Arias v. Centre for Spanish Speaking Peoples, 2010 HRTO 1978

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margarita Arias

Applicant

-and-

Centre for Spanish Speaking Peoples

Respondent

RECONSIDERATION DECISION

Adjudicator: Alison Renton

Date: September 28, 2010

Citation: 2010 HRTO 1978

Indexed as: Arias v. Centre for Spanish Speaking Peoples

INTRODUCTION

1The applicant filed an Application on July 29, 2008 under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code") alleging discrimination in employment on the basis of age and reprisal. Initially, the Application named the Centre for Spanish Speaking Peoples (the "Centre" or "respondent") and Ontario Public Service Employees Union, Local 512 ("OPSEU") as respondents, but further to an Interim Decision, 2009 HRTO 1025, ("the Interim Decision"), the Tribunal dismissed the Application in its entirety against OPSEU and dismissed the Application on the basis of reprisal against the Centre.

2On September 3, 2010, following a three day hearing, the Tribunal issued a Decision, 2010 HRTO 347, dismissing the Application (the "Decision").

3On September 20, the applicant filed a Request for Reconsideration ("the Request") along with an email setting out concerns with the Decision. The applicant sent the Tribunal another email dated September 23, 2010, and attached letters dated September 21 and 22, 2010 to this email. The Tribunal has considered all of this communication in deciding the Request.

4Pursuant to Rule 26.4 of the Tribunal's Rules, a respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances, the Tribunal did not deem it necessary to seek submissions from the respondents.

REQUEST FOR RECONSIDERATION

5Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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 exit that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

6It is also useful to consider the Tribunal's Practice Direction on Reconsideration, which states in part:

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 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.

7In the Request, the applicant indicated that Rules 26.5(b), and (d) apply. She alleges the Tribunal failed to: adjudicate her claim of wrongful dismissal without prior notice to the applicant; adjudicate issues of discrimination against her son; fully and thoroughly investigate into her allegations of discrimination (including the name of the job search agency); base the Decision upon submitted caselaw; and award financial remedies including loss of income and damages. She alleges the Tribunal knowingly and improperly allowed the respondent's witnesses to testify without being subpoenaed and took issue with the credibility of some of the respondent's witnesses and the order in which the respondent's witnesses testified. She seeks, as a remedy, the "same remedy as stated at the Hearing or at least an apology from the CSSP about defamation in the community against me and my son".

8The Tribunal has considered Rule 45.7(b) in situations in which a party has failed to attend a hearing and the Tribunal has issued a Decision without that party's participation. In this situation, the applicant attended the 3 day hearing in person and therefore the factors required for Rule 45.7(b) have not been met. It appears that the Tribunal sent the Decision to the applicant's previous address rather than the address the applicant provided the Tribunal in June 2010. This Reconsideration Decision will be sent by the Tribunal to the address as provided by the applicant to the Tribunal in June 2010.

9While the applicant did not mark off that the Decision is in conflict with established case law or Tribunal procedure, she addresses these points in her Request. She alleges that the Tribunal failed to consider the appropriate age comparator group in documentary evidence that was entered as exhibits. In support of this point, she references Arzem v. Ontario (Community and Social Services), 2006 HRTO 17 in which the Tribunal held:

To determine whether a claim is indeed discriminatory, it must be determined whether there is a conflict between the purpose and effect of the impugned law and the purpose of subsection 15(1) of the Charter. That determination must be made through an analysis of the full context surrounding the claim and the complainant. [emphasis added]

10Arzem, supra, is distinguishable from the applicant's allegations of age discrimination. In Arzem, supra, the applicants raised a constitutional challenge before the Tribunal when they argued that the definition of "age" under the Code as it then was infringed section 15(1) of the Charter. In Arzem, the Tribunal's decision focussed on the wording in the statute that was allegedly discriminatory, applied a Charter analysis to that statute and found the language of the statute to be discriminatory. In the Decision, the Tribunal determined that the applicant failed to prove, on a balance of probabilities, that she was discriminated against on the basis of age rather than reviewing a statute to determine if its wording was discriminatory.

11The applicant alleged in her Request that justice was not applied because the respondent did not follow Rules 3.1 and 3.2 in subpoenaing its witnesses, the Tribunal knew of this "illegality" prior to the admission of the respondent's witnesses because I did not sign any respondent blank summons forms but nonetheless permitted the respondent's witnesses to testify. She alleges that "Witnesses testified knowing that their testimonies against a union member (the applicant) is against the Collective Agreement but anyhow some decided to do so" and that some of the respondent's witnesses were not credible in various parts of their testimony. With respect to the Tribunal, the applicant alleges:

This acting of the Adjudicator shows premeditation on procedural unfairness and questions her credibility. The Adjudicator['s] intention was never to follow due process as the Adjudicator never accord[ed] due process within the parties, specifically on the above imposition that the Respondent's witnesses be first in their testimonies.

12Rules 1.7(j), 3.1 and 3.2 provide:

1.7 In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

(j) determine and direct the order in which evidence will be presented.

3.1 On the request of a party, the Tribunal will provide a summons to witness in blank form, dated and signed by the Tribunal adjudicator, and the party may complete the summons and insert the name of the witness;

3.2 Delivery of a summons to a witness and payment of the attendance money is the responsibility of the party who obtained the summons.

13There is no requirement that a witness be subpoenaed to attend. The Tribunal's Guide called "Guide to Preparing for a Hearing before the Human Rights Tribunal of Ontario" says, with respect to witnesses:

Each party is responsible for making sure that a witness the party wishes to call to give evidence, shows upon the dates scheduled for hearing the application.

If a party is concerned that a witness may not attend to give his or her evidence at the hearing, or if the party wants added assurance that a witness will come to the hearing, it can summon the witness. It must do so by contacting the HRTO to get a signed Summons to Witness (Form 24). Sometimes a witness wants a Summons in order to be able to be absent from work.

14The issue of the order of the witnesses and the issue of some of the respondent's witnesses not being subpoenaed was addressed at the hearing and in the Decision as reflected in paras. 5 and 7 which state:

5The parties agreed that Ms. Mariera, Ms. Cook, Ms. Martinez and Mr. Castillo could testify before the applicant. [They testified in this order.]

7Part way through the testimony of the respondent's witnesses, the applicant expressed concerns that the respondent's witnesses had not been subpoenaed. She requested that the Tribunal not admit their evidence. I allowed their evidence because the Tribunal's Rules do not expressly require witnesses to be subpoenaed. Subsequent to the applicant raising this as a concern, each of the remaining respondent witnesses testified that they did not feel coerced, obliged or forced to testify for the respondent.

15The collective agreement referenced by the applicant was introduced as an exhibit at the hearing. There is no restriction on a unionized employee testifying against another unionized employee. The applicant has not been able to point out that the hearing process is inconsistent with the caselaw and/or the Tribunal's Rules.

16It is important to note that the credibility issues raised in this Request, were the subject of submissions before the Tribunal, and dealt with in its Decision. In 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 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.

17The Application, as filed by the applicant, and, after the Interim Decision, the Statement of Material Facts, alleged discrimination in employment on the basis of age. The allegations about reprisal were dismissed by the Tribunal in the Interim Decision. Neither the Application nor the Statement of Material Facts alleged discrimination on the basis of family status or made reference to any allegations about the applicant's son. The Application was not brought on behalf of another person (ie. a next friend (a parent) filing on behalf of a minor child). While the Tribunal heard some evidence about the applicant's son, as they were not allegations that were part of the Application or the Statement of Material Facts, they were not included in the Decision because they were not relevant to the issue of whether the applicant was discriminated against in employment on the basis of age.

18Further, the Application and the Statement of Material Facts do not allege that the applicant has been terminated. As reflected in para. 4 of the Decision, "Up to the time of the hearing, the applicant was still an employee of the respondent, although she has been off work for medical reasons since January 2008". Accordingly, any allegations that the applicant was wrongfully dismissed, and any damages flowing from such a dismissal, were not considered by the Tribunal because they were not part of the allegations set out in either the Application or the Statement of Material Facts.

19The applicant has not identified the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal's Decision.

20The Request for Reconsideration is denied.