O’Regan v. Firestone Textiles Company, 2010 HRTO 1627

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cathy O’Regan

Applicant

-and-

Firestone Textiles Company, A Division of Bridgestone/Firestone Canada Inc., Lynda Ruffo and Bill Matetich

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: July 30, 2010

Citation: 2010 HRTO 1627

Indexed as: O’Regan v. Firestone Textiles

1This Decision addresses a request for reconsideration by the applicant in relation to the Tribunal’s Decision 2010 HRTO 502 dated March 5, 2010 dismissing the Application on the basis of a release signed by the applicant.

2By Request for Reconsideration dated March 31, 2010, the applicant sought reconsideration of the Tribunal’s Decision.

3Section 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.

4Under 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).

5The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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.

6As 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.

7In 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.

8The 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 25.5 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.

9As a result, I need to determine whether the material filed by the applicant in support of her request for reconsideration satisfies any of the criteria set out in Rule 25.5 upon which she relies.

10On the Request for Reconsideration filed by the applicant, she first relies upon criterion (a), namely that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. The basis for this aspect of her request appears to rest upon the Tribunal’s Interim Decision dated December 18, 2009 (2009 HRTO 2219), which denied the applicant’s request for production of documents relating to the merits of her underlying claim that there was no staff reduction and that the applicant was selected for termination because of her recent medical leave. The production of these documents was denied on the basis that these documents were not arguably relevant to the issue of whether the applicant should be barred from proceeding with her Application because of the signed release.

11I see no error in this decision. While the applicant alleges that there was a misrepresentation made by the respondents that there was a staff reduction and that this misrepresentation led her to sign the release, I address in my Decision the components that she is required to establish to overturn a signed release on the basis of misrepresentation, which includes repudiation of the agreement within a reasonable time. As noted in my Decision, the applicant did not repudiate the agreement by returning the settlement monies, and therefore cannot rely upon this ground to overturn the signed release.

12The applicant also takes issue with the denial in the Interim Decision of her request for all documents addressed to her regarding the human rights issue prior to presentation of the termination letter. It is stated in the Interim Decision that it was apparent from the applicant’s request that no such documents exist, and that, in any event, all documents sent to the applicant should be in her possession. Once again, I see no error in the Interim Decision. This Tribunal cannot order production of documents which do not exist.

13In her reconsideration request, the applicant states that these documents, or the lack thereof, would prove that her human rights issues were never addressed. This was an argument that was made by the applicant at the preliminary hearing, and was considered by me and addressed in my Decision. Indeed, in evidence, the respondents’ witness frankly conceded that there was no separate allocation in the severance package to address any human rights issues. But that alone is not a sufficient basis to overturn a signed release where, as I found, the release is broad enough to include a release of claims under the Code.

14The applicant also relies upon criterion (c), namely that 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.

15The applicant first states that there was a violation of the Tribunal’s Rules of Procedure, in that she was requested to submit what she intended to say and will-says in advance of the preliminary hearing, while the respondents were not. The applicant states that Ms. Ruffo participated as a witness for the respondents, and the applicant was not prepared to question her as she had received no notice that Ms. Ruffo would be testifying.

16On January 29, 2010, the respondents filed a Request for Order seeking an order requiring the applicant to produce in advance of the preliminary hearing her witness will-says and all documents upon which she intended to rely. The applicant responded to this request by providing the documents she intended to rely upon and stating that she did not intend to rely on witness will-says. On February 11, 2010, the Tribunal wrote to the applicant to acknowledge receipt of this material and to request that the applicant advise whether she intended to testify at the preliminary hearing and if so to advise what she intended to say. The applicant did so in accordance with the Tribunal’s request.

17At the preliminary hearing, the respondents stated that they intended to call Ms. Ruffo as a witness to testify on their behalf in relation to the preliminary issue. No objection was raised by the applicant to this witness testifying, nor was any concern raised about the applicant having insufficient time to prepare to question this witness. Nor had any request been made by the applicant in advance of the preliminary hearing for the respondents to provide notice of any witnesses they intended to call or will-says.

18The Tribunal’s Rules of Procedure do not require parties to provide notice of witnesses or will-says in advance of a preliminary hearing. This requirement applies only to a hearing on the merits of an application. The direction provided by the Tribunal in its February 11, 2010 letter was in response to a specific Request for Order filed by the respondents. No corresponding request was filed was the applicant.

19In these circumstances, I find that no breach of the Tribunal’s Rules of Procedure or of the requirements of procedural fairness arose from the fact that Ms. Ruffo testified at the preliminary hearing.

20The applicant next states that I was not in possession of the applicant’s will-say statement and had not reviewed her statement in advance of the preliminary hearing. She states that I took about five minutes to review her will-say statement, and then told her that it was not necessary for her to present her “argument” at the hearing. The applicant takes the position that as a result, I failed to consider the entire context and circumstances of the matter before rendering my Decision.

21While I had reviewed the voluminous submissions from the parties on the preliminary issue in advance of the preliminary hearing, it is correct that I had not reviewed the applicant’s will-say statement in advance of the hearing as I was not aware of its existence. This will-say statement was included in two large volumes of materials filed by the respondents. At the preliminary hearing, the applicant brought to my attention that she had filed a will-say statement and that she intended to read this statement as her evidence in chief. I told her that it was not necessary for her to do this, and I adjourned the hearing to give myself the opportunity to review this document, which I did. I reviewed this document, which is 5 pages in length, carefully and thoroughly. When the hearing resumed, I affirmed the applicant and asked her if she adopted the contents of her will-say statement as her evidence and affirmed that the contents of this statement were true, which she did. I asked her if she had anything to add, and she said she did not. Respondents’ counsel then proceeded to cross-examine the applicant.

22I did not tell the applicant that it was not necessary to present her “argument” at the preliminary hearing. I told her that it was not necessary for her to read her written statement as her evidence, which I could and did read myself. After hearing the applicant’s evidence and the evidence of Ms. Ruffo, I then afforded all parties the ability to make full argument on the preliminary issue, which both the respondents and the applicant did. I considered all relevant evidence and submissions in rendering my Decision, including the relevant context and circumstances.

23The applicant next states that while I stated in my Decision that it was not the Tribunal’s role to parse an agreement to see whether all potential claims for compensation had been satisfied, I did observe that the applicant received more than her statutory entitlements. I made this observation because, where an employee only receives her or his minimum statutory entitlements upon termination, it can be argued that there was no consideration provided for the release. That was not the case in the instant Application.

24The applicant submits that it is the Tribunal’s role to be the guardian of human rights, which she submits includes a role in reviewing settlements to ensure that the agreement includes compensation for any human rights that might have been violated. While I certainly concur that it is the Tribunal’s role to be a guardian of human rights, I do not agree that it is the Tribunal’s role to go behind a signed settlement agreement and release which includes a release of claims under the Code to make some assessment of whether potential human rights claims have been compensated. Nor has the applicant cited any caselaw to support such a role for this Tribunal.

25The applicant next states that I relied upon testimony from Ms. Ruffo that was a bald statement without factual evidence that she would continue the applicant’s salary while she considered whether to sign the release. In fact, in my Decision, I only refer to this as being Ms. Ruffo’s evidence. I did not need to rely upon this evidence, and did not rely upon this evidence, in making my Decision to dismiss the Application.

26Finally, the applicant states that she submitted medical evidence in support of her position that she was under duress at the time she signed the release, and that I exceeded my jurisdiction by assuming that she was not under duress when medical evidence was submitted prior to and after the signing of the release. The medical evidence submitted by the applicant is expressly dealt with in my Decision at para. 14, where I stated:

The applicant has tendered medical evidence before me to support that at various times in the period both preceding and after the termination of her employment, she experienced mental health issues for which she either sought or received treatment. However, I have no medical evidence before me to support that at the time she signed the release, the applicant felt that she was being subjected to such intense pressure that it effectively overcame her will. In fact, the applicant’s conduct following the January 2, 2008 termination meeting and presentation of the proposed severance package is consistent with a person rationally exercising her will in deciding whether to accept the settlement. She sought and obtained legal and financial advice, she requested improvements to the proposed package, she took much of the time allotted to her to consider the proposed package, and she arranged to return to the corporate respondent’s premises to sign the release.

27It is certainly well within my jurisdiction to make such a factual determination, and I see no error in having done so.

28The applicant also states that she is relying upon the decision of the Divisional Court in Pritchard v. Ontario (Human Rights Commission) (1999), 1999 CanLII 15058 (ON SCDC), 45 O.R. (3d) 97 in support of her request, but does not identify any inconsistency between that decision and my Decision in the instant Application, nor do I find that there is any inconsistency.

29Accordingly, the Request for Reconsideration is denied.