Mu v. Cargill Foods, 2011 HRTO 1556

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zuihui Li on behalf of Ning Hui Mu

Applicant

-and-

Cargill Foods, a Division of Cargill Limited, Chris Reicker and Brad Haigh

Respondents

-and-

United Food and Commercial Workers Canada Locals 175 and 663

Intervener

RECONSIDERATION DECISION

Adjudicator: Sheri D. Price

Date: August 18, 2011

Citation: 2011 HRTO 1556

Indexed as: Mu v. Cargill Foods

WRITTEN SUBMISSIONS

Zuihui Li, Applicant, on behalf of Ning Hui Mu, Claimant ) Zuihui Li, Representative

1On May 27, 2011, the applicant filed a Request for Reconsideration of the Tribunal’s April 29, 2011 Decision in this matter, 2011 HRTO 846 (“the Decision”), dismissing the Application on the basis of delay. The applicant’s Request for Reconsideration is filed pursuant to s. 45.7(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Rule 26.5 of the Tribunal’s Rules states that 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.

3The applicant submits that the Tribunal ought to grant his Request for Reconsideration because there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; the decision is in conflict with established jurisprudence and Tribunal procedure; and because other factors exist that outweigh the public interest in the finality of Tribunal decisions. For the reasons that follow, I am not satisfied that any of these compelling and extraordinary circumstances exist, such that the Tribunal ought to exercise its discretion to reconsider its Decision in this matter.

NEW FACTS OR EVIDENCE THAT COULD POTENTIALLY BE DETERMINATIVE AND COULD NOT REASONABLY HAVE BEEN OBTAINED EARLIER

Claimant’s Travel Dates

4In his Request for Reconsideration, the applicant has not put forward any new facts or evidence that could potentially be determinative of the case and could not reasonably have been obtained earlier.

5In his Request for Reconsideration, the applicant submits that the claimant was out of the country from August 16, 2008 to June 30, 2009, except from February 28, 2009 to March 23, 2009, when she was in Canada. He submits that these are new facts that could be determinative of the case because it shows that the delay in filing the Application was incurred in good faith. Specifically, the applicant submits that the claimant, with her limited facility in English, could not have prepared and filed her Application to the Tribunal during the period that she was in Canada in February and March 2009.

6The information about the claimant’s travel dates was known to the applicant at the time of the November 24, 2010 hearing. If he had wished to rely upon the specific dates that the claimant was out of Canada in order to show that the delay in filing the Application was incurred in good faith, there is no reason the applicant could not have put it before the Tribunal at that time. Although, in his Request for Reconsideration, the applicant suggests that he was unable to provide the details of the claimant’s travel dates because he did not have enough time to do so during the hearing, the fact is that I specifically asked the applicant during the hearing when the claimant was out of the country in 2008 and 2009. The applicant certainly could have supplied the detailed information when he was invited to do so, but instead submitted only that the claimant had been out of the country “on and off”. (In fact, if the applicant wished to rely upon the claimant’s specific travel dates at the delay hearing, he was to have provided those facts (and any related documents) to the Tribunal and the other parties by no later than two weeks in advance of the oral hearing (Interim Decision 2009 HRTO 1839). In the circumstances, I am not satisfied that the dates on which the claimant was out of Canada are “new facts” which could not have reasonably been obtained earlier.

7Further, I am not satisfied that the “new facts” presented by the applicant are facts which could potentially be determinative of the case. Even taking the fact that the claimant speaks English as a second language into account, I do not agree with the applicant that the Application could not reasonably have been prepared during the period that the claimant was in Canada in February and March 2009, if the applicant wished to do it that way. Moreover, the fact that the claimant was out of the country on the specific dates in question is still not a reasonable explanation for the failure to file the Application within the one-year period following the date of the last incident (i.e. June 4, 2008), given the applicant’s submissions that he prepared and filed the Application while the claimant was out of the country and communicated with her via internet and telephone for that purpose.

Exchange of Positions By Counsel In Advance Of Hearing

8According to the applicant, the fact that counsel for the respondents and the intervenor apparently exchanged their respective positions on the delay issue in advance of the hearing interfered with the fairness and justice of the hearing. He submits that the fact that counsel had such an exchange of positions constitutes new evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. I do not agree.

9There is nothing improper about parties exchanging their positions on an issue with one another in advance of a hearing at the Tribunal. Moreover, this information is not relevant to the issue decided by the Tribunal (i.e. whether the Application was untimely and whether the delay in filing the Application was incurred in good faith) and thus could not be potentially determinative of the case.

CONFLICT WITH ESTABLISHED JURISPRUDENCE OR TRIBUNAL PROCEDURE

10In his Request for Reconsideration, the applicant contends that he did not have an adequate amount of time or a proper opportunity to present his submissions and evidence on the delay issue, which resulted in a hearing process which was unjust and unfair to the applicant. Among other things, the applicant contends that the respondents took up so much of the allotted hearing time making their submissions that the applicant did not have an adequate amount time to present his evidence and arguments. He also suggests that he was rushed by the adjudicator during his submissions. The applicant submits that the unfair hearing process puts the Decision in conflict with established jurisprudence and Tribunal procedures since fairness and justice are essential principles underlying all established jurisprudence, including Tribunal procedures.

11I do not agree with the applicant’s factual assertions about how the hearing unfolded. Moreover, contrary to the position taken by the applicant, I am satisfied that the applicant had a full and fair opportunity to present his submissions on the delay issue before the Tribunal rendered its Decision in this matter.

12In a November 2009 Interim Decision in this matter, the Tribunal directed the parties to submit “any written materials (including written submissions, documents or case law) or facts not already before the Tribunal” they wished to rely on at the oral hearing on the delay issue “no later than two weeks before the date of the hearing”: 2009 HRTO 1839 at para. 19. The applicant complied with this direction and filed very detailed written submissions in which he put forward his arguments that the Application had been filed within a year of the last incident to which the Application relates; and that the applicant had been unable to file the Application earlier than he did (i.e. that the delay had been incurred in good faith).

13At the November 24, 2010 hearing, the applicant had a further and full opportunity to present submissions on the relevant issues, orally, as well as an opportunity to respond to the respondents’ submissions (including by way of surreply). The applicant was also provided with an English-Cantonese interpreter to assist him and the claimant at the hearing (although, at the commencement of the hearing, the applicant indicated that mostly he did not need the interpreter’s assistance.) By and large, the applicant’s oral submissions at the hearing reiterated the arguments in his written submissions (except that the applicant clarified at the oral hearing that mental health issues did not contribute to any delay in filing the Application).

14Although the claimant did complain at least once during the respondents’ submissions that the respondents were taking too long in making their submissions, the applicant never indicated at the hearing that there were things he wished to say but was unable to because of time constraints. Nor does the applicant identify any arguments or evidence that he would have put before the Tribunal at the oral hearing if he had more time, other than the details about the claimant’s travel dates which has been addressed above. In all of the circumstances, I am satisfied that the applicant had a full opportunity to present his submissions on the delay issue before the Tribunal made its Decision in this matter. Moreover, there is nothing before me to suggest that the applicant would have said anything that added to his submissions in any meaningful way if he had more time to make his submissions at the hearing.

15The applicant also submits that I “refused his request” – at the end of the hearing - to submit the written document he referred to when presenting his oral submissions. He submits that this “refusal” was unfair and therefore in conflict with established jurisprudence and Tribunal procedure.

16Although “refusal” is too strong a word, I recollect that at the end of the hearing I declined the applicant’s suggestion that he submit to the Tribunal the written notes he had used to make his oral argument. As the applicant indicates in his Request for Reconsideration, I stated that since I had understood all of the applicant’s oral submissions, it was not necessary for him to submit his notes to me. In addition, it would have been procedurally unfair at that stage of the hearing to accept written submissions from the applicant, which had not been seen (or responded to) by the other parties. In any event, the applicant does not identify anything in the document in question that had not already been put before the Tribunal in his written and/or oral submissions (with the possible exception of the claimant’s travel dates, which I have addressed above). Accordingly, I am not satisfied that the document in question would have had any bearing on the Tribunal’s Decision in this matter.

17As for the applicant’s contention that the Tribunal accepted supplementary submissions from the respondents and the intervener, I do not recall this occurring. The Tribunal file indicates that the respondents did submit their casebook two days before the hearing. However, that is not the same as submitting written notes or submissions at the end of the hearing when the parties have already made their oral submissions.

18The applicant also suggests that the hearing was unfair because he did not have the opportunity to “question parties” or to cross-examine witnesses. This objection is without merit. No evidence was called by any of the parties in this matter so there were no witnesses whom the applicant could have cross-examined or questioned. Moreover, the applicant himself did not seek to call evidence and indicated at the commencement of the hearing that he was prepared to proceed on the basis of submissions.

19After the hearing, in March 2011, the applicant wrote to the Tribunal complaining that the intervener had withdrawn the claimant’s grievance after the November 2010 hearing before the Tribunal. He also submitted that it was inappropriate for the intervener to have pushed the claimant to attend a grievance appeal hearing while the Application was ongoing before the Tribunal. The Tribunal wrote to the applicant to ask whether he was seeking to put this information before the adjudicator in the form of post-hearing submissions. The applicant responded that he was and asked for guidance as to the appropriate procedure for doing so. The Tribunal inadvertently failed to respond to the applicant and his post-hearing submissions regarding the intervener’s actions were not brought to my attention before the Decision was released.

20Notwithstanding that I was not aware of the applicant’s desire to make post-hearing submissions before the Decision was released, the fact of the matter is that the applicant had an opportunity in his Request for Reconsideration to put forward any and all new facts or evidence or other submissions which he feels support reconsideration of the Decision.

21In his Request for Reconsideration, the applicant puts forward information about the intervener’s withdrawal of the claimant’s grievance in March 2011, but this information has no bearing on the Decision in this matter. The trade union’s actions following the November 24, 2010 hearing are not relevant to the issues determined in the Decision, namely whether the Application was filed in a timely manner; and if not, whether the delay in filing the Application had been incurred in good faith. Thus, the information would not have made any difference to the Decision if it had been put before me before the Decision was released.

22As for the applicant’s contention that the Decision did not clearly identify the date of the last incident to which the Application relates or the date on which the Application was filed with the Tribunal, I do not agree (see para. 35 of the Decision). In any event, even if the Decision were unclear in certain respects, that would not be a basis for reconsideration.

OTHER FACTORS EXIST THAT MIGHT OUTWEIGH PUBLIC INTEREST IN FINALITY OF DECISIONS

23Under this heading, the applicant submits that, because of language barriers, applicants who speak English as a second language need more time and effort to participate in the whole Tribunal process, from the filing of the application to attending the hearing. He submits that the Tribunal ignored this factor in its Decision, and unfairly and unjustly dismissed the Application as a result. In effect, the applicant does not agree with my conclusion that the delay in filing the Application had not been incurred in good faith. Reconsideration is not granted merely because a party disagrees with a Decision or thinks it unfair.

24In any event, the mere fact that the applicant and claimant speak English as a second language is not an explanation for the applicant’s failure to file the Application within the one-year time limit in the Code. Moreover, the applicant’s suggestion that he could not file a timely application because of language barriers is at odds with his submission, at the hearing, that the main reason for the delay in filing the Application was because the claimant wanted to “wait and see” if her human rights issues could be resolved through the grievance procedure.

25In this case, the applicant has not identified any of the sort of compelling and extraordinary circumstances which might cause the Tribunal to exercise its discretion to reconsider a decision.

26The Request for Reconsideration is dismissed.