Shaw v. Bombardier Transportation, 2016 HRTO 18

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelso Shaw

Applicant

-and-

Bombardier Transportation

Respondent

RECONSIDERATION DECISION

Adjudicator: Ken Bhattacharjee

Date: January 6, 2016

Citation: 2016 HRTO 18

Indexed as: Shaw v. Bombardier Transportation

WRITTEN SUBMISSIONS

Kelso Shaw, Applicant

Self-represented

Introduction

1The purpose of this Reconsideration Decision is to address (1) the applicant’s Request for Reconsideration of the Tribunal’s Decision, 2015 HRTO 1132, which dismissed the Application, and (2) his request for anonymity in this proceeding.

BACKGROUND

2On June 4, 2015, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3On July 24, 2015, the Tribunal issued the applicant a Notice of Intent to Dismiss (“NOID”), which informed him that the Application appears to be outside of the Tribunal’s jurisdiction because, among other things, it was filed outside the one-year time limit in s. 34(1) of the Code. The Tribunal directed the applicant to provide written submissions in response to this issue.

4The applicant filed several sets of written submissions in response to the NOID, but none of them squarely addressed the timeliness issue.

5On August 26, 2015, the Tribunal issued a Decision, 2015 HRTO 1132, which dismissed the Application, on a preliminary basis, on the basis of jurisdiction because it was untimely.

6On September 13, 2015, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. He also requested that he be anonymized in the original Decision and this Reconsideration Decision. He subsequently filed several additional sets of written submissions in support of these requests.

ANALYSIS

Request for Reconsideration

7Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal rules.

8Rule 26.5 of the Tribunal’s Rules of Procedure states that 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.

9The Tribunal has also issued a Practice Direction on Reconsideration to provide guidance to the community on the nature of the reconsideration process. The Practice Direction states, in part:

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.

10In his Request for Reconsideration, the applicant indicated that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5 a) and d). However, in his submissions in support of his Request, he did not clearly explain how his Request falls within the criteria set out in Rule 26.5 a) and d). Instead, he repeated the same arguments that he made in his written submissions in response to the NOID, and made new arguments that he could have made, but did not make, in his written submissions in response to the NOID. Reconsideration is not available simply because a party disagrees with the Tribunal’s Decision, and it is not an opportunity for a party to reargue the case.

11Accordingly, the applicant’s Request for Reconsideration is dismissed.

Request for Anonymization

12Rule 3 of the Tribunal’s Rules provides for open justice, subject to limited exceptions:

3.10 The Tribunal’s hearings are open to the public, except when the Tribunal determines otherwise.

3.11 The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

3.12 All written decisions of the Tribunal are available to the public.

13Furthermore, in C.M. v. York Region District School Board, 2009 HRTO 735, the Tribunal stated at para. 20:

(…) An open justice system is a fundamental principle of a free and democratic society, so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. Moreover, the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society. It is important for there to be public scrutiny when respondents [are] found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld. I agree with the respondents that it is a serious matter to be accused of breaching the Code, which may also cause stress and stigma. Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured that they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particular parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.

14Based on the above principles, the Tribunal has issued a Practice Direction on Anonymization of HRTO Decisions, which provides that the Tribunal may anonymize the name of a party to protect the confidentiality of personal or sensitive information where it is appropriate to do so, however, such an order is only made in exceptional circumstances.

15In his submissions, the applicant requested that he be anonymized in the original Decision and this Reconsideration Decision because both Decisions will be accessible through an internet search using his name, which will jeopardize his chances at finding work, and may result in further loss of employment in the future.

16In my view, the principle of open justice outweighs the applicant’s interest in anonymity in this case. The original Decision and this Reconsideration Decision contain no personal or sensitive information, and it would be a significant departure from the Tribunal’s jurisprudence to grant his request for the reasons that he identified.

17Accordingly, the applicant’s request for anonymity in this proceeding is dismissed.

ORDER

18The Tribunal therefore makes the following orders:

1. The applicant’s Request for Reconsideration is dismissed; and

2. The applicant’s request for anonymity in this proceeding is dismissed.