Szyluk v. United Food and Commercial Workers Canada, 2009 HRTO 1414

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizbieta Szyluk

Applicant

-and-

United Food and Commercial Workers Canada, Local 1000A

Respondent

RECONSIDERATION DECISION

Adjudicator: Judith Hinchman

Date: September 8, 2009

Citation: 2009 HRTO 1414

Indexed as: Szyluk v. United Food and Commercial Workers Canada

1This Decision addresses the respondent’s Request for reconsideration of the Tribunal’s Case Resolution Conference Decision, 2009 HRTO 902 (the “Decision”), on the basis that the Decision is in conflict with established case law or Tribunal procedure, the proposed reconsideration involves a matter of general or public importance, and that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

2On August 22, 2009, the respondent filed a Request for Reconsideration under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”).

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.

3Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests 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, January 2008 amended June 2008).

4The 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.

5As 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.

6In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

7The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

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.

8The respondent filed an extensive submission in support of its Request. It summarized its grounds for reconsideration as follows:

1. The Tribunal’s ruling as to the applicant’s standing to bring the Application is inconsistent with the Code; it misinterprets and misapplies the one authority to which it referred on this question and it failed to afford the respondent procedural fairness because it failed to afford the respondent an opportunity to make submissions on this case to note its inapplicability here;

2. The Tribunal based its decision in part on a finding which was contrary to the undisputed evidence, it also unreasonably ignored and failed to refer to evidence which was inconsistent with its findings;

3. The Tribunal’s ruling on the Union’s “corporate” responsibility for offensive comments by the steward misinterpreted and misapplied the jurisprudence on this point; it failed to note the Tribunal’s test is one of reasonableness in response, nor did the Tribunal refer to evidence which demonstrated that the Union acted consistently with its harassment policy and in a reasonable way;

4. The Tribunal misinterpreted and misapplied the jurisprudence on the question of a poisoned work environment arising from Code violations; it also failed to afford the respondent procedural fairness because it did not afford the respondent an opportunity to make submissions on the cases to which it referred which would have given the respondent an opportunity to point out their inapplicability.

ANALYSIS

Jurisprudence

9In points 1, 3, and 4 above, the respondent takes issue with the jurisprudence applied in the Decision as well as the fact that I did not refer to certain case law that it cited.

10I am not convinced that any findings made in the Decision are in conflict with established jurisprudence, within the meaning of Rule 26.5(c). The Tribunal stated in Sigrist and Carson, supra that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the respondent clearly disagrees with the conclusions of the Tribunal, I am satisfied that its submissions on this Request do not establish that the Tribunal’s Decision is in conflict with established jurisprudence.

Applicant’s standing to bring the Application

11The respondent argues that I misinterpreted and misapplied Lee v. T.J. Applebee’s Food Conglomeration (1987) 1987 CanLII 8496 (ON HRT), 9 C.H.R.R. D/4781 (Ont. Bd. Inq.), to support my conclusion that the applicant, even though she is not a member of the group targeted by discriminatory comments, was nonetheless discriminated against when subjected to those comments. I am satisfied that the reason’s articulated in my Decision align with the Board’s reasoning and findings in Applebee’s Foods, supra and do not represent a conflict with established jurisprudence.

12In Applebee’s Food, supra the Ontario Board of Inquiry addressed the issues of whether or not Ms. Lee, an employee of Chinese ancestry, faced direct and/or indirect discrimination in the workplace. The Board found that Ms. Lee did not face direct discrimination, however, it did find that she was exposed to indirect discrimination, which it defined as “an atmosphere of prejudice which makes work difficult or impossible for the employee.” This finding was based on an evidentiary finding of racial slurs and stereotypical disparagement of non-whites – in this case not limited to those of Chinese ancestry but slurs regarding other ethnicities as well. In fact it was undisputed that none of the racial slurs or steroptypical language was directed specifically at Ms. Lee. And the offensive slurs were for the most part directed towards an ethnic group to which Ms. Lee does not belong. In making their finding the Board stated:

Ms. Lee in fact claimed that, though she herself was not the target of the epithets, she was bothered by these expressions, because they demeaned people who deserved better by their supervisors.

13The Board concluded that the racial slurs and verbal abuse constituted prohibited practices under the Code, which tainted the work environment. After noting that management did not seem to fully appreciate the effect of such remarks the Board continued, “[t]his constitutes without question a tainting of the work environment which is precisely what the Code attempts to combat.” I am satisfied that the reason’s articulated in my decision align with the Board’s reasoning and findings in Applebee’s Foods, supra and do not represent a conflict with established jurisprudence.

14The respondent also argues that I failed to provide it procedural fairness in that it was not given an opportunity to make submissions on the applicability of Applebee’s Food, supra. Reconsideration is not an opportunity for a party to repair deficiencies in the presentation of its case. The fact that the applicant was not a member of the targeted group yet filed her Application because she felt that she was nonetheless discriminated against by being exposed to the alleged comments was central to this case. The respondent had a full opportunity at the Case Resolution Conference (the “CRC”) to address this issue and make submissions on appropriate case law. There was no breach of an opportunity to be heard.

15The respondent also states that I ignored Khaiter v. York University Faculty Association, 2008 HRTO 241 on the issue of standing. In Khaiter, the Tribunal found that the Application in that case did not set out a factual basis that could give rise to a violation of section 6 of the Code. That case examined allegations that the applicant’s union had failed in its duty of fair representation of the applicant for grievances filed against the employer. The facts of Khaiter bear no similarity to this matter and in contrast to the decision in Khaiter, I have found that the applicant has proven facts that give rise to a violation of section 6 of the Code as discussed above with respect to the application of Applebee’s Foods, supra. A claim that the Tribunal did not follow a particular authority presented by a party, or distinguishes that authority, does not mean that the decision departs from established jurisprudence.

Test to apply to the Union’s response to complaint of discrimination

16On the question of the union’s responsibility for the discriminatory remarks made in this case, the respondent asserts that in my Decision, I “did not refer to the applicable test” as outlined in Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (Ont. Bd. Inq.), which it provided. And thus I did not apply an important aspect of the test by asking: “did the respondent act reasonably?”

17The issue before me was whether the respondent’s response to the applicant’s complaints about certain discriminatory remarks amounted to an infringement of her Code rights. To assess the sufficiency of the respondent’s response, the test stated in Jones, supra and that applied in my Decision from Wall v. University of Waterloo (1990), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44, Drummond v. Tempo Paint and Varnish Co. (No. 4) (1998), 1998 CanLII 29860 (ON HRT), 33 C.H.R.R. D/175 (Ont. Bd. Inq.), and Abdallah v. Thames Valley District School Board, 2008 HRTO 230 apply essentially the same six factors.

18In Abdallah, supra this Tribunal stated that these six criteria as articulated in that case are the proper criteria for assessing the sufficiency of a corporate respondent’s efforts to address allegations of discrimination, precisely one of the issues addressed in the Decision. The application of this test in my Decision was not a clear and surprising departure from that established jurisprudence and I am satisfied it was in keeping with Tribunal jurisprudence on this question.

19Finally, the respondent claims that I did not refer to Fuller v. Candur Plastics Limited (1981), 2 C.H.R.R. D/93 on both the issue of its corporate responsibility for the alleged discriminatory remarks and to assess the reasonableness of its response to the applicant’s allegation to it that discriminatory comments were made in her presence at a union meeting.

20In closing argument the respondent referred to Fuller, supra paragraphs 3739 and 3740 for its argument that an isolated offensive comment could be considered an “outburst” and as such did not offend the Code. I considered that argument and for the reasons articulated in the Decision I was not convinced that the alleged comments could be trivialized as a mere outburst and in fact I found that they did rise to the level of a Code infringement.

21The Fuller case was not argued by the respondents as applicable to its corporate responsibility for the remarks or for the reasonableness of its response. Even had the respondents cited this case for the determination of those issues, I am satisfied that the issue of corporate responsibility was analyzed appropriately using the accepted test discussed above.

22With respect to both the Jones and Fuller cases, as stated earlier, a claim that my Decision did not follow certain authorities presented by the respondent does not mean that my Decision departed from established jurisprudence.

Poisoned environment

23The respondent also argues that I misinterpreted and misapplied Persuad v. Consumers Distributing Ltd. (1990), 1990 CanLII 12507 (ON HRT), 14 C.H.R.R. D/23 (Ont.Bd.Inq.) and Abdallah, supra when I cited these cases as support for the proposition that offensive name-calling or racial slurs even in the midst of conflict have been recognized as contravening the Code. I am satisfied that these two cases support the proposition stated in the Decision and thus the Decision does not depart from established jurisprudence.

Other cases the respondent argues I did not refer to or consider

24The respondent also submits that I did not refer to or consider Roth v. Beaver Creek Improvement District and Sopow, 2008 BCHRT 133 and Nixon v. Vancouver Rape Relief Society, 2002 BCHRT 1, which deal with the respondent’s submissions that because the applicant was not an employee of the respondent, the Tribunal has no jurisdiction over her Application.

25After considering submissions by both parties, for the reasons stated in my Decision the social area of the Application was changed to vocational associations.

26These two cases, submitted by the respondent to support its arguments regarding a lack of employment relationship, are not relevant to the Decision of whether or not the applicant was discriminated against as a member of the respondent union and as a consequence have no bearing on whether or not the Decision followed established jurisprudence.

Evidentiary Findings

27In points 2 and 3 of the respondent’s grounds for reconsideration, the respondent takes issue with some findings of fact that it claims are contrary to the undisputed evidence, and also argues that I unreasonably ignored and failed to refer to evidence which was inconsistent with my findings.

28The respondent is attempting to re-argue its case that it responded appropriately and sufficiently to the applicant’s complaint about the comments. As indicated above, a request for reconsideration is not an opportunity to restate or re-argue evidence already advanced and considered. The respondent’s disagreement with the conclusions that I drew from the evidence are not a basis for reconsideration.

Other issues raised

29Section 45.2(1) of the Code provides the Tribunal with the authority to order a party who has violated the Code (1) to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings, and self-respect, (2) to make restitution to the party other than through monetary compensation, and (3) to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code. Section 45.2(2) provides that with respect to the third type of order, the Tribunal’s order “may direct a person to do anything with respect to future practices,” and “may be made even if no order [of that type] was requested.”

30In its Request for reconsideration, the respondent appears to raise an issue regarding the remedy awarded. A request for reconsideration is not an opportunity to appeal the remedy awarded.

31There are no factors raised in the respondent’s Request for reconsideration that, in my opinion, outweigh the public interest in the finality of Tribunal decisions.

32Accordingly, I find the respondent has not met the burden of establishing any of the threshold criteria justifying reconsideration. The Request does not satisfy the requirements of Rule 26.5.

33The Request for reconsideration is denied.