Aceto v. Ontario (Attorney General), 2016 HRTO 161

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Aceto Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Ministry of the Attorney General and the Workplace Safety and Insurance Board Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir Date: February 3, 2016 Citation: 2016 HRTO 161 Indexed as: Aceto v. Ontario (Attorney General)

WRITTEN SUBMISSIONS

Donna Aceto, Applicant Self-represented

Introduction

1On November 24, 2015, the Tribunal issued its Decision in this Application, 2015 HRTO 1591, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2The Tribunal’s Decision found that the Application must be dismissed because it had no reasonable prospect of success and it was filed beyond the statutory time limits prescribed by section 34(2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

THE REQUEST FOR RECONSIDERATION

3In her Request for Reconsideration the applicant relies on the following reasons why the Tribunal should reconsider its Decision:

a. That the Decision request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

4The respondents were not called upon to respond to the Request.

THE LAW

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 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, last amended April 2014). 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 includes the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented 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.

ANALYSIS AND CONCLUSIONS

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

10As indicated above, the applicant relies on Rule 26.5 (c).

11In support of her Request, the applicant largely repeats arguments made orally before the Tribunal. Accordingly the issues raised in this Request were the subject of oral and written submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 (“Sigrist”) 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.

12The applicant repeats her central argument that her case is not about the decision made by the Workplace Safety and Insurance Board (“WSIB”) in 2005 but the treatment she received in particular, the allegation that the WSIB did not recognize her disability. The essence of her argument which is repeated in one way or another multiple times throughout her 84 pages of submissions is captured in the following passage:

I was not before the Tribunal to accuse WSIB of misapplying the rules of a program or misinterpreting medical documentation. That was not the purpose of my application. The purpose of my application is to accuse WSIB of discrimination because they refused to allow me my equality rights of being a handicapped person on the grounds of my mental and physical handicaps, rights that are guaranteed to me under the Code and the Constitution. WSIB committed a deliberate act of discrimination. WSIB knew I was a disabled person, both physically and mentally. My prime care-giver was a psychiatrist. WSIB attempted to reduce my disabilities to common ailments. This is another deliberate and despicable violation of my Human Rights and the Constitution. If the Human Rights Commission doesn't cover deliberate violations of discrimination and harassment then who can a disabled person turn to when they are not treated on a level playing field and have their equality rights denied them, and they are not granted there rights under the Code, Charter and the Constitution? I can't speak for anyone but myself, but I know that my government is here to protect my rights, and this incident totally disappoints me, because instead of being protected, and feeling like I belonged, I felt like an outcast, a second-class Canadian. And I sincerely hope that there haven't been other second class Canadians since the government has written their commitment to protect handicapped Canadians into the Constitution, a commitment that strengthened the rights of handicapped Canadians when the Constitution was brought home. Our Constitution tackled problems like handicapped rights and created a system that better meets the need of those not operating on a level playing field, ensuring that their needs and equality rights, along with the rights of all Canadian citizens will be protected, and that legislators powers must be exercised with respect and consideration for all individual citizens. And that equality rights are not obscure or unclear, or vague, and are a major provision in the Canadian Charter of Rights and Freedoms.

13However as I pointed out in the Decision, the WSIB did recognise that the applicant was a person with a pre-existing medical condition which constitutes a disability under the Code and considered that disability in their decision making. The WSIB might have come to a completely incorrect conclusion about her condition but that is the essential nature of the applicant’s claim – that the WSIB incorrectly assessed the impact of her pre-existing disability on the workplace injury suffered in late 2004 when it limited her entitlement to WSIA benefits.

14The applicant repeatedly asserts that she is not complaining about the WSIB’s decision but their treatment of her. But there is no allegation of adverse treatment of her other than her belief that the WSIB discounted her disability and incorrectly assessed the impact or interaction between the workplace injury and her pre-existing disability.

15The applicant objects to my describing her disability as an underlying or pre-existing medical condition. It is not clear how this characterization of her disability is material to the issues except to the extent it reflects the applicant’s misunderstanding of the basis for the WSIB’s decision. As I have said earlier the WSIB acknowledged and included in its assessment of her claim the fact that she was a person with Tourette’s Syndrome, characterizing it as a pre-existing or underlying medical condition to denote that it existed at the time of the workplace injury is not discriminatory.

16It may be that the applicant believes that because she had a pre-existing disability she was entitled to WSIA benefits because of that fact alone. This is not the case, the WSIA only compensates workers for injury and disease sustained in the workplace. It is often called on to tease out what is work related injury and impairment from other non-work related and/or pre-existing conditions and impairments. As I have said repeatedly the WSIB may have been incorrect in its assessment of the applicant but being wrong is not discrimination.

17The applicant argues that because I sat on a panel that dealt with another matter I had pre-judged her case. There is no basis to this argument and the applicant does not really try to provide any basis beyond her belief that this was the case.

18The applicant makes a great number of submissions about the Decision. She has parsed the Decision by paragraph and makes lengthy commentary about each.

19By way of a typical example of this kind of submission in the Decision, I noted as background in the Decision that the applicant applied for and received WSIB benefits for a short period of time in 2005. The applicant by way of submissions advises that she received benefits from January 6, 2005 to April 8, 2005. In the same passage, I noted that the applicant had been a good employee by all accounts. The applicant comments on this passage to elaborate on her various achievements. Neither of these points were material to the issues to be determined or the reasons for the Decision but as background to the issues to be addressed.

20The applicant argues that the Decision incorrectly records that the applicant did not appeal the WSIB’s decision in 2005. The applicant may be correct about that, it is not clear, but in any case, this fact is not material to any issues in the case.

21The applicant argued that the Decision is in conflict with established Tribunal jurisprudence but pointed to no other Decision with which it does conflict. The Tribunal also stated in Sigrist, above, 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 its submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

22The applicant also argued for the first time that she did not consider a human rights claim until sometime in 2012 or 2013 when a conversation with someone she cannot now identify spoke to her about the possibility of filing this Application. The applicant concedes that she did not make this argument at the hearing of this case. Although the Tribunal would not normally consider a submission that could have been but was not made at the oral hearing, I have considered this submission and it does not change the result. The Tribunal has held on many occasions that ignorance of one’s rights is not a reasonable excuse for delay unless the applicant can establish that she had no reason to inquire into her rights. The applicant has not made that submission and there is no indication that she was prevented from inquiring into her rights.

23In any event the Application was dismissed for two reasons, one of which was delay. The applicant’s submission even if it were accepted does not address the other basis for the dismissal of the Application.

24In conclusion, 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.