Jason Garcia v. Tri-Krete Limited, 2010 HRTO 1638

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Garcia

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Tri-Krete Limited

Respondent

RECONSIDERATION DECISION

Adjudicator: Kathleen Martin

Date: August 4, 2010

Citation: 2010 HRTO 1638

Indexed as: Garcia v. Tri-Krete

1The respondent has filed a Request for Reconsideration of Tribunal Decision, 2009 HRTO 2181, in which the respondent was found to have violated the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) when it terminated the complainant following his report of an injury and request for accommodation in a telephone call to his supervisor. The Tribunal awarded various remedies including damages.

2Other parties are not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the complainant or the Ontario Human Rights Commission.

RECONSIDERATION OF A TRIBUNAL DECISION

3Section 45.7 of the Code provides the Tribunal with authority to reconsider its decisions:

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.

4Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

5Rule 102 reads as follows:

102. 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;

(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;

(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 and orders.

6The Tribunal’s current Practice Direction on Reconsideration effective July 1, 2010 begins with the following:

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. [Emphasis added.]

7While the Practice Direction in effect at the time of the filing of this Request contained some minor differences, the differences are not material. 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.

SUBMISSIONS OF THE RESPONDENT

8In the Request, the respondent relies on the criteria in Rules 102(c) and (d). Having considered the submissions made, I am not satisfied that the Decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance, or that there are other factors that outweigh the public interest in the finality of decisions.

Decision In Conflict With Jurisprudence

9The respondent argues that the Tribunal’s Decision is in conflict with well-established legal principles as set out in Supreme Court of Canada and Tribunal case law. The respondent challenges every significant conclusion made by the Tribunal: namely, that there was a disability; the disability was a factor in the termination; and the respondent breached its obligation to accommodate by not meeting the procedural content of that obligation. A central theme in the respondent’s submissions is an interpretation of the Tribunal’s Decision that the Tribunal “accepted” the respondent’s evidence that it disbelieved the complainant when he reported an injury and therefore the Tribunal could not have reached the conclusions made. This interpretation is not accurate.

10The Tribunal’s findings of fact are set out in paragraphs 5 through 15. The facts include that the respondent knew the complainant had injured his hand and was seeking accommodation (para. 10); the complainant was advised that his employment was terminated because it was not “working out” (para. 11); and at no time during the two telephone calls did the supervisor ask the complainant for documentation supporting his “injury” and “request for accommodation” (para. 12). The Tribunal did not make a specific finding that the respondent “disbelieved” the complainant.

11The respondent appears to rely on paragraph 19 in support of its argument that the Tribunal accepted that the respondent disbelieved the complainant. However, while referring to this “evidence”, paragraph 19 did not make a finding that the Tribunal accepted the “evidence”. Instead, that paragraph addresses the respondent’s submissions that in order to establish a claim of discrimination based on disability, objective medical evidence was required providing proof of an impaired function from work. There was no evidence presented that the absence of a medical note was a factor in the respondent’s decision at the time.

12In paragraph 24, the Tribunal considers the specific evidence of the complainant’s supervisor related to this point – that this was a “Monday morning call” and that the complainant did not want to come to work after a weekend – and rejects the evidence as not being credible. Elsewhere, in paragraph 30, the Tribunal considers the respondent’s argument about the disbelief and concludes as follows:

While the respondent argued that they simply did not believe the complainant, even if I accept this evidence, it does not preclude a finding of discrimination. It is not necessary to prove intention to discriminate, but rather it is the effect on the complainant that matters in determining whether or not discrimination has occurred.” [Emphasis added.]

13It is apparent from a review of the Tribunal’s Decision that the Tribunal did not make a positive “finding” that the respondent’s witnesses disbelieved the complainant, although it did state that in even if such evidence was accepted, it would not affect its finding of discrimination.

14In challenging the Tribunal’s finding that there was a disability, the respondent suggests that the Tribunal made a “finding” that a disability may exist even without proof of physical limitation or functional disability and yet did not properly apply the contextual analysis suggested by the Supreme Court of Canada in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665.

15In the Tribunal’s Decision, the background facts were summarized at paragraphs 5 through 15 and then in the context of these findings, the Tribunal considered and applied the statutory language. In its Decision, the Tribunal found that the complainant was restricted from performing the usual tasks of the labourer position and that there would invariably be a requirement for a period of recovery. In short, the Tribunal found a functional limitation. While the Tribunal goes on to refer to the Supreme Court of Canada decision, this reference was not a “finding” as suggested by the respondent, but rather an acknowledgement that a disability “may” exist even without proof of physical limitation or functional disability, a reference directed to address the respondent’s argument to the contrary. I do not find that this conclusion is in conflict with the law.

16The remainder of the respondent’s submissions based on Rule 102 (c) appear to be an attempt to reargue the case, which is not a proper ground for reconsideration. For the most part, the respondent relies on cases previously referred to and submissions already made.

17For example, the respondent argues that the Tribunal failed to properly apply the “procedural” dimension of an employer’s duty to accommodate as set out in Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 (upheld 2008 CanLII 39605, (ON. S.C.D.C,)) (“Lane”) relying in part on its interpretation noted above, but also on facts already addressed in the Decision such as the absence of a medical note. While I agree with the respondent’s submission that there were some factual differences between Lane and those in this case, its principles are applicable. I do not find the Tribunal’s decision in finding a violation of the procedural content of the duty to accommodate in the circumstances outlined in the Decision, to be in conflict with Lane or any other applicable law.

Failure to Provide Adequate Reasons

18The respondent also argues that the Tribunal failed to provide adequate reasons for its Decision and that this resulted in a breach of the duty of procedural fairness and the principle of natural justice. Among other things, the respondent states in a very summary fashion that the Tribunal failed to place the onus on the correct party in determining disability, discrimination, damages and mitigation; and failed to provide adequate reasons regarding the credibility findings made, to adequately explain the decision-making process and to respond to the respondent’s legal arguments regarding the complainant’s obligations.

19The Tribunal provided reasons for each of its conclusions, including those on credibility. While absence of adequate reasons may result in a breach of natural justice, I am satisfied that the reasons given in the Decision are sufficient. While the respondent may disagree with those reasons, disagreement with the Tribunal’s reasons, is not a proper basis for reconsideration.

OTHER ISSUES RAISED

20In the alternative, the respondent asks that if, after reconsideration, the Tribunal maintains its finding that the complainant was discriminated against, the remedy be varied.

21Among other things, the respondent seeks a reduction in the quantum of compensation for lost wages for reasons which include the insufficiency of documentary or other evidence, which is described as “names of employers, start and finish dates as requested by cross-examination”; and on the basis that the applicant failed to take any reasonable steps to mitigate his damages or provide proof of any such efforts.

22A request for reconsideration is not an opportunity to remedy deficiencies in the presentation of one’s case. The respondent had a full opportunity to challenge the evidence of the applicant in cross-examination and to make submissions on the remedy being sought in its final submissions. Contrary to the submissions made now, the respondent did not cross-examine the complainant about the names of employers, start and finish dates as described in the Request. The Tribunal’s Decision specifically references the absence of a challenge by the respondent to the evidence provided by the complainant in paragraph 40:

…while the respondent suggested in its submissions that the complainant failed to take any reasonable steps to mitigate his damages or provide proof of his efforts or the quantum claimed, the respondent did not challenge the evidence on the complainant’s efforts in the hearing before me.

23Finally, the respondent argues that the pre-judgment interest should be reduced because of the delay in issuing the Decision. I do not find that any compelling or extraordinary circumstances exist to vary this or any other aspect of the remedial order.

DECISION

24The respondent has not established that the criteria in Rule 102(c) and (d) support reconsideration of the Decision in this Application. Nor do the other criteria apply. The Request for Reconsideration is therefore denied.