HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wilbert Pauhl

Applicant

-and-

Hamilton Health Services Corporation, Canadian Union of Public Employees and its Local 7800

Respondents

RECONSIDERATION DECISION

Adjudicator: Keith Brennenstuhl

Date: May 20, 2015

Citation: 2015 HRTO 663

Indexed as: Pauhl v. Hamilton Health Sciences Corporation

WRITTEN SUBMISSIONS

Wilbert Pauhl, Applicant ) Self-represented

[1] On April 24, 2014, the Tribunal issued its Decision in this Application, 2015 HRTO 534, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

background

[2] The Tribunal’s Decision dismissed the Application because it was filed outside the limitation period provided for the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and the applicant did not establish a good faith reason for the delay.

THE REQUEST FOR RECONSIDERATION

[3] The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

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

DECISION

[4] Under 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.

[5] The 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.

6The 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.

7As 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.

[8] Under Rule 26.1, only “final” decisions qualify for a reconsideration request. In Sigrist and Carson v. London District Catholic School Board, [2008 HRTO 34](https://www.minicounsel.ca/hrto/2008/34), the Tribunal determined that even an interim decision may be “final” where it disposes of some or all of the central issues in the application. I am satisfied that the Interim Decision in the matter before me disposes of some of the central issues in the Application and, on this basis, the Tribunal’s reconsideration process is available.

[9] I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

[10] As indicated above, the applicant relies on Rule 26. He submits that the Decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

11In support of his Request, the applicant repeats arguments made before the Tribunal, and concludes that the Decision is essentially wrong and “is totally flawed and full of holes.” A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

[12] The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

[13] There is nothing before me suggesting that the applicant was entitled to but did not receive notice of the proceeding or a hearing.

[14] I am not convinced that any findings made in the Decision are in conflict with established jurisprudence.

[15] The applicant does not indicate how the proposed reconsideration involves a matter of general or public importance.

[16] It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson, above, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

[17] The Tribunal also stated in Sigrist and Carson that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that his submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

[18] In sum, 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.