Horner v. Accenture Business Services for Utilities, 2016 HRTO 535

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Horner

Applicant

-and-

Accenture Business Services for Utilities

Respondent

RECONSIDERATION DECISION

Adjudicator: Laurie Letheren

Date: April 22, 2016

Citation: 2016 HRTO 535

Indexed as: Horner v. Accenture Business Services for Utilities

WRITTEN SUBMISSIONS

David Horner, Applicant

Self-represented

Introduction

1The applicant filed an Application in which he alleges, among other things, that he experienced discrimination in being terminated and through interpretation of his pension payments on the basis of age and creed.

2On December 10, 2015, the Tribunal held an in-person Preliminary Hearing. The issues addressed at the Preliminary Hearing were whether the Application should be dismissed in whole or in part on the basis that the applicant has signed a full and final release with respect to the same subject matter as that of the Application; or on the basis that the Tribunal does not have jurisdiction to hear the Application as it was filed more than one year after the date of the last alleged incident of discrimination.

3There is no dispute that the parties had signed a termination agreement and that the applicant had signed a full and final release on April 24, 2014. The release contains the statement that the applicant warrants he has no further claims under the Code.

4The applicant claimed that the agreement and release did not cover the allegations he was making about the discrimination he experienced as a result of his employment termination and in the way the pension was calculated. He also claimed that the release was not binding on him because the respondent had made fraudulent misrepresentations and because he may have lacked the capacity to understand and appreciate what he was signing.

5On March 3, 2016, the Tribunal issued Decision 2016 HRTO 268. The Tribunal determined that there was no evidence to support a finding that the respondent had made any fraudulent misrepresentations to the applicant about the pension plan. The applicant conceded that he had understood the terms and meaning of the release and termination agreement. The Tribunal determined that the parties were bound by the agreement and the applicant was bound by the release. The applicant had signed a release that stated that he agreed he had no further claims under the Code against the respondent for or arising out of his employment or the termination of that employment. There was no dispute that the pension arose out of his employment and termination.

6Having found that proceeding with the Application would be an abuse of process, the Tribunal found that it did not have to address the timeliness issues.

7The Tribunal dismissed the Application on the basis that to allow the Application to proceed would be an abuse of process.

8On March 31, 2016, the applicant filed a Request for Reconsideration of Decision 2016 HRTO 268.

ANALYSIS

9Section 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.

10Rule 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.

11The 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:

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.

12As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the power to reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the consideration of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

13On the applicant’s Request for Reconsideration he checked off the following reasons why he is making the Request:

• 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; and

• other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions

14The applicant submits that the Tribunal’s process of holding a Preliminary Hearing to determine issues of potential abuse of process when the applicant has signed a release, combined with inadequate allocation of resources for this Preliminary Hearing, created an unfair and biased process for the applicant. He states that the process did not allow for proper adjudication of his complex and nuanced Application. The applicant provided no details on how Decision 2016 HRTO 268 was in conflict with established jurisprudence or Tribunal procedure. His submissions only raise issues with the Tribunal’s established procedure to hold Preliminary Hearings.

15The applicant further submitted that the flawed logic of Decision 2016 HRTO 268 means that it is not in the public interest to have it stand.

16He argues that the Tribunal’s findings on whether the respondent made fraudulent misrepresentations are incorrect because it did not accept all the arguments made at the hearing and in the documents he filed in response the Request for dismissal. He also submits that the Tribunal’s conclusion that there was no evidence to support a finding that the respondent had acted in a way that could be considered to be fraudulent misrepresentation is flawed and based on false conclusions.

17The applicant repeats many of the submissions he made in his oral and written submissions for the Preliminary Hearing and has also included a number of new arguments that he had not previously made.

18It is apparent that the reason the applicant has filed the Request for Reconsideration is that he disagrees with the procedure through which his Application was dismissed and the conclusions the Tribunal reached in its reasons for the dismissal. For the most part, the applicant is attempting to re-argue his Response to the Request for Dismissal.

19As I have indicated above, the Tribunal’s reconsideration power is discretionary and does not represent an opportunity for the applicant to reargue his case.

ORDER

20The Request for Reconsideration is denied for the reasons set out above.