Garry Latanville v. Gilbert Steel Limited and Gary Gilbert, 2009 HRTO 1168

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Garry Latanville

Applicant

-and-

Gilbert Steel Limited and Gary Gilbert

Respondents

reconsideration DECISION

Adjudicator: Jim Dimovski

Date: July 29, 2009

Citation: 2009 HRTO 1168

Indexed as: Latanville v. Gilbert Steel

Reasons for Decision

1In a Request for Reconsideration dated May 25, 2009, Mr. McDonald, counsel for the respondents, respectfully requested "reconsideration of the legal conclusions" reached in an Interim Decision, 2009 HRTO 525. That Interim Decision, concluded that the applicant had met his evidentiary burden of establishing a prima facie case of discrimination. The respondents argue that finding is in conflict with established jurisprudence and raises serious issues of procedural fairness and natural justice. As such, the respondents' reconsideration request is made pursuant to Rule 25.5(c) of the Rules of Procedure for s. 53(3) and 53(5) Applications ("Transitional Rules").

2In the alternative, Mr. McDonald requested clarification of the "contents and prospective requirements compelled by the Interim Decision". In particular, Mr. McDonald requests that the Tribunal "provide guidance to the parties on what remain[s] in dispute in light of the admissions made by the Applicant."

3In correspondence dated July 22, 2009, the respondents ask that the Tribunal decide the reconsideration request. Further, the respondents outline and reiterate their concerns about procedural fairness and natural justice regarding this Application.

IS 2009 HRTO 525 A FINAL DECISION?

4Rule 25.1 of the Transitional Rules provides that any party may request reconsideration of a final decision of the Tribunal.

5The respondents submit the Interim Decision was a "final and conclusive finding in respect of the respondents request to have the Application dismissed in whole or, in part, for the failure to make out a prima facie case".

6I disagree. The Interim Decision did not make any conclusive findings regarding the issues in dispute but rather decided the threshold issue of whether the Application on its face could support a Code-based claim. As the Tribunal stated in Sigirst and Carson v. London District Catholic School Board, 2008 HRTO 34:

While it is important to appreciate that the decisions are made in various contexts, it appears that under any approach, procedural directions made during the course of a proceeding would not be viewed as a "final decision". Such procedural directions may include lengthening or shortening time limits for taking steps, ordering documentary disclosure, or consolidating or separating cases for hearing. Likewise, evidentiary rulings made during the course of a hearing would not be seen as constituting final decisions giving rise to a right to request reconsideration. I see no reason not to apply a similar approach to reconsideration under the Tribunal's rules.

(...)

As a general principle, having regard to the approach taken in other forums as well as the above discussion, it is reasonable to view a "final decision" as one that disposes of some or all of the central issues in the complaint as between the parties.

7It remains to be decided whether, on a balance of probabilities, the respondents treated the applicant differently in the course of his employment on the basis of his family status and/or disability and whether these grounds were a factor in the decision to terminate his employment. There has been no final decision on any aspect of the Application. As a result the respondents' reconsideration request is premature.

8Having found the Interim Decision is not a final determination of rights, I do not need to consider the respondents' other arguments.

CLARIFICATION

9In their alternative submissions, the respondents requested direction from the Tribunal. In light of the Tribunal's direction to schedule a single hearing day for the remainder of this Application, the appropriateness of which he denied, Mr. McDonald writes:

...the Tribunal to exercise its ability to control its own processes and provide guidance to the parties on what matters remain in dispute in light of the admissions made by the Applicant...The Responding Parties make this request in the interest of ensuring efficient delivery of viva voce evidence.

10In my view, despite the admissions made by the applicant at the hearing, the respondents may consider leading evidence regarding the specific allegations involving Mr. Gilbert, the circumstances regarding the surveillance of the applicant while he was off work due to celluitis and how the corporate respondent addressed the applicant's request for time off work during the relevant time.

11On one hand, the respondents suggest what, if any allegations, remain, and on the other hand, argue that one additional day of hearing time may not be sufficient. The respondents rightly confirm the Tribunal's authority to control its own process. As a result of the respondents' concerns, I will hear brief submissions at the hearing whether it is more appropriate that the bulk of questioning of the respondents' witnesses be conducted by this Tribunal Member in order to ensure the efficient delivery of evidence.

12I note counsel for the respondents' ongoing concerns with the applicant's failure to comply with the Tribunal's rules and directions and allege that this behaviour has prejudiced them in the presentation of their case. Specifically, the respondents state they were forced to prepare cross-examinations in the absence of a proper witness list of summaries, and were hampered in their ability to prepare by the applicant's failure to provide timely documentary productions.

13At the hearing on March 11, Mr. Norman, the applicant's representative, indicated that the applicant did not intend to call witnesses and only intended to rely on the applicant's allegations as contained in his Application, the applicant's testimony and the documents filed late on February 27, 2009.

14Aside from the justifiable frustration with the applicant's conduct, I fail to understand how the respondents incurred costs in preparing for witnesses that had not been identified. While late, the applicant's disclosures were what would be anticipated in an Application of this nature. Further, any prejudice or unfairness to the respondents has, in my view, been addressed by the fact the respondents have not entered any evidence in-chief and have had time since the CRC to consider the applicant's testimony and documents. The hearing has been bifurcated so the respondents' concern with adequate time to consider the damages claim is also addressed.

15In the end, I am not satisfied the respondents have been prejudiced unduly by the applicant's behaviour. At the same time, I wish to remind the applicant's representative of his obligations to the Tribunal and the responding parties to comply with the Tribunal's Rules and directions in a respectful and timely manner.