HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Davis Complainant
-and-
Ontario Human Rights Commission Commission
-and-
City of Toronto Respondent
-and-
Toronto Professional Firefighters’ Association Intervener
RECONSIDERATION DECISION
Adjudicator: Sherry Liang Date: June 7, 2011 Citation: 2011 HRTO 1095 Indexed as: Davis v. City of Toronto
WRITTEN SUBMISSIONS
Robert Davis, Complainant | Self-represented
1On April 21, 2011, I issued a decision upholding this complaint and ordering certain remedies (2011 HRTO 806).
2On May 24, 2011, the complainant filed a Request for Reconsideration.
3It is unnecessary for me to seek submissions from the other parties as I find no basis to grant the Request.
4The Tribunal’s Rules of Practice, governing complaints referred to the Tribunal by the Ontario Human Rights Commission, include the following provisions in relation to a request for reconsideration:
Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.
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.
5Although this Request was filed beyond the 30 day time limit established by Rule 98 and the complainant has not provided an explanation for the delay, I will nonetheless consider the complainant’s submissions.
6The complainant seeks reconsideration of three areas of my decision, relating to
- The finding that the complainant’s lack of full disclosure during the hiring process would have led the respondent to refuse to hire him, and that this reason was not a pretext for a discriminatory refusal to hire but was genuine and had a reasonable basis in the events.
- The decision not to award the complainant the position of firefighter or damages for lost income.
- The decision to award a public interest remedy different from that sought by the complainant and the Ontario Human Rights Commission (OHRC).
7I have reviewed the complainant’s submissions on all three areas. The complainant submits, in essence, that I arrived at the wrong conclusions. In his review of the evidence, he submits that I failed to “properly weigh or consider all of the evidence” and that there was “no evidence” to support my findings on misrepresentation. The complainant relies on the written submissions of the OHRC provided during final argument.
8With respect to the remedies ordered, the complainant again submits that the evidence does not support my findings, or that there was no evidence with respect to some findings, and relies on the written submissions of the OHRC.
9He submits in summary that
The Tribunal’s decision ignores or fails to properly weigh key evidence; and engages in speculative reasoning and/or makes findings without an evidentiary basis. The public interest in addressing these concerns and upholding the integrity of the process outweighs the finality of the Tribunal’s decision.
10The complainant’s submissions requests that the reconsideration power be used to “take a fresh view” of the case, correct errors or allow readjustments to the Tribunal’s earlier decision. He concludes, “I believe the human rights process owes me this much.”
11The Tribunal’s Practice Direction on Reconsideration states, among other things, that “[r]econsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.” Further, the Tribunal provides, as examples of situations where the Tribunal might decide it is not advisable or it is inappropriate to grant a request for reconsideration:
- where a party disagrees with and wishes to challenge a finding of fact, including findings made about the credibility of witnesses;
- where a party wishes to repair perceived deficiencies in the presentation of the party's case by either re-arguing it or raising new arguments in support of it.
12On my review of the Request and the complainant’s submissions, I find he has not established the existence of any of the criteria in Rule 102 that would warrant reconsideration of my decision. The submissions amount to re-argument or further argument on issues that were addressed at the hearing and which I considered in arriving at my determinations. The fact that the complainant disagrees with my determinations, quite strenuously, is not a reason to reconsider the decision. As is apparent from the Rules and Practice Direction, reconsideration is not an avenue to seek a “second look” at a decision. Absent extraordinary circumstances, parties to proceedings before the Tribunal are entitled to rely on the finality of its decisions.
13There is no basis for the submissions that evidence was ignored or findings were made without any evidentiary basis. The evidence in support of my findings is referred to in the decision, which speaks for itself, and I do not find it necessary to repeat that evidence or those findings here.
14I wish to address one point made by the complainant, to the extent that it is based on a misapprehension of the evidence. The complainant submits that I was wrong in finding that the respondent would not have hired him because of misrepresentation, because the evidence showed that other candidates who had not disclosed medical conditions were still able to maintain their positions. He submits that Dr. Forman testified that he “frequently encountered individuals who had undergone surgeries but had not disclosed this information at the outset of the medical examination”, and that none of these individuals were disqualified.
15On my review of the evidence, the doctor was cross-examined about his experience with other firefighter candidates. Many of the examples on which he was asked to comment were given as hypothetical situations, such as erectile dysfunction, removal of warts, or a dental cavity, and he was asked for his views on whether the failure to disclose these conditions would disqualify a candidate. His evidence was that in his actual experience, candidates completed the medical information form correctly in the “significant majority of the time”. The only circumstance identified in his evidence where he experienced a significant number of candidates who did not disclose a history of prior surgery was in the example of laser surgery. Dr. Forman testified that he did not view this as a misrepresentation that would lead to disqualification of a candidate.
16Even given the evidence about laser surgery, it does not establish that Dr. Forman “frequently encountered individuals who had undergone surgeries but had not disclosed this information at the outset of the medical examination”, and who had not been disqualified from a position with the respondent.
17I appreciate the complainant’s disappointment with the outcome. Clearly, his expectation was that the proceeding would result in a position as a firefighter with the respondent, as well as an award for lost income. For the reasons given in my decision, I found that he was not entitled on the facts and law to this outcome. There is no basis to re-visit that decision.
18In sum, I find that the complainant has not shown that the circumstances meet any of the criteria in Rule 102, and the Request for Reconsideration is denied.
Dated at Toronto, this 7th day of June, 2011.
“Signed By”
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Sherry Liang Vice-Chair