Legace v. CS Wind Canada Inc., 2015 HRTO 461

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Keith Legace

Applicant

-and-

CS Wind Canada Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: April 10, 2015

Citation: 2015 HRTO 461

Indexed as: Legace v. CS Wind Canada Inc.

1On August 6, 2014, the Tribunal issued its Decision in this Application, 2014 HRTO 1703 (the “Decision”), dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

2In its Response (Form 2), the respondent argued that the Application should be dismissed due to delay, it being filed more than one year after the last possible incident of discrimination.

3On October 22, 2014 the Response was delivered to the applicant and he was directed to respond by filing a Reply addressing the delay issue. The applicant was also advised that if he did not file written submissions by the required date, the Tribunal would make its decision based only on the information in the Application and the Response, or may consider the failure to file a Reply in the circumstances as an abandonment of the Application and dismiss the Application for that reason. Although the applicant requested and was granted an extension of time to file a Reply, he never did file responding submissions and the time for doing so passed. .

4In the Decision, I dismissed this Application because the applicant was deemed to have abandoned it and because it was untimely.

DECISION

5Under 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 the 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.

6The 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 June 2008). Most relevant to this Decision is Rule 26 which states:

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.

7The Tribunal’s Practice Direction on Reconsideration 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.

8As 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.

9In his Request the applicant relied on Rule 26.5 (b). He asserts that his email account was hacked and he was ill in hospital. The applicant does not provide any further information about these issues and does not say what these alleged events relate to. Otherwise the applicant’s submissions do not address the issues in dispute. In particular, the applicant makes no argument about the determination in the Decision that the Application was out of time.

10I am not satisfied that the applicant has established sufficient grounds to reconsider the Decision. He asserts that he did not receive proper notice of the issue to be addressed, but that is clearly not the case. The applicant clearly received the respondent’s Response and the Tribunal’s Direction that he respond to it. He asked for an extension of time in order to obtain counsel. The request was granted. However, in the end, the applicant did not respond to the Response and the issues were finally determined including that the Application was filed out of time. He now claims that his email was hacked and that he had medical issues. But he provides no explanation for how the email issue affected his ability to respond to the issue at hand and has similarly provided no explanation for how the medical issue was a barrier or any medical documentation to support it. This new assertion is also different than the basis for the request for an extension of time he made on October 24, 2014. I am not satisfied that either of these factors prevented the applicant from addressing the delay issue as directed.

11I also note that the applicant made no submissions in response to the determination in the Decision that the Application was out of time. Accordingly there is no basis to reconsider that aspect of the Decision.

12For these reasons I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.