Flynn v. DGN Marketing Services Ltd., 2016 HRTO 462

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dianne Flynn

Applicant

-and-

DGN Marketing Services Ltd.

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: April 12, 2016

Citation: 2016 HRTO 462

Indexed as: Flynn v. DGN Marketing Services Ltd.

WRITTEN SUBMISSIONS

Dianne Flynn, Applicant

Self-represented

Introduction

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), in which she alleged discrimination in respect of employment on the basis of disability. She alleges that she was discriminated against and her employment terminated because she sustained workplace injuries and filed Workplace Safety and Insurance Board (“WSIB”) claims.

2The Application was initially deferred and, following the conclusion of related proceedings at the WSIAT, a hearing was held, following which a decision was issued dismissing the Application (2015 HRTO 1224).

3On October 15, 2015, the Tribunal received a Request for Reconsideration (Form 20) from the applicant along with written submissions. The respondent has not been called upon to file a Response to the Reconsideration Request and it has not done so.

4The applicant argues that reconsideration is warranted in this case on the grounds that there are new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier and the decision is in conflict with established jurisprudence or Tribunal procedure and the reconsideration involves a matter of general or public importance.

5This is the Tribunal’s Decision on the Request for Reconsideration.

Request for Reconsideration

6Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions:

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.

7Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration 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).

8Most relevant to this decision is Rule 26 which reads, in part, as follows:

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 and orders.

9The 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.

10As 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.

11The applicant has based her request on Rule 26.5(a) and (c). In her submissions, she reiterates that she does not agree with the respondent’s argument that the termination of her employment was part of a larger downsizing exercise. She argues that she was selected for dismissal because of her disability and because she had reported workplace injuries. She questions why she was let go when others with fewer years of service, and who she describes as less reliable employees with poor attendance records, were retained as part of the workforce. She believes that she should have been transferred to other accounts when there was a loss of business because of her lengthy tenure with the company.

12Having reviewed the Form 20 and submissions, I find that the arguments raised by the applicant are essentially reiterations of positions that she articulated during the hearing and in previous written materials. Although it is apparent that the applicant has a strongly held view that she experienced discriminatory treatment and that she lost her employment for discriminatory reasons, she has not made submissions that fall within the scope of Rule 26.5(a) or (c), and that warrant reconsideration of the Decision made to dismiss this Application. As such, I find no basis to grant reconsideration of the Tribunal’s Decision of January 12, 2016.

13The Request is denied.