Kam Chong Li v. Novopharm Limited, 2009 HRTO 1916

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kam Chong Li

Applicant

-and-

Novopharm Limited, Gail Lucyk, Halima Khan and Lee Reich

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: November 10, 2009

Citation: 2009 HRTO 1916

Indexed as: Li v. Novopharm

1This Decision addresses a request for reconsideration by the applicant in relation to the Tribunal’s Case Resolution Conference Decision upholding the Application on two points and dismissing it with regard to the remaining points, 2009 HRTO 885.

2On July 16, 2009, the applicant filed a request for reconsideration of the Tribunal’s decision, together with extensive submissions in support of his request and supporting documents.

3While the applicant has requested that the reconsideration be conducted by a different Vice-chair, the assignment of a reconsideration request to any particular Vice-chair is a decision for the Tribunal Chair and cannot be directed by the applicant. In this case, there is no reason to depart from the normal practice of assigning reconsideration requests to the adjudicator who authored the decision under reconsideration.

4Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), provides 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.

5Under 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).

6The 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.

7As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

8In 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.

9The 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.

10As a result, I need to determine whether the material filed by the applicant in support of his request for reconsideration satisfies any of the criteria set out in Rule 26.5. In the instant case, the applicant relies upon criteria (a), (c) and (d) in Rule 26.5.

11With regard to Rule 26.5(a), and having carefully reviewed all of the material filed by the applicant in support of the reconsideration request, the applicant primarily repeats evidence given by him and considered fully in the Tribunal’s Decision. As indicated above, a request for reconsideration is not an opportunity to re-state or re-argue evidence already filed.

12One of the primary bases upon which the applicant objects to the Decision is that he believes that it contradicts a determination made by the Workplace Safety and Insurance Board (“WSIB”) that the order picker job was beyond his physical restrictions. In his reconsideration request, the applicant states that I refused to allow him to enter into evidence internal memos prepared by the WSIB claims adjudicator. In fact, what the applicant sought to tender into evidence was a summary of these memos that had been prepared by his worker representative in the WSIB proceeding, rather than the actual memos themselves. Because the actual memos were not being tendered, I was not prepared to receive the worker representative’s summary into evidence, but did permit the applicant to refer to this summary in his closing submissions.

13The applicant now has filed the actual memos prepared by the WSIB claims adjudicator in support of his reconsideration request. I note first that these are not WSIB decisions, but are merely notes of telephone discussions that the WSIB claims adjudicator had with the applicant and the respondent company. Memos #9 and #10, both dated November 18, 2002, make reference to the applicant’s restrictions to avoid prolonged standing and walking and include the statement that the order picker job was not suitable for the applicant as it involved walking and standing all day long.

14It may be that, as the job is normally performed, the regular duties of the order picker position were beyond the applicant’s restrictions. However, the evidence before me clearly indicated that the respondent company had agreed to provide the applicant with modified work within his restrictions, and the applicant himself agreed that there were duties of the order picker position that he was able to perform that were within his restrictions. The applicant was not able to provide evidence of any specific occasion on which he had raised with a supervisor that any specific task that he was being asked to perform was beyond his restrictions. In the absence of any such evidence, I was unable to conclude that the respondents had failed to appropriately accommodate the applicant’s needs.

15The applicant alleges that my finding that the respondent company discriminated against him by trying to require him to operate the forklift is inconsistent with my finding that he otherwise was not assigned duties beyond his restrictions. I do not agree. My finding with regard to the forklift duties was based upon evidence of a medical note that I found had been provided to the respondent company that expressly stated that the applicant was unable to operate a forklift, and was not based upon the prior more general restriction against prolonged standing.

16In support of his reconsideration request, the applicant submitted two medical reports, one by Dr. Harrington dated December 11, 2008 and the other by Dr. Wong dated April 7, 2009. The hearing in this matter was held on May 13 and 14, 2009 and the Decision was not released until June 19, 2009. No explanation was provided by the applicant as to why he could not reasonably have obtained these reports prior to the hearing. In any event, neither of these reports provides potentially determinative evidence. Dr. Harrington’s report merely states his suspicion that the applicant’s initial symptoms were due to a work-related injury, which is not an issue before this Tribunal, and that it is reasonable to assume that the present nature of the applicant’s job subjects his lumbar spine to moderate levels of stress. This does not alter the conclusions that I reached in the Decision regarding the accommodation issue. Dr. Wong’s report recommends that the applicant cut down on standing and walking, which is consistent with the applicant’s restrictions at the relevant time.

17On October 7, 2009, the applicant further submitted the decision of the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) regarding his WSIB claim, which was rendered on September 11, 2009. While this decision does find that the applicant has entitlement to WSIB benefits on the basis that his injury was work-related, the decision (at para. 38) expressly makes no finding as to whether the duties of the order picker position were beyond the applicant’s restrictions, as this issue was not the subject of a WSIB decision and so was not before WSIAT.

18The applicant’s remaining submissions all repeat evidence and arguments that were made before me and considered in rendering my Decision. No new facts or evidence are provided that cause me to change the conclusions I reached.

19Rule 26.5(c) applies where there are findings made in the Decision that are in conflict with established jurisprudence. As stated by the Tribunal in Sigrist and Carson, supra, 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 applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that his submissions on this request for reconsideration do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

20Finally, with regard to Rule 26.5(d), there are no factors raised in the request for reconsideration that, in my opinion, outweigh the public interest in the finality of Tribunal decisions.

21Accordingly, I find the applicant 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.

22The request for reconsideration is denied.