Sun Yuen Leung v. 798065 Ontario Limited o/a Concept Tooling & Manufacturing, 2010 HRTO 1914

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sun Yuen Leung

Complainant

-and-

798065 Ontario Limited o/a Concept Tooling & Manufacturing, Dave Hisey and Keith McNair

Respondents

RECONSIDERATION DECISION

Adjudicator: Mary Anne McKellar

Date: September 22, 2010

Citation: 2010 HRTO 1914

Indexed as: Leung v. 798065 Ontario

1The applicant has filed a Request for Reconsideration of Tribunal Decision, 2010 HRTO 1426, in which the respondent organization (“the Employer”) was found to have violated the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) when it failed to take reasonable steps to address allegations that the applicant had been subject to discriminatory behaviour by a co-worker. I found no contravention of the Code with respect to the circumstances in which the applicant’s employment with the Employer came to an end. I directed that the Employer pay the applicant $1000.00 in damages and that it amend its workplace policies and require its supervisory employees to take human rights training.

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, it is not necessary to seek submissions from the respondents.

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.

4Rule 25.5 of the Tribunal’s Rules of Procedure for Transitional Applications is applicable to this request. It provides:

25.5. 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.

5Additionally, the Tribunal’s Practice Direction on Reconsideration effective July 1, 2010 states:

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.]

6Reconsideration 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.

The Basis of the Applicant’s Request

7The applicant has grounded his Request on an assertion that the criterion in Rule 25.5(d) is met: there are other factors that outweigh the public interest in the finality of decisions and warrant its reconsideration. Specifically, the applicant alleges that there were flaws in my conduct of the hearing. He has cited seven instances of such flaws.

8The applicant’s first suggestion that there was a flaw in the hearing process is set out as follows:

1. On the day of the hearing, Tribunal member Mary Anne McKellar refused to admit the documents provided by the Registrar – Transition as hearing materials on the basis that the documents were mixed up by the Registrar – Transition during the photocopying of the documents. Instead, she admitted the documents provided by the Corporate Respondent. The Documents compiled by the Corporate Respondent did not include all the materials that were included in the documents received by the Registrar – Transition. Specifically, the Corporate Respondent had omitted from their copy of the record, the documentary evidence which I had submitted to the Registrar – Transition on April 12, 2010. By relying on the documents provided by the Corporate Respondent, and by refusing to admit the documentary evidence which I had previously submitted to the Registrar – Transition, the Tribunal member has thus breached the duty of procedural fairness. In addition, the Tribunal member has decided her case without taking into account all the evidence before her.

9I took steps to determine at the outset of the hearing that I had copies of all the materials filed by the parties that were necessary to my determination. There were some documents that were filed by the applicant pertaining to an issue that I decided at the outset was outside the scope of his Application (see paragraph 5 of the Decision), and it is true that I had no regard to them. There were also some documents filed by him which amounted to a sort of spreadsheet summary he had prepared based on the Commission’s investigation file and interview notes comparing what various interviewees were reported to have said at various times. I did not disregard the latter documents, but I did indicate to the applicant that I could not afford them any weight as an accurate record of what had occurred or what had been said at various points, and that my decision would be based on the testimony and evidence adduced before me at the hearing. In short, while there were some documents that the applicant filed that I did not examine or give weight to in the course of the hearing, it was because I had determined that they were not relevant or probative of any issue before me.

10The applicant’s second assertion of a flaw in the hearing process is as follows:

2. The Tribunal member failed to accommodate my disability when she refused to allow me to refresh my memory during my testimony by referring to my documents. Her failure to accommodate - despite my request based on my mental disability caused by my workplace injury and the fact that the incident in question happened 6, 7 years ago - effectively denied me a fair hearing as I was not given a full opportunity to present my evidence.

11The Decision deals at paragraph 34 with the issue of the applicant’s notes. He was not permitted to rely on them because he had not disclosed them to the respondents. At no time did he suggest that he needed to rely on the notes as an accommodation for any disability. In any event, he described the notes as containing references to 3 to 4 instances he had recorded in which his co-worker Jeff had made derogatory remarks about his race, ancestry or place of origin. While this evidence might have assisted in establishing that Jeff engaged in the behaviour alleged in the Application, Jeff was not a respondent in this proceeding. What was really at issue was not whether Jeff behaved as the applicant claimed he did, but how the Employer responded to allegations about Jeff’s behaviour. The basis of my finding that the Employer contravened the Code was that it had some knowledge of Jeff’s alleged behaviour towards the applicant and did not take reasonable steps to investigate or address it. This is set out in paragraphs 44 and 45 of the Decision. In other words, there was no prejudice to the applicant in not being permitted to rely on the notes.

12The next three flaws that the applicant has alleged with respect to the hearing are set out as follows in his Request:

3. The Tribunal member was biased, or in the alternative, there was an apprehension of bias on the part of the Tribunal member, as she assisted the witnesses for the Respondents in their testimony. For instance, at one point during the hearing, when the office manager Maureen Short was on the stand and was hesitant in answering a particular question, the Tribunal member assisted her by asking her a leading question, therefore allowing her to formulate an answer in favour of the Respondent’s position.

4. The Tribunal member also reached her decision without regard to the facts before her, by misconstruing the facts and by making erroneous findings of facts. For instance, the Tribunal member asked me why I did not contact the Corporate Respondent when it sent me some letters. I provided three reasons to her, namely: a) my psychiatrist told me not to (please see attachment 2); b) the staff of the Ontario Human Rights Commission advised me that I not contact the company without their involvement; and c) I was scared due to a prior case involving another worker named Rick who was assaulted after he was called back to the company. Even though the Tribunal member asked me to repeat these reasons, which I did so, in her decision, at p.7, para. 28, she wrote I said “everyone knows they call people back to work just to put them in a room and beat them.” I never said that.

5. Similarly, contrary to her findings at p.7, at para.28, I never said Keith used to punch me. Her findings in this respect were also not based on the evidence before her.

13The applicant and I clearly have a different recollection of the evidence. I do not know what his is based on, but mine is based on what I independently recall and the notes I took contemporaneously. I asked questions initially of all the witnesses and then allowed the opposing party to cross-examine. My notes reflect that I asked Maureen Short very few questions and none of them leading. I did ask her if she recalled a conversation with the applicant over where he parked his car, and she said “no”. I also asked if she had any recollection of the applicant ever complaining to her, verbally or in writing, about Jeff’s behaviour, and she said “no”. Neither of these are leading questions. In any event, while there was a discrepancy between the applicant and Ms. Short on the question of whether he had ever complained to her about Jeff, I specifically found that I did not need to resolve that discrepancy.

14With respect to what the applicant has set out in paragraph 4 of his Request reproduced above, I agree that he provided three reasons why he did not contact the Employer when it sent him correspondence. In fact, he repeated those three reasons more than once. I referred only to the third reason he provided. My notes indicate that he said what I reproduced in the Decision, and they also reflect that he said Keith punched him. Both statements influenced my assessment of the applicant’s overall credibility. My assessment of credibility was only material to the determination of what occurred between the applicant and Dave Hisey, and I also provided other reasons why I found Mr. Hisey’s testimony to be more reliable.

15The sixth flaw that the applicant identified is set out by him as follows in his Request:

6. There are other similar errors of findings of facts in the decision, which I noticed at paragraphs 16, 17, 18, 19, 20, 22, 25, 27, 28, 29, 30, 32, 35 and 40. The Tribunal member has either misconstrued the evidence that I have given, or alternatively, if it was a question of communications due to my English language ability, that I was being denied a fair hearing because of the Tribunal member’s inability to understand my English. Rather than proceeding with the hearing, the Tribunal member should have adjourned the hearing and requested for an interpreter to be present in order to hear my evidence.

16In the first sentence of the above paragraph, and possibly in the second as well, the applicant is complaining essentially about my weighing of the evidence. I will return to this point below. With respect to the balance of the paragraph, I note that the applicant chose to participate in this proceeding in English, although that is not his first language. All his documents were filed in English and his testimony was provided in English, and that was the language in the workplace. He did not request an interpreter so that he might testify in a different language. English is my first language, and that of the other parties and witnesses as well it appeared, and none of us needed an interpreter to participate fully in a hearing that was conducted in English. I did have to ask the applicant to repeat things sometimes to ensure that I had understood him correctly, but that is not an unusual occurrence in a hearing and can happen for a variety of reasons: a witness may be softspoken; or speak too quickly; or speak with an unfamiliar accent; or be talking about matters where some definitions or contextual information is required in order to understand what is being said. The applicant did not express that he had any difficulty in understanding me or the respondents, nor did he request an interpreter as a form of accommodation.

17The applicant’s final assertion of a flaw in the hearing is set out by him as follows:

7. On p.8, at para.29, the Tribunal member wrote “It was agreed at the hearing that the reference to August 23, 2001 in paragraph 4 of the applicant’s complaint was an error.” There was never such an agreement. There were a lot of discussions at the hearing about the documents. But since I was the only person who was not allowed to look at the documents, I had no idea what the Tribunal member and the Respondents were talking about. By disallowing me to refer to the documents, and by making rulings about the hearing process without providing me a full opportunity to comment, the Tribunal member has thus breached the duty of procedural fairness.

18My notes reflect that the parties agreed at the outset of the hearing that the applicant’s final day worked for the Employer was August 20, 2004. His ROE reflects that. In his complaint, the applicant referred to an incident in the workplace involving Mr. Hisey that occurred on August 23, 2004. The event he identified as having occurred on that date was also said by him to have occurred on his last day of employment. On that basis, I indicated in my decision that the parties had agreed that the reference to August 23, 2004 was in error. Even if I had not understood that the parties were in agreement on that fact, I would have found it to be the case based on the evidence.

19Furthermore, whether August 20, 2004 or August 23, 2004 was the date of the alleged incident was not material to the outcome of the Application or to the determination of any issue in it. The only document referred to in connection with this issue was the ROE issued to the applicant and which was provided to him by the respondents in their book of documents produced in advance of the hearing.

20A Request for reconsideration is not an opportunity to remedy deficiencies in the presentation of one’s case. The applicant had a full opportunity to state his own case and to challenge the evidence of the respondent witnesses in cross-examination. I heard all that testimony and based my findings of fact and my assessments of credibility on them. The applicant clearly disagrees with the outcome, and with my assessment of those facts. That is not an appropriate basis for reconsideration, and amounts to an attempt to re-argue or re-present his case. These observations suffice to dispose of the grounds set out in paragraphs 4, 5 and 6 of his Request. Furthermore, the flaws he alleges in paragraphs 1,2,3,and 7 of his Request did not have any material impact on the outcome of the case.

DECISION

19The applicant has not established that the criteria in Rule 25.5(d) support reconsideration of the Decision in this Application. Nor do the other criteria apply. The Request for Reconsideration is therefore denied.