HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Amy Thompson Applicant
-and-
Selective Personnel Limited Respondent
RECONSIDERATION DECISION
Adjudicator: Mary Truemner Date: November 6, 2009 Citation: 2009 HRTO 1888 Indexed as: Thompson v. Selective Personnel
1On August 6, 2009, the Tribunal issued its Decision in this Application, 2009 HRTO 1224, finding that the respondent, an agency which finds caregivers for employers, had discriminated against the applicant in employment on the basis of disability.
2Since the hearing, the respondent has retained a legal representative, and has asked the Tribunal to reconsider its Decision.
THE REQUEST FOR RECONSIDERATION
3The Request for Reconsideration (the "Request") sets out a number of reasons why the respondent believes the Decision should be reconsidered.
4First, the respondent argues that the applicant's condition was not a disability.
5Second, the respondent argues that the applicant was not treated differently.
6The third reason cited by the respondent is that there was no evidence led at the hearing to support a finding that classifying job applicants on the basis of whether they have been under psychiatric care is classifying them as disabled so that they will be refused jobs.
7Finally, the respondent argues that finding discrimination simply by requiring an applicant to indicate on the application form whether they have been under psychiatric care is unsupported by evidence and unwarranted. It argues:
Under the Child and Family Services Act, R.S.O. 1990 care providers and the Agencies that employ them are placed under a higher obligation with respect to the safety and well being of the persons in their care. The paramount purpose of this Act is to promote the best interests, protection and well being of the children. The legislation places an obligation on persons employed in this industry of knowing whether or not a person in their care may be in danger and obligates them to taking steps in protecting them through a higher duty to report the potential danger. Wherein there is an obligation in law of knowing the right to make inquiry should not be tampered with lightly, for how could a person truly know if they do not inquire.
DECISION
8Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal's Rules.
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.
9The 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. Most relevant to this Decision is Rule 26 which states:
26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision.
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.
10The respondent has checked two boxes on the Form 20 as reasons for its Request. One is that the decision is in conflict with established case law or Tribunal procedure, but the respondent does not specify what case law or Tribunal procedure. The other is that "other factors exist that outweigh the public interest in the finality of Tribunal decisions." I will assume that its reasons supporting its Request come under this heading.
11The 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.
12As is evident from the above, reconsideration is a discretionary remedy. While the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so.
13With respect to the first and third reason for which the respondent argues the Decision should be reconsidered, the Decision notes that disability as defined in s. 10 of the Code includes a mental or psychiatric disorder and includes past, present or perceived disability. The Decision goes on to find, based on the evidence of the respondent's witnesses who testified, that the offending question was included on the application form to ascertain whether an applicant may be a threat to people requiring care, that the answer would be shared with potential employers who were at liberty to refuse applicants, regardless of the reasons for the psychiatric care, and that the respondents were operating under the stereotypical assumption that asking whether someone has been under psychiatric care is an indicator of mental illness or mental disorder. Further, the Decision finds that s. 23(2) and s. 23(4) of the Code were breached by asking a question on the application form that serves to classify applicants by disability or perceived disability, and cites applicable case law. Therefore, I am satisfied that with regard to these two reasons for reconsideration, the Decision neither conflicts with any jurisprudence, nor are their any other factors which outweigh the public interest in the finality of the Decision.
14With regard to reason two, namely that the applicant was not treated differently, the Decision found that the applicant withdrew her application as a result of being put in the vulnerable position of being perceived as disabled. The decision made findings of fact with regard to the impact of the events on her dignity and self-respect. The Decision declined to find that the applicant was refused a job as a result of disability or perceived disability or to award damages for wage loss as a result. I therefore find that this reason does not justify reconsideration. The issue was canvassed at the hearing and was dealt with in the Decision.
15It would appear from the respondent's fourth reason that the respondent is seeking an opportunity to repair deficiencies in the presentation of its case. The respondent is now arguing that it has a legislated duty to ensure that an applicant for a caregiver position is not a danger. The respondent appears to be saying that asking whether someone has been under psychiatric care is a way to screen out dangerous applicants, and that it is required to do so by law. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal confirmed 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.
16Regardless of the fact that the Tribunal will not generally allow a party to raise a new argument in the context of reconsideration if it could have been raised at the hearing, I find that the argument here does not justify a reconsideration given that what is being raised does not outweigh the public interest in the finality of Tribunal decisions.
17The respondent's witnesses had testified at the hearing that the reason for the inclusion of the question on the application form was to protect the most vulnerable of society, and to allow the employer, not the agency, to determine whether they wanted to hire someone who had indicated that they had received psychiatric care. The respondents led no other evidence to meet their onus of demonstrating how this question, which was found to have an adverse impact under the Code, nevertheless meets the requirements of bona fide occupational requirement based on the three factors set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3, 1999 CanLII 652 ("Meiorin").
18The Supreme Court of Canada in Meiorin set out a uniform approach for determining whether a prima facie discriminatory rule or standard is justified. The respondent must establish on a balance of probabilities that: (a) it adopted the standard for a purpose rationally connected to the function being performed, (b) it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose, and (c) the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose in the sense that the respondent cannot accommodate persons with the characteristics of the complainant without incurring undue hardship. When inquiring into accommodation, the Court proposed that the following questions be considered:
(a) Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?
(b) If alternative standards were investigated and found to be capable of fulfilling the employer's purpose, why were they not implemented?
(c) Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?
(d) Is there a way to do the job that is less discriminatory while still accomplishing the employer's legitimate purpose?
(e) Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
19Therefore, although there was no specific reference to any legislated duty, which would itself be subject to the requirements of the Code, the general argument that the question is asked to protect vulnerable persons was raised at the hearing, considered and rejected as not providing a defence under the Code. To the extent that the legislated duty is being argued for the first time in this request for reconsideration, I find that there was no evidence before me to suggest that the respondent considered approaches to protecting vulnerable individuals that would have had a less discriminatory effect or would have better allowed for individualized assessment and accommodation.
20I conclude that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal's Decision. The Request is denied.
Dated at Toronto, this 6th day of November, 2009.
"Signed by"
__________________________________
Mary Truemner Vice-chair