Andrew Scarlett v. Hamilton Health Sciences Corporation, 2010 HRTO 771

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Scarlett

Applicant

-and-

Hamilton Health Sciences Corporation

Respondent

RECONSIDERATION DECISION

Adjudicator: Sherry Liang

Date: April 12, 2010

Citation: 2010 HRTO 771

Indexed as: Scarlett v. Hamilton Health Sciences Corporation

WRITTEN SUBMISSIONS

Andrew Scarlett, Applicant ) On his own behalf

Hamilton Health Sciences ) Mark Zega, Counsel

Corporation, Respondent )

1This is an Application filed on October 8, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). By Decision dated January 4, 2010 (Scarlett v. Hamilton Health Sciences Corporation, 2010 HRTO 5), the Tribunal dismissed the Application.

2The applicant filed a Request for Reconsideration of the Tribunal’s Decision. The respondent was directed to and did file submissions in response to the Request. The Tribunal has also received a reply to those submissions from the applicant.

RECONSIDERATION OF A TRIBUNAL DECISION

3Section 45.7 of the Code provides the Tribunal with explicit 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 26 reads, in part, as follows:

26.5 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; 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 and orders.

6The 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.

7As is evident from the above, 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 PARTIES

8In the Request, the applicant relies on the criteria in Rule 26.5(a) and (c). The new evidence the applicant submits in support of his Request is a report from a psychiatric consultation, dated July 3, 2009. The applicant submitted other material in support of his Request, but the medical report is the “new evidence” he relies on for the purpose of Rule 26.5(a).

9The applicant states that subsequent to the Tribunal hearing of his Application, he received a diagnosis of “Somatization disorder”, a “psychiatric diagnosis applied to patients who chronically and persistently complain of varied symptoms that have no identifiable physical origin.” He also submits a note from a doctor dated September 29, 2009, which appears to conclude that he is lactose intolerant.

10The medical report submitted by the applicant is based on visits with the psychiatrist in May and June 2009. The report lists, under the heading “diagnostic issues”, four categories, including the following:

“1. Conversion/somatization – by that I mean he tends to describe emotional issues in terms of physical symptoms”

11The applicant has also provided material from various websites which describe “somatization disorder”. Based on this material, the applicant submits that at the time of his termination from employment, he was mentally disabled. He states that he was totally disabled due to a somatization disorder, which he describes as a “psychiatric diagnosis applied to patients who chronically and persistently complain of varied symptoms that have no identifiable physical origin.”

12The applicant submits, in essence, that the new evidence establishes that he had a mental disability as of the date of his termination of employment. He submits that if permitted to call the psychiatrist to give evidence about his condition, the evidence will “prove once and for all, and beyond a shadow of doubt…that I did indeed have a Code related disability at the time of my unlawful termination.”

13The applicant refers to the respondent’s “negligent failure to properly investigate”, leading to a denial of any possible accommodation. He states that the respondent should have been concerned for his physical and mental health, and should have ordered him to engage in exhaustive medical tests, both physical and psychological. He uses as an analogy the example of the owner of a fridge who suspects a problem and cares enough about it to check further and find out for sure.

14In sum, the applicant suggests that the Hospital should have made further inquiries into the presence of a disabling psychiatric condition before terminating his employment for refusal to return to work.

15On his submission that the Tribunal’s decision is in conflict with established case law, the applicant submits that the doctrine of issue estoppel does not apply to his case, because the arbitrator determining his entitlement to sick pay under the respondent’s plan for sick benefits made no findings about a psychiatric condition. In that the issue of a Somatization Disorder was not before the arbitrator but is now before the Tribunal, issue estoppel, he submits, has no application.

16The applicant also raises the issue of the scope of the arbitrator’s jurisdiction, referring to her statements that she was making no findings about the applicant’s discharge grievance under the collective agreement to support his position that issue estoppel does not apply.

17Assuming that issue estoppel does not apply, the applicant reviews the evidence in support of his position that his hernia created a condition of total disability which the Hospital should have taken into account in its decision to terminate his employment.

18The respondent opposes the Request. Among other things, the respondent submits that even if the new evidence the applicant wishes to introduce was truly unavailable and stands for what the applicant claims it does (both of which it disputes), it would not have been potentially determinative of the result. The respondent was not aware of any psychological disorder at the time of the events, and even the applicant was not aware of any such issue. The respondent states that it had no notice or constructive notice of a mental disability. It was therefore under no duty to accommodate a mental disability in this case.

19The respondent submits that given the information before it, and the applicant’s position, it properly accommodated him regardless of what diagnoses he may have acquired after the fact.

20The respondent notes that even in the Request, the applicant continues to state that he did not need accommodation, only that he was terminated while disabled. The respondent submits that outside of a failure to accommodate there is no breach for firing someone who happens to be disabled. If the applicant really means that he was fired because he was disabled, then a disability of which the employer had no knowledge cannot be the basis for such a claim.

DECISION

21On the material before me, I am not satisfied the Decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance, within the meaning of Rule 26.5(c). In support of the application of this criterion, the applicant submits essentially that the new evidence he wishes to submit leads to the conclusion that the Tribunal did not correctly apply the doctrine of issue estoppel.

22There is no conflict between the decision to apply issue estoppel and established jurisprudence or Tribunal procedure. It is apparent from the arbitrator’s decision that the question of whether the applicant was totally disabled as a result of a psychiatric and not a physical condition was not before her, and was not part of her determinations. The Tribunal’s decision therefore made no finding that issue estoppel applied to any findings of a mental disability by the arbitrator. As the Tribunal made no finding on the issue the applicant claims gives rise to a conflict, there can be no “conflict” between the Tribunal’s decision and established jurisprudence.

23Rule 26.5(c) does not therefore support the request to reconsider the Tribunal’s decision.

24Turning to the applicability of Rule 26.5(a), the applicant must establish that the new evidence he submits a) could potentially be determinative of the case and b) that he could not reasonably have obtained it earlier.

25For the purpose of this decision, I will accept the contents of the medical report as proposed “new evidence.” The applicant also submitted other background material, such as information about somatization disorder from various websites, but none of this can be viewed as “evidence” within the meaning of Rule 26.5.

26Even assuming, without deciding, that the applicant could not reasonably have obtained the medical report earlier, I find that it could not potentially be determinative of the case.

27As described in the decision, under the Code, it would be discriminatory for an employer to terminate the employment of a disabled employee if the employee’s needs could be accommodated without undue hardship. The Code does not prohibit dismissal of an employee who is incapable of performing the essential duties of their job, but it does prevent an employer from taking such action if the employee’s needs could be accommodated so that he or she is still able to fulfill the basic obligations associated with the employment relationship.

28In assessing whether this respondent fulfilled its duty to accommodate, the Tribunal’s Decision referred to the procedural and substantive components of the duty to accommodate. It referred to the decision in Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362, which discussed when an employer’s duty to accommodate arises:

The test is whether the respondent knew or ought reasonably to have known that the applicant had a disability requiring accommodation…[paras. 35-36]

29The medical report submitted by the applicant states simply and without elaboration that the applicant “tends to describe emotional issues in terms of physical symptoms”. Although it uses the term “somatization”, it does not attribute to the applicant some of the more extreme effects of “somatization disorder” that are described in the literature the applicant has provided to the Tribunal.

30Even assuming that the July 2009 report can be taken to describe the applicant’s condition as of September 2008, it would be difficult to conclude that it could have triggered a duty to accommodate on the part of the respondent. The statement that the applicant “tends to describe emotional issues in terms of physical symptoms” does not clearly describe a disability that requires accommodation in the workplace. Without detailing the rest of the report, a number of other psychiatric issues were also identified but none of a nature that would lead an employer to reasonably understand the applicant had a disability that required accommodation in the workplace.

31More importantly, however, the information in the medical report was not known to the respondent at the time of the events giving rise to this Application. The report was not generated until ten months following the respondent’s actions, and was based on information obtained from visits with the psychiatrist eight to ten months after the applicant’s termination from employment. It was not disclosed by the applicant at all until this request for reconsideration was filed, some 16 months after his termination.

32The Tribunal appreciates that it may take some time for an individual to investigate medical issues and to obtain access to specialists. These comments are not intended to suggest that the applicant was at fault in failing to obtain the medical report earlier. The question before the Tribunal, however, is whether the respondent violated the Code in September 2008 in dismissing the applicant on the basis of his absence from the workplace. The applicant now states that the respondent should have investigated the possibility of a mental disability. The question in this request for reconsideration is therefore whether the information in the medical report of July 2009 could have led to a different finding by the Tribunal about the events in September 2008, if it had been before the Tribunal at the time of the hearing.

33I am unable to conclude that the new evidence could potentially be determinative of the outcome. As I have indicated, the information in the medical report was not before the respondent at the time of its decision in September 2008. The new evidence does not change the nature of the information that was known to the employer in September 2008. Even assuming that it may have provided some hindsight on the applicant’s circumstances at the time, that hindsight was not available to the respondent and could not reasonably have been known to the respondent when it made its decision to dismiss the applicant.

34The applicant refers to some of the evidence he gave at the hearing about his frequent visits to doctors. The applicant also gave evidence at the hearing that while he was trying to get to the bottom of his medical issues, he received a referral to the Hamilton Anxiety Disorder Clinic and was seeing a psychiatrist. However, he stated that he did not advise either the respondent or its consultant about these as he saw them as private matters. All of this evidence was before the Tribunal and was considered by the Tribunal. The new evidence does not change my assessment of these events and, in particular, my determination that based on the information before it and the position taken by the applicant, the respondent did not violate the Code.

35Before concluding, I note that the applicant referred several times in his submissions to his contention that his dismissal was contrary to the collective agreement. Although they may overlap, the issues before the Tribunal are different from those raised under the collective agreement. As described in the Tribunal’s decision, the respondent relied on a “deemed termination” provision in the collective agreement in terminating the applicant’s employment. The issue of whether the respondent properly applied that provision could include but is not limited to the question of whether the respondent’s actions were consistent with its obligations under the Code. The role of the Tribunal is not to assess whether the respondent was entitled to apply this provision, but only to determine whether the respondent violated the applicant’s rights under the Code. The Tribunal makes no finding about whether the applicant’s dismissal was justified under section 9.03 of the collective agreement.

36In sum, the applicant has not established that the criteria in Rule 26.5(a) and (c) support reconsideration of the decision in this Application. Nor do the other criteria apply. The Request for Reconsideration is denied.