Matthews v. Chrysler Canada, 2010 HRTO 862

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Philip Matthews

Applicant

-and-

Chrysler Canada Inc. and The Manufacturers Life Insurance Company

Respondents

-and-

Canadian Autoworkers Union Local 1285

Intervenor

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: April 20, 2010

Citation: 2010 HRTO 862

Indexed as: Matthews v. Chrysler Canada

INTRODUCTION

1These are two Applications, one filed under s. 34 of Part IV, and the other under section 53(5) of Part VI, of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, in which the applicant alleges discrimination in employment on the basis of disability and reprisal.

2In an Interim Decision, 2010 HRTO 647, dated March 24, 2010, the Tribunal made a number of preliminary rulings, including ordering that the two Applications be heard together. The Tribunal also granted a request to remove three personal respondents.

3On March 29, 2010, the applicant filed a Request for Reconsideration with respect to the removal of the personal respondents. He also made two additional requests for orders during proceedings, which are also dealt with in this Decision.

REQUEST FOR RECONSIDERATION

4Section 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 exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

5It 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 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.

6The applicant has raised two objections to the decision removing the personal respondents. In his Form 20, he checked the boxes representing factors (b) did not receive notice of the proceeding; and (c) conflict with established case law. I will consider his arguments in the context of Rule 26.5.

7There does not appear to be any basis for the applicant’s claim that he was entitled to notice but, though no fault of his own, did not receive notice of the proceeding. There is every indication that he had notice of the respondents’ request to remove the personal respondents and in fact made submissions on the issue. He points to errors he made in his submissions of February 11, 2010 and February 15, 2010, which were incorrectly dated 2009. It is not clear how these errors disclose a notice issue, and in any event the errors did not prejudice the applicant’s position on the preliminary request.

8Regarding the applicant’s claim that the decision removing the personal respondents is in conflict with established jurisprudence, the applicant cites three cases: Persaud v. Toronto District School Board, 2008 HRTO 31, Glavassevich v. Sunnybrook Health Sciences Centre, 2010 HRTO 348, and Latronico v. York Region District School Board, 2009 HRTO 1803.

9The Persaud case is routinely cited as a “lead case” on the issue of whether to remove personally-named respondents as parties to a Tribunal proceeding. In Persaud, the Tribunal was not persuaded there were compelling reasons to continue the proceeding as against the personal respondents. The other two cases cited by the applicant are decisions in which the Tribunal allowed the proceeding to continue as against the named personal respondents.

10The jurisprudence establishes, therefore, that the question of whether to proceed as against personal respondents is a case-specific exercise. However, as the Tribunal stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14:

Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason.

11I considered the Persaud factors when deciding the respondents’ request and found no compelling reason to continue this proceeding as against the personal respondents. While the applicant disagrees with this conclusion, the decision is final and there is no basis under Rule 26.5 to grant reconsideration. Reconsideration is not an opportunity to re-argue a case: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34. Once the parties to a case have had the opportunity to make submissions and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

12I have determined that the factors at Rule 26.5(b) and (c) are not present. Reconsideration is denied.

REQUESTS FOR ORDERS

13The applicant also filed two Requests for Orders with respect to production of documents. He asks that the respondents be ordered to produce a copy of the contract/agency agreement. He also asks that the intervenor be ordered to “produce all files”, and specifically “any and all complaints/grievances against and/or involving the ‘individual respondents’”. He further requests that the intervenor not be entitled to production of the applicant’s documentary productions.

14The respondent Chrysler filed a response on April 8, 2010, opposing the production request on the basis that it is premature and, alternatively, that the document is confidential. The respondent Manulife and the intervenor union did not file submissions in response to the applicant’s Requests for Orders.

15The Tribunal’s Rules establish disclosure requirements and deadlines. It is premature at this stage in the proceeding to make any production orders. Once the matter is scheduled for a hearing and disclosure deadlines are set requiring the production of arguably relevant documents, the parties may then raise any issues as to the sufficiency of production.

16Regarding the extent of disclosure to the intervenor, pursuant to the Interim Decision, the union is entitled to full disclosure in respect of both Applications, subject to any subsequent determination by the adjudicator assigned to hear the case.