HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jean-Yves Bernard Applicant
-and-
Lakehead University, Lakehead University Faculty Association, Gillian Siddall, Ray Raslack, Laurie Hayes, and Frederick Gilbert Respondents
AND B E T W E E N:
Ronald Harpelle Applicant
-and-
Lakehead University, Lakehead University Faculty Association, Gillian Siddall, Ray Raslack, Laurie Hayes, and Frederick Gilbert Respondents
RECONSIDERATION Decision
Adjudicator: Michelle Flaherty Date: November 9, 2011 Citation: 2011 HRTO 2039 Indexed as: Bernard v. Lakehead University
1The applicants in both these matters have filed Applications under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). Both allege reprisals or threat of reprisals in the context of their employment.
2In an Interim Decision, 2011 HRTO 1408, the Tribunal dismissed a request for early dismissal pursuant to section 45.1 of the Code.
3In the Interim Decision, the Tribunal held that the fact that the applicants could have filed grievances was not a basis to dismiss the Applications. The Tribunal concluded that as no grievances were filed on behalf of the applicants in relation to the subject matter of the Applications, there was no "proceeding" within the meaning of section 45.1 of the Code.
4On August 23, 2011, the University respondents filed a Request for Reconsideration of the Tribunal's Interim Decision. They state that the Tribunal's Interim Decision is in conflict with established case law or Tribunal proceedure and the proposed reconsideration involves a matter of public interest. They also state that other factors exist which outweigh the public interest in the finality of Tribunal decisions.
5The University respondents' arguments can be summarized as follows:
a. A grievance and arbitration proceeding was triggered by the applicants' discussions with Lakehead University Faculty Association ("LUFA");
b. LUFA's decision not to file a grievance on the applicants' behalf constitutes a proceeding within the meaning of section 45.1 and appropriately dealt with the subject-matter of the Applications;
c. In its Interim Decision, the Tribunal adopted an overly technical approach to section 45.1 and erred in refusing to apply 45.1 in a manner that is at least as broad as the doctrine of abuse of process;
d. The Tribunal failed to review the Request to Dismiss pursuant to the Statutory Powers and Procedures Act ("SPPA"), which permits the Tribunal to control an abuse of process. These respondents acknowledge that they did not frame their Request to Dismiss in terms of abuse of process or in terms of section 23 of the SPPA, but they argue that because section 45.1 is at least as broad as the doctrine of abuse of process, it was incumbant on the Tribunal to also consider abuse of process in determining a Request under section 45.1. In support of this argument, the University respondents state that the Response Form published by the Tribunal "does not permit a Request to Dismiss based on a settlement agreement or where matters are otherwise dealt with, separate and apart from section 45.1 of the Code."
e. The Interim Decision leaves a "gap" that prevents an employer from seeking early dismissal where no grievance is filed but where the parties to a collective agreement came to a settlement or otherwise dealt with the substance of the agreement pursuant to section 45.1.
f. The Interim Decision does not reflect the reality of labour relations and the informal manner in which matters are resolved in that context, sometimes before a grievance is filed. These respondents state that if the Tribunal's Interim Decision is left to stand, "all future cases where matters are settled or otherwise dealt with before a formal grievance is filed and the employer relies on section 45.1 of the Code, those cases will continue notwithstanding that the matter has otherwise been dealt with".
ANALYSIS
6Pursuant to section 45.7 of the Code, any party to a proceeding before the Tribunal may request that the Tribunal 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.
7Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In this regard, it is helpful 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. [Emphasis added.]
8I have no difficulty rejecting the Request for Reconsideration. First, the Request relates to an Interim Decision of the Tribunal. The Interim Decision is not a final decision and not properly the subject of a Request for Reconsideration. See, for example, Woodbeck v. Thunder Bay (City), 2011 HRTO 1010.
9In any event, I find that the University respondents have not presented any basis for reconsidering the Interim Decision. I note that the respondents did not frame their Request to Dismiss in terms of the doctrine of abuse of process. The Request for Reconsideration is, in my view, an attempt to reframe and reargue issues already addressed in the Interim Decision. This is not a proper use of the reconsideration function.
10I reject the respondents' argument that a Request to dismiss on the basis of section 45.1 requires the Tribunal to also perform an analysis under the abuse of process doctrine even when the Request contains no such argument.
11The respondents arguments based on the wording of the Response form are entirely without merit. The respondents appear to be referring to the portion of the Response form that allows a respondent to identify preliminary issues that may be decided without a requirement to file a complete Response. The Response form in no way prevents a party from seeking the early dismissal of an application on other preliminary bases including on the basis of abuse of process once a Response has been filed. As the respondent points out, the Tribunal has, on a number of occasions addressed whether or not a matter ought to be dismissed based on abuse of process on a preliminary basis. See, for example, Zu v. Hamilton (City), 2010 HRTO 2461; Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151; and Holowka v. Ontario Nurses Association, 2010 HRTO 2171.
12While the Tribunal has held that its powers under section 45.1 are at least as broad as the doctrine of abuse of process, it does not follow that every request under section 45.1 engages abuse of process issues. When they filed the Request, it was open to the respondents to request the early dismissal of the Application on the basis of an alleged abuse of process. They did not do so. The repsondents were given an opportunity to file further submissions in support of their Request. They did not do so. The fact that the Tribunal did not consider arguments the respondents did not make is not a basis for reconsidering the Interim Decision.
13In any event, there is and was no information before me that could, in my view, support a finding of abuse of process. There is no basis to conclude that the parties reached a settlement, that the applicantshad any role to play in the union's decision-making, or that the applicants understood and agreed that their concerns had been appropriately dealt with through the respondents' denial of the grievance or the union's decision-making process. See Shannon v. Renfrew (County), 2010 HRTO 930; Paterno v. Salvation Army, Centre of Hope, 2010 HRTO 10; and Scharf v. Viscount Glass and Aluminum, 2011 HRTO 1761.
14For all of these reasons, the Request to Reconsider is denied.
15The Tribunal may issue a further Case Assessment Direction to provide direction to the parties regarding the next steps in these proceedings.
Dated at Toronto this 9th day of November, 2011.
"signed by"_________
Michelle Flaherty Vice-Chair