Grant v. Bombardier Inc., Bombardier Commercial Aircraft, 2016 HRTO 106

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Malcolm Grant

Applicant

-and-

Bombardier Inc., Bombardier Commercial Aircraft

Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw

Date: January 22, 2016

Citation: 2016 HRTO 106

Indexed as: Grant v. Bombardier Inc., Bombardier Commercial Aircraft

WRITTEN SUBMISSIONS

Malcolm Grant, Applicant

Self-represented

Introduction

1On December 3, 2015, the Tribunal issued its Decision, 2015 HRTO 1644, finding that the respondent had not discriminated against the applicant on the basis of disability. On January 3, 2015, the applicant filed a Request for Reconsideration of the decision (“request”).

THE REQUEST FOR RECONSIDERATION

2The applicant’s reasons for requesting reconsideration are:

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; and

b. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

3The applicant submits the results were “procedurally unfair”. Given the applicant’s arguments, I have treated this as an assertion by the applicant of a denial of natural justice.

the law

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 of Procedure, which govern 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, last amended April 2014). Rule 26 states in part:

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.

8The Tribunal also has stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application 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.

decision

9The applicant relies on Rule 26.5(c) and (d). I deal first with the applicant’s assertion that there was a denial of natural justice, which falls under Rule 26.5(d).

10The applicant alleges that he intended to respond to assertions made by the respondent’s lawyer during the hearing, but that I denied him the opportunity to do so. He also alleges the hearing was abruptly terminated before the allotted time had expired and that he tried to intervene but was unable to do so.

11The applicant further refers to an August, 2015 hearing in which I apparently advised the applicant he should let his lawyer do the talking, and he submits that the exchange he had with me was not positive. This August, 2015 hearing was the originally scheduled date for the summary hearing, but became instead a preliminary hearing with respect to an issue of document production in advance of the summary hearing. After the parties made their submissions with respect to the issue of document production, the hearing was adjourned so that I could decide that preliminary issue first. The summary hearing then was held in September, 2015.

12The applicant also takes issue with the fact that apparently during the preliminary hearing in August, 2015 he was able to go off the line and speak to his lawyer before the hearing concluded, but was not afforded this opportunity in the September, 2015 hearing.

13I note that the applicant at both the August and September, 2015 hearing was represented by a lawyer. Both she and the respondent’s lawyer were afforded the opportunity to make submissions. At no time did I deprive the applicant of an opportunity to discuss matters privately with his lawyer before the September, 2015 hearing concluded. Neither the applicant nor his lawyer made such a request.

14With respect to the applicant’s submission that the hearing concluded abruptly, it concluded after the applicant’s and respondent’s lawyer made their initial oral submissions and the applicant’s lawyer made oral reply submissions, all of which were in addition to extensive written submissions, on which I also based my decision. The fact that the hearing concluded before the “allotted time” is irrelevant. In fact, in the April 20, 2015 Case Assessment Direction in which the summary hearing was directed, the following information was included:

Although scheduled for a half-day, not all preliminary hearings take a half day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.

15The applicant in his request also includes what he refers to as “Points Not Rebutted in the Teleconference Hearing”. For the same reasons as set out above, including that the applicant was represented by a lawyer who had a full opportunity to make extensive oral and written submissions, this is not a reason to grant the request for a reconsideration. The applicant was not denied natural justice.

16The applicant clearly disagrees with my decision. However, he simply attempts to re-argue his case by raising issues that in part already were raised, and also by alleging that I made errors. Not only has he not included a claim that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, as set out in Rule 26.5(a), but if he had, the facts he sets out in his request do not change my decision.

17With respect to the applicant’s submission that I made a factual error or errors in my decision, what the applicant calls a factual error in fact is his disagreement with my decision.

18The applicant provides no submissions with respect to how my decision is in conflict with established case law or Tribunal procedure or how the proposed reconsideration involves a matter of general or public importance.

19The applicant’s request clearly is an attempt to appeal this decision, which is not the purpose of a reconsideration request, as is set out in the Tribunal’s Practice Decision on Reconsideration.

20In sum, I find that the applicant has not established the existence of any factors as set out in Rule 26.5(c) and (d) that would lead to a reconsideration of my decision. The Request is denied.