HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Emy Bonnici
Applicant
-and-
United Food and Commercial Workers Local 1006A
Respondent
RECONSIDERATION DECISION
Adjudicator: Esi Codjoe
Indexed as: Bonnici v. United Food and Commercial Workers Local 1006A
WRITTEN SUBMISSIONS
Emy Bonnici, Applicant
Anton Bonnici, Representative
Introduction
1On September 8, 2017, the Tribunal issued its Decision, 2017 HRTO 1171, dismissing the Application. The applicant asks that the Tribunal reconsider its Decision.
background
2The applicant filed an Application in which he alleged discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
3The Tribunal determined that the Application should be dismissed because it had no reasonable prospect of success.
the law
4Section 45.7 of the Code provides that the Tribunal may, at the request of a party, or on its own initiative, reconsider its decisions in accordance with the Tribunal’s Rules. The section reads as follows:
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 Rules and a Practice Direction provide guidance regarding the Tribunal’s reconsideration powers. Rule 26 on Reconsiderations reads as follows:
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 reads, in part, as follows:
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 change the way it presented its case.
7Given the Tribunal’s Rules and Practice Direction, the Tribunal will only reconsider a decision where there are compelling reasons to do so. Therefore, a reconsideration is not an opportunity to restate positions, make submissions that could have been made at the hearing, or re-argue a case.
analylsis
8The applicant provided submissions that reiterated his previous arguments as well as some new allegations that did not form a part of his Application. These new allegations are that the union continues to treat him unfairly and that he is experiencing ongoing problems with his employer.
9The Tribunal considered all the information that the parties provided in support of the Application and for the Summary Hearing. To that end, I advised the parties at the commencement of the hearing that I reviewed their submissions. However, as outlined in the Decision, not all of the information that was submitted could appropriately be considered in this case. This Application is about a specific incident that occurred at a union meeting. The applicant is once again asking me to revisit facts found in a previous decision and consider allegations he raised in another Application he filed with the Tribunal that remains in progress. In my Decision, I found that it was not appropriate for me to do so. He seeks to reargue this point in his Request. As noted above, a request for reconsideration is not an opportunity to re-argue one’s case. Therefore, I will not reconsider these findings from my Decision.
10Next, the applicant complains that he has not been well served by the respondent union, including when he compares his treatment to that which other union members have received. He did not assert that this information was not reasonably available to him prior to the summary hearing. The applicant seeks to re-argue his case with these arguments. The only issue in the Application relates to one incident that occurred in 2016. The issues he raises regarding ongoing unfair treatment post-date that incident. As such, they cannot form the basis of an Application that is based on an incident that precedes them. Further, if the applicant has complaints regarding how his union has treated him in comparison to other union members, that issue engages the duty of fair representation under the Labour Relations Act, 1995, S.O.1995, c. 1, Sched. A. Even if that issue is properly a Code issue, the applicant should have raised it in his Application. A Request for Reconsideration is not an opportunity to reframe or re-argue one’s case, unless the new information was not reasonably available prior to the hearing. An applicant is expected to put all their allegations in their initial application.
11Lastly, the Tribunal cannot consider new allegations regarding the applicant’s employer. This Application pertains to the respondent union, and not the applicant’s employer. The Tribunal cannot expand the scope of the Application to include a new respondent.
12There is no compelling reason for the Tribunal to re-examine its decision. Rather, there is a significant public interest in ensuring that a decision, once made, is final. Parties are expected to treat decisions as final subject to narrow exceptions; however, none of the exceptions contemplated in the Rules or Practice Direction are present in this case.
order
13For the reasons stated above, the Request for Reconsideration is denied.
Dated at Toronto, this 30th day of November, 2017.
“Signed by”
Esi Codjoe
Vice-chair