- Reconsideration (consideration of evidence)
- Reconsideration (error of law)
- Reconsideration (human rights) (discrimination)
- Reconsideration (procedural error) (submissions)
- Human rights (discrimination) (family status)
- Procedure (human rights issue)
The worker requested a reconsideration of Decision No. 3205/16 and Decision No. 3205/16R.
The reconsideration request was allowed. The Tribunal's threshold test for granting a reconsideration request had been met. A new oral hearing on the merits was ordered to be scheduled. The Vice-Chair remained seized of the appeal. The Vice-Chair determined that the significance of the errors had outweighed the delay in bringing the second reconsideration request. Once it was determined that voluntary under-employment was at issue, the worker should have been provided with a further opportunity to give testimony addressing the issue of voluntary underemployment specifically. Submissions from her representative were not sufficient to fairly address this issue. It was also an error in Decision No. 3205/16 to give weight to outdated evidence rather than to updated wage rate information as required under the terms of the policy in determining the LOE quantum from the closure of WT.Decision No. 3205/16R erred by deviating from Tribunal case law and Board policy by not considering the worker's personal circumstances (family status and sex) in determining whether the worker had made a conscious and deliberate decision to under-employ herself. The Vice-Chair found it appropriate to consider the Charter/human rights argument raised by the worker in this reconsideration request. Decision No. 534/90 notes that, once an appeal is re-opened, all arguments may be considered. The worker submitted that family status and sex were protected characteristics under the Charter and the Code, and as such, were personal circumstances that ought to have been considered in determining her LOE benefits entitlement. The Vice-Chair accepted this submission. It is well established in Tribunal jurisprudence that legislation and Board policy are to be interpreted and applied in a manner that is consistent with the Charter and Human Rights Code.In Doré v. Barreau du Québec, it was stated that administrative decision-makers are required to consider fundamental values and protected rights, including those set out in the Charter and the Code, in rendering decisions that are consistent with these values and protected rights. Overlooking the worker's life circumstances in her reasons for moving, which appeared to involve protected characteristics of family status and sex, resulted in decision-making that was inconsistent with human rights and Charter values, and as such, was a significant error of law.