Talos v. Grand Erie District School Board, 2014 HRTO 529

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wayne Talos Applicant

-and-

Grand Erie District School Board Respondent

INTERIM DECISION

Adjudicator: Ruth Carey Date: April 11, 2014 Citation: 2014 HRTO 529 Indexed as: Talos v. Grand Erie District School Board

WRITTEN SUBMISSIONS

Wayne Talos, Applicant Self-represented

1The applicant seeks reconsideration of the Tribunal’s Interim Decision, 2013 HRTO 1949, issued on November 26, 2013.

2The Application alleges that the respondent breached s. 5(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on the basis of age when the applicant turned 65 because his health benefits ended. The Interim Decision finds that s. 25(2.1) of the Code is a complete defence to that allegation and there is no reasonable prospect of success with respect to it unless s. 25(2.1) is found to be contrary to the Canadian Charter of Rights and Freedoms (the “Charter”).

3The Application also alleges that the respondent committed an act of reprisal contrary to section 8 of the Code by refusing to pay to employees 65 years and older a lump sum in lieu of benefits unless the applicant’s union signed an agreement saying it would not pursue legal action against the respondent with respect to the cessation of health benefits for employees reaching 65. The Interim Decision finds that the reprisal allegation has no reasonable prospect of success because an offer to give money to a group of employees that the respondent asserts are not legally entitled to it does not constitute a threat or a punishment.

4The Application continues in the Tribunal’s normal hearing process with respect to the issue of whether or not s. 25(2.1) of the Code, contravenes the Charter. This means the Application has not been finally disposed of in its entirety. Whether or not the Interim Decision of November 26, 2013, constitutes a final decision for the purposes of Rule 26.1 of the Tribunal’s Rules of Procedure, and without finding that it does, I am prepared to consider the applicant’s request for reconsideration in the unusual circumstances that exist here. I say this because if the request for reconsideration succeeds in its entirety it would be unnecessary for the Tribunal to conduct a hearing with respect to the Charter issue.

THE REQUEST

Grounds for Requesting Reconsideration

5Rule 26.5 says:

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.

6The applicant’s Request for Reconsideration replies on paragraphs a) and c) above. It includes both a narrative attached to the Request and a letter dated November 27, 2013. Both have been considered.

Preliminary Issue

7At the beginning of the narrative attached to the applicant’s Request for Reconsideration the applicant states:

In consideration of the following factors, I request that the Ontario Human Rights [Tribunal] Reconsider my Complaint registered against both the [respondent] and co-defendant, Ontario Secondary School Federation (OSSTF). [Emphasis in original.]

8The Application does not name the applicant’s union as a respondent and the applicant has never filed a Request for Order During Proceedings requesting that the Application be amended to add his union as a respondent. The Tribunal has issued a number of Interim Decisions and Case Assessment Directions which clearly identify the applicant and the respondent as the only two parties to the Application. The applicant’s union did not participate in the summary hearing that resulted in the Interim Decision of November 26, 2013. Therefore, it would not be appropriate on reconsideration to address any arguments made by the applicant alleging a breach of the Code by his union.

9If the applicant wishes to amend his Application to add his union as a respondent he should file and deliver to the respondent and the union a Request for Order During Proceedings in Form 10.

New Facts or Evidence

10Although the Request relies on the allegation that there are new facts or evidence that could potentially be determinative of the case it does not actually point to any. Rather it alleges the Tribunal failed to examine or evaluate facts and law that were before the Tribunal at the time of the summary hearing.

11As a result, I am not satisfied that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

Conflict with Established Jurisprudence or Procedure

12Similarly, neither the Request nor the letter of November 27, 2013, point to any case law or Tribunal procedure that is in conflict with the Interim Decision. The applicant simply disagrees with the interpretation of the law as set out in it.

13Therefore, I am not satisfied that the Interim Decision is in conflict with established jurisprudence or Tribunal procedure.

DECISION

14The Request for Reconsideration is dismissed.