Boyd v. McMaster University, 2015 HRTO 1472

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Boyd

Applicant

-and-

McMaster University and Unifor Local 5555

Respondents

RECONSIDERATION DECISION

Adjudicator: Naomi Overend

Date: November 3, 2015

Citation: 2015 HRTO 1472

Indexed as: Boyd v. McMaster University

WRITTEN SUBMISSIONS

Susan Boyd, Applicant

Karen J. Sanchez, Counsel

Introduction

1The applicant filed an Application on July 7, 2015, alleging discrimination in employment, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application contains allegations culminating in what she states was a discriminatory lay-off that took place on February 11, 2014.

2On July 28, 2015, the Tribunal sent a Notice of Intent to Dismiss (“NOID”) for delay. The applicant filed submissions in response to the Notice on August 31, 2015. The Tribunal subsequently dismissed this Application as untimely on September 21, 2015 (2015 HRTO 1255).

THE REQUEST FOR RECONSIDERATION

3The applicant submitted a Request for Reconsideration on the basis that:

a. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general public importance; and

b. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

DECISION

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

5The Tribunal has issued Rules of Procedure, which govern such requests, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). Rule 26 states in part:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

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.

6Reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so.

7The applicant argues that her Application, which was filed on July 7, 2015, was not filed outside the one-year time limit because there were ongoing events involving an internal investigation conducted by the respondent. This investigation concluded two days after she filed her Application.

8In the Decision under reconsideration, I stated at para. 7:

This Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. Likewise, the Tribunal has applied this reasoning to internal investigations as well. See Agyei-Abankwa v. University of Windsor, 2012 HRTO 92. There was nothing to prevent the applicant from filing a separate human rights Application even while pursuing her grievance or the internal investigation.

9In her reconsideration submissions, the applicant asserts that both cases cited in the above passage are factually distinguishable from her case, and that in Agyei-Abankwa, the Tribunal relied on the fact that the applicant unreasonably awaited an investigation for an extended period of time. However, the principle that an applicant must file an application, even where other proceedings are ongoing is well-established in cases decided by this Tribunal. This is so, even where the other proceeding is an internal investigation: See Leizer v. Knight, 2013 HRTO 1652; Tuquaba v. University of Ottawa, 2013 HRTO 201; and Poole v. Trent University, 2011 HRTO 2086.

10The applicant has failed to establish that the Decision under reconsideration is in conflict with established case law. Moreover, she has not set out other factors that outweigh the public interest in the finality of Tribunal decisions. Accordingly, I see no basis for exercising my discretion to reconsider my earlier Decision.

order

11The Request for Reconsideration is dismissed.