Witkowicz v. University Health Network, 2015 HRTO 891

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pawel Edward Witkowicz

Applicant

-and-

University Health Network

Respondent

-and-

Canadian Union of Public Employees and its Local 1156

Intervenor

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle

Date: July 6, 2015

Citation: 2015 HRTO 891

Indexed as: Witkowicz v. University Health Network

WRITTEN SUBMISSIONS

Pawel Edward Witkowicz, Applicant

Self-represented

Introduction

1On November 13, 2014, the Tribunal issued its Decision in this Application, Witkowicz v. University Health Network, 2014 HRTO 1650, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

background

2The Tribunal’s Decision found as follows:

• The applicant’s union filed a grievance on his behalf, raising the same facts and human rights issues which the applicant sought to put before the Tribunal.
• The grievance was settled and a consent order was issued by the mediator/arbitrator, on November 23, 2012, providing among other things, a lump sum payment and access to retirement benefits following “nominal reinstatement” of his employment with the respondent. The applicant accepted and received the benefit of those provisions.
• The applicant submitted that he did not fully understand the terms of the grievance settlement which he signed.
• The Tribunal weighed the evidence provided and determined that the evidence did not establish that the applicant was unable to understand the settlement discussions and agreement, it determined that the terms of the settlement had been explained to him, and that he accepted the terms of the settlement.
• The Tribunal determined that the grievance proceedings which after settlement discussions ended with a consent order, appropriately dealt with the substance of the Application.
• Accordingly, the Application was dismissed pursuant to section 45.1 of the Code.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reason why the Tribunal should reconsider its Decision:

a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably been obtained earlier.

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 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 applicant’s Request for reconsideration was submitted after the 30-day period contemplated by Rule 26, but he indicates that this was due to reasons of poor health, and provides some detail in that regard. The matter of delay of the applicant’s Request for reconsideration is not addressed here and the reconsideration request is denied for the reasons which follow.

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.

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

10As indicated above, the applicant relies on Rule 26.5(a). With his Request for reconsideration, he submitted a list of documents which he originally provided to the Tribunal after the hearing date. Nonetheless, the documents include correspondence commencing in 2012, which attest to the fact that the applicant has abused substances and has received treatment for it They also include letters from the applicant himself, two dated before the final day of hearing in this matter, in which he refers to friends he says saw him on November 23, 2012, but whom he did not call as witnesses at the hearing. It is not evident that any of this documentation could not have been produced earlier, nor do they indicate new facts or evidence that could potentially be determinative of the case. There was no dispute between the parties that the applicant had abused substances and had received treatment for substance abuse. The decision of the Tribunal turned on the November 23, 2012 mediator/arbitrator’s consent order disposing of the grievance which dealt with the same facts and human rights issues as the Application to the Tribunal, and the Tribunal decision dealt with events related to that order. The applicant’s history of substance abuse was never disputed, and the Tribunal made a factual finding regarding the events November 23, 2012, leading to a finding that the substance of the Application had been appropriately dealt with by the consent order.

11In short, 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.

12In 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 this Request amounts to a repetition of argument on issues already fully canvassed before the Tribunal.

13In sum, I find that the applicant has not established the existence of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.