HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ralph Lastella Applicant
-and-
Oakville Hydro Corporation, Dan Steele and Marcia Best Respondents
RECONSIDERATION DECISION
Adjudicator: David Muir Date: July 20, 2011 Citation: 2011 HRTO 1350 Indexed as: Lastella v. Oakville Hydro
1On June 30, 2011, the applicant filed a Request for Reconsideration of Decisions (“Request”), made in this case pursuant to section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). In those Decisions, the Application was allowed in part.
2Section 45.7 of the Code states:
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.
3The Tribunal’s Rules of Procedure For Transitional Applications, pursuant to sections 53(3) and 53(5) of the Code, provide that any party may request reconsideration of a decision in accordance with Rule 25.5. Rule 25.5 provides:
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.
4The applicant’s relies on paragraphs (c) and (d) above. While this is not completely clear from the applicant’s submission, it appears that the applicant is taking issue with four of the five decisions issued in this case. The applicant takes issue with what are described as two Interim Decisions, one on liability (2010 HRTO 1765) and then a Decision on remedy (2011 HRTO 1071). Reference is also made to two Interim Decisions dated June 20, 2009 (2009 HRTO 933) and October 20, 2009 (2009 HRTO 1722). As I understand the applicant’s submissions, the errors he complains of were made in the two latter Decisions but only became evident in the final decision on liability and remedy (2010 HRTO 1765 and 2011 HRTO 1071 respectively). As the issue in this reconsideration relates primarily to the determinations made in 2009 HRTO 922 and 2009 HRTO 1722, unless a specific reference to one of the four Decisions is required, the reference “Decisions” will refer to these latter two Interim Decisions
5The applicant states that the Decisions do not follow established Tribunal jurisprudence in that I denied the applicant a full opportunity to respond to the respondent’s allegation that there was a non-discriminatory reason for its decision to terminate the applicant’s employment not for cause prior to the events giving rise to the Application. The applicant states that by refusing to allow the applicant to reframe the substance of the Application in response to the respondent’s claim that it had made a decision to terminate the applicant prior to the events giving rise to the Application I denied the applicant a full opportunity to respond. The applicant also states that I refused to consider his claim that the employer had failed to meet its duty to accommodate him when it failed to inquire into whether the applicant’s actions in the summer of 2006 were influenced by his health and, if so, to reconsider its decision to dismiss him not for cause. The applicant states that I refused to admit an IME report for the purpose of establishing a disability in the summer of 2006 and a nexus between the alleged performance issues informing the decision to terminate not for cause. The applicant also states that I acted in an arbitrary manner in calculating the notice period to which the applicant might have been entitled. The applicant claims that these errors and omissions lead to breaches of procedural fairness and natural justice, both of which are matters of general importance to him and all parties before the Tribunal.
6Finally, the applicant states that each of these conclusions is a reviewable error which resulted in unfairness and prejudice to him. The applicant states that the Tribunal's need to ensure fairness in its proceedings by correcting its errors outweighs the public interest in the finality of Tribunal decisions.
7At the core of the applicant’s disagreements with the Decisions made in this Application is my conclusion that the scope of the Application must be confined to the allegations made in the complaint.
8The background to this preliminary issue was set out in my reasons in 2009 HRTO 933:
The respondents take the position that the applicant has attempted to expand the subject matter of the complaint contrary to section 6.3 of the Rules of Procedure for Transitional Applications (the “Transitional Rules”). For his part the applicant takes the position that a purported amendment of the respondents’ Response is an improper attempt to expand the response filed with the Commission contrary to the Rule 7. I will deal with these issues in turn although there is some overlap between them. I will then deal with some other matters with a view to expediting the hearing process.
The Complaint
In his complaint the applicant alleged generally that his right to equal treatment in employment without discrimination on the basis of disability was infringed by the respondents and that the respondents failed in their obligation to accommodate his disability contrary to section 5 and 17(2) of the Code. The particulars provided in the complaint are paraphrased below:
In May 2001, the applicant commenced employment with the corporate respondent in the position of SCADA Protection and Control.
On January 2, 2007, the applicant alleges that he worked his regular day and at the end of the day left work as scheduled. On January 3, the applicant alleges he emailed his superior to advise that he was taking a vacation day. This was common practice in the applicant’s experience. The applicant also indicated to his supervisor that he was not felling well.
On January 3, 2007, the applicant alleges that he attempted to log on to the respondent corporation’s email but was locked out.
On January 4, 2007, the applicant alleges that he attended his doctor’s office at 9:00 a.m. but because he had no appointment he was required to wait. At approximately 1:30 p.m., he saw his physician who diagnosed stress and depression. The doctor prescribed Lorazapan and wrote a note for the corporate respondent indicating that the applicant should be off work for four weeks. The applicant alleges that when he got home he immediately emailed the employer and attempted to provide them with the information necessary for them while he was absent from work.
On January 5, 2007, the applicant received an email from the corporate respondent indicating that he had been terminated and acknowledging receipt of the doctor’s note.
The applicant also stated that he had attempted to provide them with the SCADA password but that the respondents had not provided him with the information he needed in order to comply with their requests.
The applicant alleges that prior to his termination there were no serious performance criticisms and no indication that his job was in jeopardy.
The applicant stated that the termination of his employment was based on the fact that he suffered from a disability that required him to have four consecutive weeks off work. It is further stated that he particularly believed this as, in the past, he had always been required to put his vacation and personal needs on hold in order to be available to the Respondent 24/7.
9As can be seen from the summary of the complaint, the claim made was quite narrow – in essence the claim was that the applicant’s employment was terminated because he asked for or required a four week medical leave of absence.
10The applicant sought to expand the scope of the complaint considerably with the addition of a number of allegations that altered the nature of the complaint. Amongst other new issues the applicant sought to add were allegations that he was subjected to unfair and inappropriate treatment by the respondent Steele from 2004 to the summer of 2006 and beyond. The applicant also alleged that starting in the summer of 2006 Steele increased his mistreatment of the applicant and that his disability was, in whole or in part, caused by Steele. The applicant also sought to add an allegation that he was a person with a disability in July 2006 and that a disagreement with management that lead to a decision to dismiss him from his employment was informed in whole or in part by that disability.
11The applicant stated that these new allegations were advanced in response to the respondents’ amendment of their Response to the complaint. In October 2008, some 15 months after the complaint was filed and a year after their initial Response, the respondents amended their Response by asserting for the first time that they had made a decision to terminate the applicant not for cause in July 2006, six months prior to the events giving rise to the complaint.
12My determination of this issue from 2009 HRTO 933 is set out here:
The legislative intention as set out in the transition provisions is that section 53(3) applications should be dealt with in a highly expeditious manner. To that end, the Tribunal developed Rules to foster a fair, just and highly expeditious process. In particular Rule 6.3 states:
- Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission and the Tribunal will not entertain preliminary requests to add grounds, expand the subject matter of the complaint or add parties to the Application. (emphasis added)
The essence of the complaint is the allegation the applicant was terminated by his employer because he was in need of four weeks off work to address a medical issue. There is no suggestion in the complaint that the disability was caused by the conduct of the respondents or that Mr. Steele had mistreated the applicant for a number of years creating a poisoned work environment. There is no suggestion in the complaint that the disability pre-dates the events of January 2007 or that the respondents ought to have been aware of it.
To the extent that the additional facts or allegations contained in the January 5 and 7 correspondence and attached material expand the scope of the complaint to include allegations that the work environment was poisoned by the inappropriate and unfair treatment of the applicant by Mr. Steele and this treatment resulted in a disability, Rule 6.3 prevents such an expansion. However, as the applicant points out, he is entitled to challenge the bone fides of the respondents’ decision to terminate him. The response includes allegations of performance issues going back several years prior to January 2007. The applicant is entitled to challenge those allegations and to the extent that the respondents’ decision might be said to have been made in bad faith or was simply irrational, it is open to the applicant to ask that an inference be drawn that the decision was informed to some degree by his disability.
To be clear, this is not a wrongful dismissal case and it is by and large irrelevant whether or not there was just cause for the termination. Rather, the human rights question that arises is whether or not a factor in the decision to terminate the applicant’s employment on January 5, 2007 was that he was, or was perceived to be, a person with a disability who required four weeks off work to attend to his medical issues. In answering that question it does not matter from a human rights perspective if the respondent Steele was a terrible manager as alleged by the applicant or even that he mistreated him. Equally, the causes of the applicant’s disability are not relevant to the question raised by the complaint, nor is the question of when he began to experience the disability given that the respondent has agreed that on January 5,2007 he was a person with a disability.
In my view, it would significantly detract from the expeditious nature of the proceeding to entertain the applicant’s allegations respecting Mr. Steele’s performance as a manager and the causes of his disability. The applicant states that it is all merely background and is not intended to expand the scope of the complaint. As indicated above, as background much of it will be irrelevant to the issues identified in the complaint and will I find add significantly to the hearing time required to deal with this Application.
Accordingly, except to the extent that the new allegations described in paragraphs 6 (a), (b), (c) and 7 above are responsive to allegations of poor performance relied upon by the respondents to support their decision, they are not properly part of this Application and are irrelevant to any issue in dispute. Obviously which of the multitude of allegations made by the applicant is captured by this determination will be difficult to set out precisely before hearing the evidence of the respondents. I will canvass the implications of this below.
Is the Amendment to the Response Improper?
The applicant states that Rule 7 does not allow the respondents to file an amended response where it is alleged the amendment fundamentally alters the nature of the defence offered to the complaint.
I do not agree. There is nothing in the language of Rule 7 which would prevent a respondent from alleging new or different facts in response to the complaint and Application. Clearly different considerations apply as between respondents and applicants seeking to change their position. The applicant determines whether to proceed under section 53(3) or 53(5). As indicated above the legislative intent was that applications under section 53(3) be dealt with in a highly expeditious manner and that Rules be developed for these cases accordingly. It is for this reason that the Rules seek to confine the scope of the hearing to the allegations and issues arising from the complaint as filed with the Commission or as amended while in the carriage of the Commission.
Of course the usual rules of fairness prevail and if the amendment was made so late in the day that the applicant is unable to reply to the new response it is possible the response might be rejected. This is not the case here and although the new allegations of the respondents may well give rise to questions at the hearing, the respondents are not prevented by the Rules from altering or amending their response to the complaint.
13I understand that the applicant does not agree with that determination, but it is not inconsistent with Tribunal jurisprudence. The applicant referred to two Decisions of the Tribunal which he claims are inconsistent with the Decisions here: Williams v. Ottawa Internationals Soccer, 2009 HRTO 48 and Forrest V. OLGC 2009 HRTO 47. With respect, they are not inconsistent with the Decisions. The Decisions relied on by the applicant turn on their particular circumstances and are clearly distinguishable. For example, in Williams, above, I allowed an applicant to advance a new legal theory based on a different ground based on the same facts as were alleged in the complaint. However, I note that in Forrest, above, a very early Decision, the request to amend the complaint by adding a new ground of alleged discrimination was denied.
14The applicant was not able to point to any decision wherein the Tribunal allowed a party to expand the scope of the complaint by the addition of entirely new allegations of the kind advanced by the applicant in this case. Contrary to the applicant’s central submission, to allow the applicant to expand the scope of the complaint or as he put it, to reframe it, would have been entirely inconsistent with an extensive body of jurisprudence at the Tribunal (see amongst many others Berger v. Toronto (City), 2010 HRTO 142; Khaiter v. York University 2009 HRTO 1489; Gwyn v. Toronto (City) 2009 HRTO 2135; Cattan v. Compucentre, 2011 HRTO 321; DeFrietas v. Ontario Public Service Employees’ Union, 2010 HRTO 281).
15Much of what the applicant bases his Request on flows from the denial of his request to expand or reframe the complaint. So, for example, the applicant submits that I refused to consider his claim that the employer failed to meet its duty to accommodate him when it did not inquire into whether the applicant’s actions in the summer of 2006 were influenced by his health. The applicant is correct, I did not. I did not because, for the reasons outlined above, I had not allowed the applicant to expand or reframe the complaint underlying the Application to include an allegation that he was a person with a disability in July 2006 and that his disagreement with the respondents was influenced by the alleged disability.
16Similarly, the applicant states that I did not admit an IME for purposes of establishing that the applicant was a person with a disability in July 2006. The IME report was admitted into evidence subject to restrictions (see 2009 HRTO 1722):
Based on the allegations as set out in the complaint, I determined that the allegations that the applicant’s disability began months prior to his termination; that it was caused by the respondents’ treatment and that the respondents ought to have been aware of it were not issues in this Application. I also concluded that his state of health prior to January 5, 2007 was not in issue as the respondents conceded that he was a person with a disability at the time they terminated his employment. It follows that to the extent the medical report is relied upon as probative of those allegations, it is not admissible as those are not issues in this case.
Accordingly, I did not consider in the liability phase of the hearing whether the IME established that the applicant was a person with a disability in July 2006 because that was not an issue for determination in the proceeding.
16The applicant’s ultimate submission in his Request for Reconsideration is that it was fundamentally unfair and a denial of procedural fairness and natural justice to allow the respondent to amend its Response and not similarly allow him to expand his allegations or reframe the complaint in response. This issue was dealt with in two Interim Decisions in this proceeding. Firstly in 2009 HRTO 933 above, and then again in 2009 HRTO 1271 both in the passage above at paragraph 11, as well as in the following:
The applicant also states that the respondent employer has alleged after this Application was filed, that a decision to terminate him, if not the timing of it, was made in the summer of 2006 based on alleged performance issues beginning at that time and therefore, it would be unfair to prevent him from leading evidence that he was ill beginning in the summer of 2006 in full answer to these allegations.
I do not agree. For the reasons set out above and in the prior decision, whether or not the applicant’s work performance might have been affected by illness in the summer of 2006 is irrelevant to the issues as framed in the complaint - there is no allegation in the complaint that the applicant was ill prior to the events of January 2007 or that the employer ought to have been aware of any alleged illness prior to that time. I also note that there is no suggestion that the contents of Dr. Hines’ report were unknown to the applicant or his representatives at the time, when the human rights complaint was filed with the Commission.
17The applicant had a complete opportunity to make argument on this issue. I made decisions with which the applicant evidently disagrees. However, contrary to the applicant’s submission, my conclusions on the scope of the Application were not inconsistent with the Tribunal’s jurisprudence. As indicated above, a decision allowing the applicant to expand the complaint in the manner he proposed would have been entirely inconsistent with an extensive body of Tribunal jurisprudence. Given this conclusion, I have no authority in these circumstances to reconsider this issue. Having concluded that the impugned Decisions are not inconsistent with Tribunal jurisprudence, there is no need to consider whether or not these aspects of the case raise issues of general and public importance.
18The applicant states that the need to ensure fairness by correcting error outweighs the public interest in Tribunal decisions (Rule 25.5(d)). However, because the Decisions are not inconsistent with Tribunal jurisprudence or practice and the applicant articulated no other factor which might outweigh the public interest in the finality of the Tribunal, I am unable to grant a reconsideration on that basis.
19Finally the applicant also takes issue with my determination in 2011 HRTO 1071 that the notice of dismissal would have run from the date his short-term sick benefits ended and if the applicant had not already been terminated he might have returned to work. The applicant states that this conclusion was either based on no evidence or was contrary to the limited factual conclusions that I reached. The discretion to reconsider a final decision does not extend to a party’s disagreement with a finding of fact, except in extraordinary circumstances which do not exist here.
20For all of these reasons the Request is dismissed.
Dated at Toronto, this 20th day of July, 2011.
”signed by”_________
David Muir Vice-chair