HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Una Clennon
Applicant
- and-
Toronto East General Hospital
Respondent
RECONSIDERATION DECISION
Adjudicator: Mark Hart
Indexed as: Clennon v. Toronto East General Hospital
1This Decision addresses a Request for Reconsideration by the applicant in relation to the Tribunal’s Case Resolution Conference Decision 2009 HRTO 1242 dated August 11, 2009 and its Decision on Remedy 2010 HRTO 506 dated March 5, 2010.
2On April 5, 2010, the applicant filed a Request for Reconsideration of the Tribunal’s Decisions.
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 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.
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.
10The applicant 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.
11In relation to this ground, the applicant relies primarily upon information obtained from an individual named Germaine Lee, who also was a manager at the same level as the applicant at the respondent Hospital and who worked under the same Director. Ms. Lee also was terminated by the Hospital without cause.
12In order to grant a reconsideration request on the basis new evidence, I must be satisfied that it could not reasonably have been obtained earlier. The material submitted by the applicant in support of her reconsideration request states merely that “despite the best efforts of the Applicant she did not come to learn the new evidence cited herein until recently”. In my view, that is far from satisfying me that this evidence could not reasonably have been obtained earlier. No information is provided as to what efforts the applicant made to contact Ms. Lee, when these efforts were made, or why they were unsuccessful.
13In addition, at least some of the new evidence cited is not potentially determinative of the case and may not even be admissible or relevant. One aspect of the new evidence relates to the reason for the previous termination of the applicant’s Director at another hospital. This is character evidence of marginal, if any, relevance. Another aspect of this evidence is that Ms Lee also was fired without cause by the same Director. The applicant has not established the relevance of this evidence to her allegation of age discrimination.
14The applicant also asserts that Ms. Lee would testify that she was one of several co-workers who the applicant named as evaluators for her 360-degree assessment, but the Director did not seek Ms. Lee’s input or the input of at least seven other evaluators. The 360-degree assessment was clearly being relied upon by the respondents in response to the Application. No explanation is provided as to why the applicant could not reasonably have obtained this evidence earlier, whether from Ms. Lee or from any of the seven other evaluators whose input the applicant asserts was not sought.
15The applicant also asserts that Ms. Lee would testify that she attended a meeting with the applicant at which Hospital management specifically instructed them to approach older nurses and encourage them to take a severance package. In this regard, I note that the applicant’s reliance upon this meeting was asserted for the first time at the initial hearing day on April 3, 2009. No explanation is provided as to why evidence in support of the applicant’s own evidence in relation to this meeting could not reasonably have been obtained prior to the conclusion of the hearing on June 12, 2009.
16Finally, the applicant asserts that she was not aware until March 3, 2009, prior to the commencement of the hearing, that the two manager positions that had been held by her and Ms. Lee had been re-structured into one position held by a younger individual. As this information was obtained prior to the commencement of the hearing, I do not understand how it can constitute “new evidence”.
17The 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, and criterion (d), namely that other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
18The applicant first states that I improperly relied upon hearsay evidence to find that there were legitimate concerns about the applicant’s work performance. The applicant submits that the main part of this evidence was the 360-degree assessment, which involved input from the applicant’s superiors, subordinates and peers. The applicant states that the respondent did not call the individuals who provided input into this assessment, so that they could be subjected to cross-examination. The applicant states that the respondent also relied upon various e-mails, letters and notes relating to the applicant’s performance, but the individuals who wrote these documents or were involved in the referenced incidents were not called as witnesses or subjected to cross-examination.
19In my view, and with respect, the applicant misunderstands what needs to be established in a discrimination case, what evidence is relevant, and whose burden it is to call witnesses. This was a circumstantial evidence case. While the applicant provided direct evidence that her age was referenced in two comments made to her by the Director, there was no direct evidence that age was a factor in the termination decision. That, of course, is not unusual.
20As indicated in my Decision, in order to make out a circumstantial evidence case, the applicant must first establish a prima facie case and she bears the burden of proof. In reviewing the evidence, I found that the applicant had satisfied this burden. An evidentiary burden then shifted to the respondent to bring forward evidence to establish a legitimate, non-discriminatory explanation for the termination decision. The respondent satisfied this evidentiary burden through the evidence of the Director, who was the one who made the termination decision and who provided detailed testimony as to the performance issues that had been brought to her attention through the 360-degree assessment and the e-mails, letters and other information she received from various employees.
21It is not the respondent’s obligation to prove that every detail of every piece of information obtained by the Director was accurate. Rather, the evidentiary burden on the respondent was merely to come forward with evidence of a legitimate, non-discriminatory explanation from the decision-maker. Some of the information obtained by the Director may have been inaccurate, over-stated or just plain wrong. But if she genuinely relied upon this information about performance issues in making her decision to terminate, and did not rely upon age as a factor, then she has provided a non-discriminatory explanation.
22This distinguishes a discrimination case from a wrongful dismissal case where an employer alleges cause for dismissal. When an employer alleges cause, it is the employer’s burden to affirmatively prove that it had cause. It is not enough for an employer to elicit evidence that the person who made the termination decision believed she or he had cause. The employer must actually prove that cause existed. Not so in a discrimination case. In a discrimination case, the employer’s burden is only to provide evidence of a legitimate, non-discriminatory reason for the termination decision.
23Once the respondent had brought forward evidence of a non-discriminatory explanation, it was then up to me as the adjudicator to determine on balance of probabilities whether it was more likely that the termination decision was made for performance reasons or that age was a factor in that decision. In a discrimination case, the burden of proving discrimination always rests on the applicant. So ultimately it was up to the applicant to prove that her age was a factor in the termination decision. One of the ways an applicant can do this in a circumstantial evidence case is by bringing forward evidence to prove that the explanation proffered by a respondent was a pretext for discrimination, for example by calling evidence to prove that performance-related incidents that supposedly were relied upon did not happen and were known to the person who made the termination decision not to have happened. While I heard from the applicant about the various incidents at issue, no other such evidence was called by her or was sought to be called by her.
24I also do not agree with the characterization of the 360-degree assessment and the performance-related information from e-mails, letters and notes as “hearsay evidence”. Evidence is hearsay evidence when a third party relates what was told to her in an attempt to assert the truth of the statement made. In the instant case, the respondent was not proffering the 360-degree assessment and other performance-related information in order to establish the truth of the statements made therein. Rather, this information was put forward in support of the Director’s evidence that she relied on these performance-related issues as the explanation for her termination decision, and that the applicant’s age was not a factor. The relevant issue for me was why did the Director make the decision to terminate the applicant’s employment and was her age a factor in that decision, and the Director provided direct evidence on that issue.
25The applicant takes issue with the fact that some performance issues were never raised with her. This was addressed at length in the applicant’s submissions before me and in my Decision, and indeed provides the basis upon which I ultimately found partially in the applicant’s favour. However, the fact that some performance concerns were not raised with the applicant by the Director does not necessarily mean that the Director didn’t nonetheless have these concerns. Indeed, upon an exhaustive review of the evidence in my Decision, it was my determination that while the Director did not raise some of the specific performance concerns with the applicant, she nonetheless was concerned about the applicant’s performance and that was the reason she made the decision to terminate.
26The applicant also submits that I made inconsistent findings of fact, based upon my finding that there was a legitimate basis to support the Director’s performance concerns and yet I also found that some of these concerns were not raised with the applicant. For the reason stated above, I do not see these factual findings as being inconsistent.
27Finally, the applicant states that my Decision on Remedy is not supported by the evidence, and that the applicant was entitled to be reinstated, if not as a manager, as a staff nurse. This argument is expressly addressed in my Decision on Remedy at paras. 26 to 28. No reason or argument is advanced to cause me to alter my determination in this regard.
28Accordingly, the Request for Reconsideration is denied.
Dated at Toronto, this 16th day of August, 2010.
”signed by”___________
Mark Hart
Vice-chair