Markovik v. Workplace Safety and Insurance Board, 2014 HRTO 1725

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Slave Markovik

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

RECONSIDERATION DECISION

Adjudicator: Sheri D. Price

Date: November 28, 2014

Citation: 2014 HRTO 1725

Indexed as: Markovik v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Slave Markovik, Applicant ) Self-represented

1On August 21, 2014, the applicant filed a Request for Reconsideration of the Tribunal’s July 21, 2014 Decision, 2014 HRTO 1065, in this matter, pursuant to s. 45.7(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In its July 2014 decision, the Tribunal dismissed the Application on the basis that it failed to raise an issue that was within the Tribunal’s jurisdiction to decide. In particular, the Tribunal found that the applicant was complaining about decisions made by the respondent, the Workplace Safety and Insurance Board (“WSIB”), with respect to the applicant’s entitlement to WSIB benefits and the handling of the applicant’s WSIB claim. However, the Application failed to identify an act of discrimination within the meaning of the Code allegedly committed by the respondent.

3Rule 26.5 of the Tribunal’s Rules of Procedure states that 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.

4The Tribunal has also issued a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. The Practice Direction 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.

5In his reconsideration request, the applicant asks that the Tribunal reconsider its July 2014 decision pursuant to all four grounds identified in Rule 26.5(a), (b), (c) and (d) of the Tribunal’s Rules of Procedure. However, with respect to his request under Rule 26.5(a), the applicant indicates that he is not seeking reconsideration because there are “new” facts that “could not have been obtained earlier”, but rather because “there are facts or evidence on the file (properly filed with the HRTO) that could potentially be determinative of the case and that could not reasonably have been earlier determinate or considered.” In other words, as I understand it, the applicant’s position is that the materials that he previously filed with the Tribunal establish that the WSIB discriminated against him because of disability, but the Tribunal did not consider them before dismissing the Application in July 2014.

6It is clear from the reconsideration request that the applicant strongly disagrees with the Tribunal’s decision that the Application did not identify an act of discrimination allegedly committed by the respondent. In his Request, the applicant reiterates the position taken in his previous extensive written submissions (which were considered by the Tribunal before it issued its July 2014 decision) that the respondent discriminated against him because of disability with respect to services when it cut off and/or denied the applicant’s claim for certain WSIB benefits and in the manner in which it handled the applicant’s WSIB claim.

7However, the fact that the applicant disagrees with the Tribunal’s decision is not a basis for reconsideration. Nor is reconsideration an opportunity for the applicant to appeal the Tribunal’s decision or to reargue his case. As noted in the Tribunal’s Practice Direction on Reconsideration, the Tribunal will only reconsider a decision where it is satisfied that there are compelling and extraordinary circumstances for doing so.

8In this case, the applicant has not established that any of the circumstances identified in Rule 26.5(a), (b), (c), or (d) exist in the case at hand. Accordingly, there is no basis for the Tribunal to reconsider its July 21, 2014 decision dismissing the Application. The Request for Reconsideration is dismissed accordingly.

9That said, I do wish to address a couple of points raised by the applicant in his reconsideration request.

10In his reconsideration request, the applicant complains about the fact that the Tribunal did not hold an oral hearing before deciding to dismiss his Application on July 21, 2014. The applicant contends that this was unconstitutional and in “direct collision” with s. 24(1) of the Canadian Charter of Rights and Freedom (“the Charter”), which provides that anyone whose rights under the Charter have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

11Pursuant to s. 43(2) of the Code, the Tribunal may not finally dispose of an Application within its jurisdiction without providing the parties an opportunity to make oral submissions. However, the Tribunal is not required to hold an oral hearing in cases where the Application does not raise an issue within its jurisdiction. In this case, the Tribunal found that the Application relating to the respondent’s determinations about the applicant’s entitlement to WSIB benefits and its handling of the applicant’s WSIB claim did not allege that the WSIB discriminated against the applicant within the meaning of the Code and therefore did not raise an issue within the Tribunal’s jurisdiction to decide. Accordingly, the Tribunal was not required to hold an oral hearing before dismissing the Application. Nor in my view would it have been fair, just and expeditious to require the respondent to participate in an oral hearing of an Application where it was plain and obvious that the Application did not raise allegations against the respondent that fell within the Tribunal’s jurisdiction under the Code. As for the applicant’s submission that the dismissal of his Application in the absence of an oral hearing was somehow unconstitutional, this submission has no merit.

12In his reconsideration request, the applicant also complains that I failed to deal with his argument that the WSIB infringed his rights under the Charter. While the Tribunal may have regard to the Charter in determining matters within its jurisdiction under the Code, it has no free-standing jurisdiction to determine whether a person’s rights under the Charter have been infringed. In this case, it was not necessary for me to consider the Charter in making the determination I did regarding the Tribunal’s lack of jurisdiction to deal with the matters raised in the Application. Moreover, the applicant’s allegation that the WSIB infringed his constitutional rights does not fall within the Tribunal’s jurisdiction to interpret and apply the Code.

13In his reconsideration request, the applicant also objects to the fact that the Tribunal stated, at para. 7 of its July 2014 Decision, that the applicant was alleging “that the WSIB “ignored” all of the applicant’s written and oral submissions” (emphasis added). The applicant maintains that he never had a chance to make oral submissions to the WSIB and that the Tribunal made a “false” statement when it suggested that he was complaining about the WSIB ignoring his “oral” submissions.

14In response to this, I note that in para. 14 of his June 3, 2014 submissions, the applicant did allege that the respondent ignored the applicant’s “verbal and written submissions”. However, even if the Tribunal misunderstood this and the applicant was complaining only that the WSIB had ignored his written submissions (as opposed to both written and oral submissions), this does not alter the Tribunal’s analysis with respect to the central issue, namely, whether the Application identified an act of discrimination committed by the respondent within the meaning of the Code. I would also point out that the Tribunal clearly understood that the applicant was complaining that “the WSIB failed to give the applicant an opportunity to make oral submissions before rendering certain decisions” (see para. 7 of the July 2014 decision).

15In sum, I do understand that the applicant strongly disagrees with the Tribunal’s decision that the applicant could not pursue his issues with the respondent before this Tribunal because the Application did not raise an issue under the Code. However, the applicant has not satisfied the Tribunal that the any of the criteria that might justify reconsideration pursuant to Rule 26.5 exist in this case. Accordingly, the applicant’s Request for Reconsideration is denied.

ORDER

16The Request for Reconsideration is denied.