Dupé v. Toronto Youth for Christ o/a Youth Unlimited, 2014 HRTO 1666

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Meshell Dupé

Applicant

-and-

Toronto Youth for Christ o/a Youth Unlimited

Respondent

RECONSIDERATION DECISION

Adjudicator: Paul Aterman

Date: November 18, 2014

Citation: 2014 HRTO 1666

Indexed as: Dupé v. Toronto Youth for Christ o/a Youth Unlimited

WRITTEN SUBMISSIONS

Meshell Dupé, Applicant

Self-represented

1This Decision explains why the Tribunal will not reconsider its Decision in 2014 HRTO 1351 of September 12, 2014. That Decision dismissed the applicant’s Application on the ground that it was barred by delay.

2The Application alleged discrimination with respect to employment because of race, colour and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal was also alleged.

3From November 23, 2009 to September 30, 2012 the applicant was employed on a series of fixed-term contracts by the respondent, a faith-based charity. Her job was to assist youth served by the project to enable them to develop a business plan or idea. The applicant alleged that she was subjected to racial harassment by a co-worker, that the respondent’s managers were aware of this harassment and condoned it, and that, rather than discipline the co-worker, the respondent blamed the applicant for conflict and used this as a reason to terminate her contract.

4The respondent requested dismissal on the ground that the Application was filed more than a year after the last alleged incident of discrimination. The applicant did not dispute that there was a delay but she argued that there were good faith reasons which justified her bringing the Application late.

5The respondent’s request was granted because I made findings of fact that the applicant was not impaired by her disability to an extent that it would have prevented her from bringing her Application in a timely manner.

6The applicant now requests reconsideration of that Decision. She argues 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 facts take the form of 50 pages of medical records which the applicant states show that the reason for dismissing her Application was in error.

7The request states:

I am requesting reconsideration in my case because I have obtained the medical records over 50 pages of these records. I could not access them before nor could I afford them… I could not afford to obtain the medical records, but I have obtained them and will submit them if the only way to show I was not capable of filing on time is have you review the records in detail.

8The applicant states that she has not included the records in her request because she does not want the respondent to see them, but she will do so if this is the only way in which her request for reconsideration will be granted.

9Section 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.

10The 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.

11The documents the applicant relies upon all appear to have been available to the applicant before the proceeding which led to her Application being dismissed.

12The applicant here was given two opportunities to substantiate her position that her Application should not be dismissed for delay. First the Tribunal sent her a Notice of Intent to Dismiss and directed her to set out her case on the delay issue. The respondent was not asked for submissions at that stage. The applicant provided submissions but they were not supported by the evidence which the applicant now states she has.

13The Tribunal allowed the Application to proceed at that time because it was not plain and obvious that it should be dismissed for delay.

14The respondent then filed a Response and requested dismissal of the Application for delay. The applicant did not respond to this request and the Tribunal issued a Case Assessment Direction indicating that, out of an abundance of caution and because the applicant was unrepresented, she would be given additional time to respond to the request to dismiss. The applicant again made submissions but did not include the medical evidence that she refers to in this reconsideration request.

15The applicant has the onus of showing that the new evidence could not reasonably have been obtained earlier. She has not done so. While the applicant states that she could not previously gain access to or afford to obtain these records, she does not explain what has since changed, such that she can now produce them.

16In order to succeed on this ground of reconsideration, the applicant also has to show that the new evidence could potentially be determinative of the case. The applicant has not met this burden of proof because she has not produced the documents and thus I cannot assess whether they could potentially have been determinative of the outcome of the Decision or not.

17For the above reasons I determine that the applicant has not shown that the documents could not reasonably have been obtained earlier or that they are potentially determinative of the case. The request for reconsideration is therefore denied.

order

18The request for reconsideration is denied.