HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zoran Vasileski Applicant
-and-
Canadian Union of Public Employees, Local 5167 Respondent
RECONSIDERATION DECISION
Adjudicator: Paul Aterman
Indexed as: Vasileski v. Canadian Union of Public Employees, Local 5167
WRITTEN SUBMISSIONS
Zoran Vasileski, Applicant
Self-represented
1This Decision explains why the Tribunal will not reconsider its earlier Decision to dismiss the applicant’s Application. On April 4, 2014, in Decision 2014 HRTO 469, I determined that the Application had no reasonable prospect of success.
2Section 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.
3The Tribunal’s Practice Direction on Reconsideration states the following:
Parties may ask the HRTO to reconsider a final decision. The HRTO may also reconsider a decision on its own initiative where it considers it appropriate.
Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.
The rules for reconsideration are found in Rule 26 of the Rules of Procedure. A request for reconsideration will only be granted if the request meets one of the requirements in Rule 26.5.
Examples of situations where the HRTO has refused a request for reconsideration are where:
the request asks for review of an interim decision which does not finally decide the party’s rights or interests;
the request repeats arguments the party has made at the hearing or in written submissions;
a party disagrees with and wishes to challenge a finding of fact, including findings made about the credibility of witnesses;
a party wishes to raise new arguments that were not made, but could have been made at the hearing or in written submissions;
a party received notice that an application could be dismissed as abandoned if steps were not taken, but did not follow the Tribunal’s directions by the deadline.
Examples of situations where the HRTO has reconsidered its decision are:
where a party, through no fault of its own, did not receive notice of a hearing or request for submissions; or
where exceptional factors exist that outweigh the public interest in the finality of decisions including inconsistencies in the HRTO’s case law.
4The Practice Direction also explains that in most cases the Tribunal will assign a request for reconsideration to the adjudicator who made the original Decision. The applicant asks that this not be done in his case, but he provides no reasons why. I assume it is because he thinks I did not act fairly in deciding the issues he objects to. I address this argument below.
5The Decision which is the subject of the applicant’s request resulted from a summary hearing. The applicant argues in paragraphs 1-10 of his submissions that the way I conducted the summary hearing breached principles of natural justice because he was not given an opportunity to fully present his case. In support of this he states that the summary hearing was scheduled for 3 hours but lasted only about 40 minutes; that I interrupted his presentation and deviated from the order of proceeding that I had told the parties at the start of the hearing would be followed; and that the respondent was not called upon to make submissions.
6The applicant is correct that the summary hearing lasted for about 40 minutes rather than three hours. The Tribunal regularly schedules telephone hearings in half-day blocks of three hours. That does not mean that it has to use all the time that is set aside on the schedule. It need only use as much time as is necessary to hear the arguments of the parties on the issues that it determines are needed in order to decide the matter it is dealing with.
7The applicant is also correct that I interrupted his presentation. I did so in order to focus his submissions on the essential questions in the summary hearing, namely whether there was any evidence that could support the applicant’s theory of the case. It is appropriate and lawful for the Tribunal to proactively identify the issues which need to be determined and to direct the parties to focus on those issues.
8As the applicant did not point to any direct evidence of reprisal during the summary hearing, I directed him to address the issue of whether there was any indirect evidence that would support the drawing of an inference that a reprisal had occurred. I gave the applicant ample opportunity to make submissions on this issue. In doing so I made it clear that I had read his Application and Reply, and that I would not be assisted by him repeating the facts that he had set out in those two documents. Rather, I asked him to explain to me what evidence supports his theory that there was a reprisal by the union. After he had concluded his submissions I asked the applicant if he had anything further to add. He made further submissions and when he concluded I again asked him if he add anything else to add. At no point during the hearing did he raise a concern that he was not being allowed to present his case.
9The applicant is correct that I did not call upon the respondent to make submissions. I determined that there was no need to. It is both appropriate and lawful not to require a responding party to make submissions if no purpose would be served in doing so.
10For the above reasons I conclude that there was no breach of natural justice in the conduct of the summary hearing. This argument is rejected.
11Paragraphs 11-18 of the applicant’s submissions on reconsideration are an attempt to reargue his case. As is indicated in the Practice Direction, the purpose of the reconsideration process does not include allowing parties to reargue the issues that have already been considered and decided. For these reasons I conclude that there is no basis to reconsider the Decision in relation to the issues set out in paragraphs 11-18.
12Paragraphs 19-25 argue that I failed to consider a post-hearing submission that the applicant sent to the Tribunal after the summary hearing concluded. The Tribunal has no obligation to consider unsolicited submissions that are provided after a hearing has concluded. In any event, I have read the applicant’s submission and it simply repeats and expands on arguments that he made during the summary hearing. It does not provide any factual basis for drawing an inference that supports his allegation of reprisal, as it consists simply of the applicant’s interpretation of the position that the union took during the mediation of the grievance the union filed on behalf of the applicant. For these reasons this argument for reconsideration is rejected.
13Paragraphs 26-27 argue that I was biased in my decision-making, however the example cited in support of this argument is that the applicant disagrees with my conclusions about how the union acted in handling the grievance that it filed on his behalf. In doing so the applicant is simply trying to reargue an issue that I considered and decided. As noted above, this is not a basis for reconsideration.
14Finally, in paragraph 28 the applicant argues for reconsideration on the ground that the original Decision was arrived at unfairly. He says that the Tribunal, because of its mandate under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), is the last place where unfair decisions should be permitted to stand. He maintains that his request raises a matter of general or public importance because it is a matter of general or public importance that unfair decisions be corrected. I understand that the applicant disagrees with the Decision and thinks it was arrived at through an unfair process. However, I have explained above why I do not think there is any basis to reconsider the Decision.
15While the outcome is obviously of importance to the applicant personally, every reconsideration request the Tribunal receives is important to the party making it. The applicant has not pointed to any issues that raise questions of broader significance than the matters raised between the parties to this particular Application. For these reasons I reject this argument for reconsideration.
order
16The request for reconsideration is denied.
Dated at Toronto, this 15th day of May, 2014.
“Signed By”
Paul Aterman
Vice-chair