Vassell v. Revera Long Term Care Inc., 2015 HRTO 557

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Audrey Vassell

Applicant

-and-

Revera Long Term Care Inc. and Elizabeth Bradshaw

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: May 4, 2015

Citation: 2015 HRTO 557

Indexed as: Vassell v. Revera Long Term Care Inc.

1The applicant seeks a reconsideration of Decision 2015 HRTO 343, dated March 17, 2015 (“the Decision”).

2In the Application, the applicant alleged that she experienced reprisal for having filed an earlier Application with this Tribunal. The alleged reprisal related to an incident involving a patient. The respondents determined that the applicant had done an improper transfer of the patient and that he had suffered a broken leg as a result. The applicant’s employment was terminated as a result of this incident. The applicant denied that she was responsible for this incident and alleged that an in charge nurse was responsible. The applicant alleged that she was blamed for the incident in reprisal. The Application also alleged that the respondents failed to accommodate a disability over a two day period in October 2010.

3After several days of hearing and after having heard the applicant’s evidence and evidence from the respondents, the allegation of reprisal was dismissed as having no reasonable prospect of success.

4The allegation regarding the events in October 2010 was dismissed with a finding that the respondent did not discriminate against the applicant when she was not allowed to switch floors from the first floor to the third floor on the two days in question. A primary reason for this was that the applicant had signed Minutes of Settlement in January 2008 following a grievance in which the issue of what floors the applicant could work on was a central issue. The Minutes included a provision that the applicant might be “assigned to other floors as needs arise”. The applicant had not provided any medical information to indicate that she could not work on the first floor in the time after the Minutes were signed.

5The Request for Reconsideration (“the Request”) appears to relate only to the issue of whether there was a failure to accommodate on the two days in October 2010.

6The Request indicates that the applicant had medical information relevant to her medical restrictions that was not produced at the hearing. As I understand the Request, she suggests that the reason the information was not produced was that the applicant felt that the respondent should have produced it. The Request suggests that at the end of the hearing, I told the respondent that there was no need to provide medical confirmation of any change in the applicant's restrictions. I am not clear what the applicant means by this.

7The applicant has provided information about her medical condition and restrictions with the Request. Apart from the idea that the respondent should have produced this information, it is not clear why this information was not provided in advance of the hearing. I do not recall the conversation that the applicant alludes to in the Request but I do not think I suggested that the applicant could not or should not provide relevant medical information about her condition and restrictions.

8I do note that the large majority of the hearing, and the primary focus of the parties, was on the other issues in the Application, and to a minor degree on the events on the two days in October 2010.

9As noted in the Decision, the applicant appears to have agreed in 2008 that she could be assigned to other floors, including the first floor. If her restrictions changed after that so that she could not work on the first floor, she had a positive obligation to make that known to the respondents.

10The applicant suggests that other relevant documents were withheld by the respondent, but she does not identify what these documents are. I do not recall hearing from the applicant that the respondent was withholding documents relevant to the October 2010 allegations. I do recall that the applicant made a number of requests for disclosure of evidence in relation to the other issues in the Application.

11The information that the applicant has now provided concerns a number of assessments that were done in 2006. It is not clear how these assessments relate to the applicant's restrictions at the time of the Minutes of Settlement in 2008 or her restrictions in October 2010. In any event, this is obviously not new evidence that was not available at the time of the hearing.

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 of Procedure:

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.

13Rule 26 of the Tribunal’s Rules of Procedure 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.

14The Tribunal’s Practice Direction on Reconsideration states:

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.

15I conclude that the applicant has not established that any of the criteria that justify re-opening a final decision of the Tribunal exist in this case. For this reason, the Request for Reconsideration is denied.