the respondent’s employment. In doing this the applicant is trying to reargue the issues that he originally put forward during the summary hearing. This issue was addressed in the Decision dismissing his Application. A request for reconsideration is not intended to give the requesting party an opportunity to reargue issues already considered and decided.

order

10The request for reconsideration is denied.