HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Edwin Espey
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
The Corporation of the City of London and London Professional Fire Fighters’ Association
Respondents
RECONSIDERATION DECISION
Adjudicator: David A. Wright
Indexed as: Espey v. London (City)
WRITTEN SUBMISSIONS BY
Ontario Human Rights Commission ) Prabhu Rajan, ) Counsel
Corporation of the City of London, Respondent ) Peter J. Thorup and ) R. Lance Ceaser, Counsel
London Professional Fire Fighters’ Association, ) Howard Goldblatt and Respondent ) Charlene Wiseman, ) Counsel
INTRODUCTION
1The Ontario Human Rights Commission (the “Commission”) seeks reconsideration of the Tribunal’s Decision dismissing these complaints: Espey v. London (City), 2008 HRTO 412. The request cites two grounds contained in Rule 102 of the Tribunal’s Rules of Practice for Commission-referred complaints. The Commission argues that the decision is “in conflict with established jurisprudence” (Rule 102(c)) and that “other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions and orders” (Rule 102(d)).
2The Commission’s submissions do not raise issues that would justify a reconsideration of the Tribunal’s Decision. They are, rather, an attempt to re-argue the case and add additional arguments that were not made prior to the Decision. They do not justify reconsideration.
ANALYSIS
A. Conflict with Established Jurisprudence
3The Commission’s argument that the Decision is in conflict with established jurisprudence primarily challenges the Tribunal’s interpretation of certain Supreme Court of Canada decisions. It also cites decisions of Boards of Inquiry from 1981, 1990, and 1995 that it alleges conflict with in various ways with the Tribunal’s Decision. It refers to brief excerpts from these decisions, but does not discuss their factual, legal, legislative and policy context.
4The Tribunal’s jurisprudence is clear that the “conflict with established jurisprudence” ground does not invite a re-litigation of the issues in the case: see Sigrist and Carson v. London Catholic District School Board et al., 2008 HRTO 34 at paras. 54 – 57; Campbell v. Toronto District School Board, 2008 HRTO 423 at paras. 19 – 20. As the Tribunal stated in Sigrist at paras. 54 – 57:
…I have considered what is meant by the requirement of a “conflict”. Given the public interest in finality of decision-making and economy of legal proceedings, as discussed above, a decision should not be reconsidered on the basis of an assertion of an apparent conflict with the result reached in another decision. There must be a conflict with “established” jurisprudence or procedure in the sense that there is a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules.
Parenthetically, even in the event of a departure from settled legal rules, there may be valid reasons why the Tribunal might nonetheless decide not to reconsider a decision. For instance, it is not clear to me that reconsideration must be granted even in the event of conflict where it is evident that the parties have had an opportunity to address the issues and the adjudicator has considered and given reasons for departing from the analysis or conclusion reached in prior cases. Where granting reconsideration in such a circumstance serves no purpose other than an opportunity to re-argue the issue, the Tribunal may well exercise its discretion against reconsidering its decision.
As is evident from the Rules and made explicit in Practice Direction #4, reconsideration is not an appeal. It is not an opportunity to re-argue a case. Once the parties to a case 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.
Secondly, assertions of a “conflict” must be analyzed with care and have due regard to the realities and nature of decision-making. Even where there is well-established jurisprudence or procedures, each decision on apparently similar issues is made within its own factual, legislative and policy context. A finding that there is a “conflict” can only be made taking into consideration the full context of the decisions…
5The Commission takes particular issue with the role of the collective agreement in the undue hardship analysis. This issue was argued in detail by the parties, and the Tribunal’s Decision was made with full consideration of the developing jurisprudence in the area. Indeed, as the respondent London Professional Fire Fighters’ Association points out, some of the Commission’s reconsideration submissions contradict points it made in final argument, in which it acknowledged that a collective agreement may have some role in the undue hardship analysis.
6There is no merit to the argument that the Decision conflicts with established jurisprudence in the sense contemplated by the Tribunal’s Rules. The Decision involved a contentious issue and the application of developing jurisprudence to a particular and difficult factual context. There is no “established jurisprudence” on the issues it dealt with. Accordingly, there is no need to discuss the arguments on this ground in greater detail.
B. Public Interest in the Finality of Tribunal Decisions
7Second, the Commission argues that as a result of an alleged conflict between the Tribunal’s Decision and the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, other factors exist that outweigh the public interest in the finality of Tribunal decisions. It cites the following excerpt from its policy:
The Code sets out only three considerations [cost, health and safety risks, outside sources of funding]. This means that no other considerations, other than those that can be brought into those three standards, can be properly considered under Ontario law. There have been cases originating from other jurisdictions or from Ontario prior to the amendment of the Code that have included such other factors as employee morale, or conflict with a collective agreement. However, the Ontario legislature has seen fit to enact a higher standard by specifically limiting undue hardship to three particular components. The broad and purposeful interpretation of the Code and human rights generally means that rights must be construed liberally and defences to those rights should be construed narrowly. Moreover, the Code has primacy over legislation, and also prevails over agreements such as collective agreements.
Several factors are therefore excluded from considerations that are frequently raised by respondents. These are business inconvenience, employee morale, customer preference, and collective agreements or contracts.
8The Commission argues that the discussion of collective agreement-related considerations in the Decision is inconsistent with this policy’s interpretation of s. 24(2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which reads as follows:
(2) No tribunal or court shall find that a qualification under clause (1) (b) is reasonable and bona fide unless it is satisfied that the circumstances of the person cannot be accommodated without undue hardship on the person responsible for accommodating those circumstances considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
9The Commission did not rely upon this portion of its policy or cite it in its argument. Under s. 45.5(2) of the Code, the Tribunal is required to consider a Commission policy if a party or an intervenor requests that it do so. However, no party raised this portion of the policy. The Commission’s position in final argument was that the relevance of the collective agreement was limited, not that the collective agreement could not be considered at all.
10The position that the Commission is now taking in reliance on its policy is, like its other arguments, an attempt to re-litigate an issue that was fully argued before the Tribunal. The Tribunal would have been required to consider the policy had the Commission raised it. Reconsideration is not an opportunity for a party to add additional arguments upon learning that its original position was unsuccessful.
11The Commission also argues that the Tribunal should reconsider paragraph 100 of its Decision, which it argues “improperly imposes an obligation on employees”. In most cases, the reconsideration power is not for the purpose of amending a statement or paragraph in a Tribunal Decision as opposed to the Decision itself. In any case, there is no basis for doing so in this case.
12This is sufficient to dispose of the request for reconsideration. However, in view of the nature of this case and the resources the parties have devoted to it, I would not want to leave the impression that the Tribunal’s Decision might have been different had the Commission made different arguments about the effect of the list of factors in s. 24(2) of the Code. The Decision considered the role of the collective agreement as part of considering whether the provision was justified on the basis of health and safety. It did not treat it as an independent factor or as determinative. At paras. 92 – 97 of the Decision, I relied upon the decision of the workplace parties as a factor in support of the conclusion that the impugned provision was justified in light of the health and safety risks it addresses. Moreover, in my view the factors discussed in these paragraphs, in particular the recognition of the possible costs of a change in the retirement age on pensions (paras. 92 and 94) and on younger firefighters with disabilities (para. 96) also fall under the “cost” factor in s. 24(2).
ORDER
13For all of these reasons, the request for reconsideration is dismissed.
Dated at Toronto, this 10th day of March, 2009
“Signed by”
David A. Wright
Vice-chair