Avila v. Toronto Zoo, 2011 HRTO 1127

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Miguel Avila

Applicant

-and-

Toronto Zoo and Curtis Shalapata

Respondents

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: June 9, 2011

Citation: 2011 HRTO 1127

Indexed as: Avila v. Toronto Zoo

WRITTEN SUBMISSIONS

Miguel Avila, Applicant ) On His Own Behalf and through

) Shelly Brown, Counsel

1Miguel Avila filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 26, 2009. He alleged discrimination in the area of employment on the basis of disability and race and alleged that he had been subjected to reprisal or the threat of reprisal.

2An Interim Decision was issued (2009 HRTO 807) and a conference call convened to hear the submissions of the parties and an affected party, the Canadian Union of Public Employees and its Local 1600 (the “union”) on whether the Tribunal should continue to deal with the Application given the existence of Minutes of Settlement signed by the applicant containing release language.

3As it became apparent that it would be necessary to hear evidence in support of the submissions being made on behalf of the applicant, the conference call was adjourned and the parties appeared in person for a half-day hearing on July 12, 2010.

4Having heard evidence and submissions from the applicant, the respondents and the union at the hearing and having considered additional case law filed after the conclusion of the hearing by applicant’s counsel, the Application was dismissed on September 30, 2010 (2010 HRTO 1989), on the basis that to allow it to continue would constitute an abuse of process, given the existence of Minutes of Settlement signed by the applicant on May 1, 2009, almost two months after the date this Application was filed.

5The May, 1, 2009 Minutes of Settlement were entered into in the context of an arbitration proceeding, in which the applicant agreed to withdraw all “grievances, applications, causes of actions, or complaints” outstanding as of the date of the signing of the Minutes of Settlement, specifically referencing applications under the Code.

6On October 29, 2010, counsel for the applicant filed a Request for Reconsideration of the Decision dismissing the Application, along with submissions in support of the Request.

7Subsequently, the applicant wrote to the Tribunal directly several times. He sought and received several extensions of time to allow his counsel to submit additional written submissions in support of the Reconsideration Request. Additional submissions were received from counsel for the applicant on February 10, 2011.

8A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondents.

Decision

9Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request that 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.

10It 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.

11In the Form 20 (Request for Reconsideration) submitted in October 2010, the applicant identified Rule 26.5 (c) and (d) as the grounds under which he sought to have the Decision reconsidered. He argued that the Decision was in conflict with established case law or Tribunal procedure and involved a matter of general or public importance and that factors exist that outweigh the public interest in the finality of Tribunal decisions.

12In particular, the applicant argues that the Decision does not take into account established principles of contract and human rights law in that provisions of the Minutes of Settlement themselves breached and had the effect of overriding the Code. The applicant also argues that although the respondent Toronto Zoo and the union had not met their obligations under the Minutes of Settlement, the applicant was held to its provisions and thereby denied protection of his rights under the Code.

13The arguments and relief requested in the present Reconsideration Request are similar to those that were presented by the applicant in writing and by counsel at the hearing in this matter. Counsel for the applicant argued at the hearing that the provisions of the Minutes of Settlement had the effect of “emasculating” the Code, that the Minutes had been rendered void because the respondents had not met their reciprocal obligations, and that the applicant ought not, therefore, be held to its terms.

14In addressing those very arguments, the Decision stated as follows:

Following his March 9, 2009 termination, the applicant was engaged in two processes, either of which could deal with the human rights issues arising out of his employment up to and including his termination on March 9, 2009. By signing Minutes of Settlement within the arbitration process, in which he was assisted by his union, the applicant elected to agree to a resolution of a number of grievances raising his human rights issues, as well as this Application naming the employer and the personal respondent, through that venue. Whatever may be the effect of the subsequent events, they did not result in voiding the agreement and enabling the applicant to pursue this Application.

I am also not persuaded by the applicant’s argument that the terms of the agreement are an attempt to override or “emasculate” the Code and ought not, as a result, be allowed to stand. As the Tribunal indicated in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, “Settlement is voluntary, reflecting the will of the parties, and there are many reasons a particular litigant may decide to settle. Every agreement to settle litigation involves fashioning an outcome acceptable to all parties, and a litigant may well not obtain everything sought.”

Having settled his human rights issues in the context of the arbitration proceeding, it would, in my view, constitute an abuse of the Tribunal’s process to permit the applicant to subsequently argue that he should be permitted to continue with this Application.

15As stated in a number of Tribunal decisions, a Request for Reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. The thrust of the submissions made in the October 29, 2010 Request merely reiterates arguments made earlier in the process. It is evident that the applicant disagrees with the Tribunal’s ruling. However, he has presented no basis to reconsider the decision.

16The submissions sent to the Tribunal on February 10, 2011, contain a second Form 20 (Request for Reconsideration) and a reference to Rule 26.5(a) as a ground for reconsideration. The applicant has attached and relies on a medical note completed by his physician on October 1, 2010. The applicant argues that the report was not available at the time of the hearing because it was prepared on October 1, 2010.

17I note that at the in person hearing held in July 2010, counsel for the applicant stated that the applicant did not take the position that he should not be bound by the Minutes of Settlement as a result of duress or capacity issues related to his disability; this position is clearly at odds with the arguments now being advanced.

18The two-page medical report attached to the submissions filed in February 2011 is from the applicant’s treating physician. Although the report refers to a number of attachments, none were included. The report indicates that the applicant has been unable to work since 2007 and refers to an application for long term disability benefits made in early 2008. The applicant’s physician’s view is that the applicant “does not have insight or a realistic assessment of his overall mental health state”. He indicates that he “advised (the applicant) at the time and ongoing since then” of that medical opinion.

19Although counsel for the applicant indicates that the “clinical notes are instructive regarding Mr. Avila’s state of mind at all material times”, there is no specific reference to the period during which the Minutes of Settlement were entered into by the applicant (May 1, 2009).

20Counsel for the applicant argues that the medical report supports the view that “Mr. Avila was obsessed to the point where he has an underlying psychiatric illness marked by lack of insight and comprehension”. However, a review of the two-page report shows that although the applicant’s doctor speaks about a “marked lack of insight” and indicates that the applicant’s perception of his own psychiatric conditions is faulty, he does not suggest difficulties in comprehension or indicate the applicant lacked the capacity in May 2009 to understand the contents and implications of the Minutes of Settlement signed by him.

21Finally, and most importantly, there is no explanation as to why this evidence could not have been reasonably obtained earlier than October 2010, since the doctor’s views were known, having been communicated to the applicant and third party benefit providers from 2008 onwards..

22While this particular two-page report may have been authored on October 1, 2010, I am not persuaded that the evidence contained in it was not reasonably available from March 2009, when the Application was filed, to July 2010, when the hearing was held. As the Practice Direction indicates, reconsideration is not an opportunity for a party to repair deficiencies in the presentation of its case.

23In the circumstances, the Request for Reconsideration is denied.