Karagias v. The Corporation of Norfolk County, 2015 HRTO 193

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Theodore Karagias

Applicant

-and-

The Corporation of Norfolk County, Kandy Webb, Keith Robicheau, Patti Moore, Jill Steen, Malcolm Lock, Sandy Stevens, Cathy Lanni, Glen Steen and Karen Bougher

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson

Date: February 11, 2015

Citation: 2015 HRTO 193

Indexed as: Karagias v. The Corporation of Norfolk County

WRITTEN SUBMISSIONS

Theodore Karagias, Applicant

Self-represented

The Corporation of Norfolk County, Kandy Webb, Keith Robicheau, Patti Moore, Jill Steen, Malcolm Lock, Sandy Stevens, Cathy Lanni, Glen Steen and Karen Bougher

Thomas Agnew, Counsel

Introduction

1On October 6, 2014, the Tribunal issued a Decision in this Application, 2014 HRTO 1484, dismissing the Application on the basis that the applicant was deemed to have abandoned the Application. The applicant has asked the Tribunal to reconsider its Decision dismissing the Application as abandoned.

BACKGROUND

2This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on May 24, 2013.

3In Interim Decision 2013 HRTO 1696, dated October 8, 2013, the Tribunal indicated that it appeared that there was some overlap between the facts and human rights issued covered by the Application, and those referred to in a union grievance against the applicant’s employer who is named as the organizational respondent in the Application. The Tribunal therefore deferred the Application, pending completion of the grievance process.

4On July 21, 2014, the Tribunal wrote to the applicant. The applicant was directed to inform the Tribunal in writing, within 30 days of the date of the letter, whether the grievance process remained ongoing and, if possible, to indicate when it was expected to be completed. The letter also indicated that a failure to provide the requested information, as directed, might result in the Tribunal dismissing the Application as abandoned.

5As of October 6, 2014, the applicant had not responded to the Tribunal’s July 21, 2014 correspondence, and the time for doing so had passed. The Tribunal’s correspondence was sent to the applicant at the address provided in the Application and was not returned as undeliverable. In the circumstances, the Tribunal issued a Decision deeming the applicant to have abandoned the Application, and dismissing the Application on that basis.

RECONSIDERATION REQUEST

6On October 30, 2014, the applicant filed a Request for Reconsideration (“Request”). In his Request, the applicant explains that he did not respond to the Tribunal’s July 21, 2014 correspondence, which required a response by August 20, 2014, because he wanted to wait until after an August 13, 2014 grievance arbitration date to respond. He did not know if the grievance would be resolved, or another arbitration date would be set.

7The applicant also explains in his Request that, after the August 13, 2014 arbitration date, he decided to abandon his Application, in good faith that his employer was moving him to a new department and he would be back to work. He explains that he and the union agreed that it was fine to wait until after a manager returned from holidays on August 18, 2014, regarding the proposal of moving the applicant to a new department.

8The applicant also submits that, on August 27, 2014, the employer was still discussing the plan to move the applicant to a new department, and, on October 16, 2014, the employer communicated that the plan likely would not happen. The applicant submits that, in his opinion, the employer deliberately waited until it received written notification that this Application was abandoned, before informing the union that it was not moving forward with the plan to move him to a new department. He also submits that the employer knew that he had not responded to the Tribunal.

9In a response to the applicant’s Request, dated November 12, 2014, the respondents submit that at no time did the applicant, his union or anyone else advise the organizational respondent that the applicant was choosing to abandon his Application, or that he intended to abandon his Application in the hopes that a particular settlement would ultimately be agreed to. They submit that the applicant acknowledges that he made a personal choice to abandon his Application, without advising the respondents that he was doing so, on the assumption that a particular settlement would ultimately be reached. The organizational respondent submits that it made no commitment, other than to agree to discuss a possible settlement.

10The respondents submit that the applicant has not claimed that he did not receive the Tribunal’s July 21, 2015 correspondence, and that he was, therefore, aware that his Application could be dismissed if he did not respond to the Tribunal within 30 days of the date of the letter. They submit that the applicant made a personal choice to abandon his Application, rather than respond to the Tribunal’s July 21, 2014 letter, and that, in the interests of finality, they should be able to rely on the Tribunal’s Decision.

11In reply submissions dated December 16, 2014, the applicant reiterates that he abandoned the Application in good faith, as he believed his employer would consider the option of moving him to a new department.

DECISION

12Under 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.

13The Tribunal has issued Rules governing 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 April 2014). Most relevant to this Decision are Rules 26.1 and 26.5 which state:

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.

14The Tribunal’s Practice Direction on Reconsideration explains that reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. The Practice Direction also provides examples of situations where the Tribunal has refused a request for reconsideration, such as where 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.

15As is evident from the above, reconsideration 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. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

16In his Request for Reconsideration, the applicant relies on Rule 26.5(a) of the Tribunal’s Rules; however, for the following reasons, I find that there is nothing before me to suggest that any of the threshold criteria justifying reconsideration have been met.

17I am not satisfied that the applicant has raised any new facts or evidence in his submissions that could potentially be determinative of the case. It appears from the parties’ submissions that, at the time the applicant was required to respond to the Tribunal’s July 21, 2014 letter, the applicant and the organizational respondent were engaged in settlement discussions regarding a particular plan to move the applicant to a new department. It is also clear from the parties’ submissions, however, that at the time no final agreement concerning that particular proposal had been reached.

18The applicant is not alleging that he did not receive notice that the Tribunal may dismiss his Application, absent a response from him. The applicant acknowledges that he received the Tribunal’s July 21, 2014 letter, and that he did not respond as directed by the Tribunal. He explains that, after an August 13, 2014 arbitration date concerning his union grievance, he decided to abandon his Application.

19The applicant does not raise any facts that would speak to the other criteria set out in Rule 26.5.

20In my view, the applicant has not established any of the criteria set out in Rule 26.5 of the Tribunal’s Rules that would justify reconsideration of the Tribunal’s Decision dismissing the Application on the basis that it was deemed to have been abandoned.

21The Reconsideration Request is denied.