Brown v. Loblaw Companies Limited, 2011 HRTO 2175

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sheldon Brown Applicant

-and-

Loblaw Companies Limited, Ben Mayhew, Ray Thompson and Tristan Vulencia Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart Date: December 5, 2011 Citation: 2011 HRTO 2175 Indexed as: Brown v. Loblaw Companies Limited

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2010 HRTO 1128 dated June 10, 2011. The Decision dismissed this Application pursuant to s. 45.1 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) on the basis that the substance of the Application already had been appropriately dealt with by an arbitration decision dated May 3, 2010.

2On July 8, 2011, the applicant wrote to the Tribunal to state that an “appeal” had been made regarding my Decision. On July 11, 2011, the Tribunal wrote to the applicant to advise that my Decision was a final decision and to inform him of his right to request reconsideration. On July 21, 2011, the applicant wrote to request an extension of time to make “submissions”. On July 26, 2011, the Tribunal wrote to the applicant to advise that no further submissions had been requested from the parties, and to once again advise him of his right to request reconsideration. The Tribunal further advised the applicant that if his request was for an extension of time to file his reconsideration request, the Tribunal’s practice was not to grant such extensions in advance, but that the applicant should file his Request for Reconsideration as soon as possible and include in that material his request for an extension and the reasons for this request.

3On August 16, 2011, the applicant filed a Request for Reconsideration of the Tribunal’s Decision, together with voluminous documentation.

4Section 45.7 of the Code provides as follows:

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.

5Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules of Procedure. The Tribunal has issued rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008).

6The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

7As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

8In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

9The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 25.5 of the Rules 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.

10As a result, I need to determine whether the material filed by the applicant in support of his Request for Reconsideration satisfies any of the criteria set out in Rule 25.5. On the Request for Reconsideration form, the applicant did not identify any of the criteria identified in Rule 25.5 as a basis for his reconsideration Request. Rather, the applicant states that he is requesting an acknowledgement that he has not done anything in bad faith in relation to this matter and for an amendment of what the applicant describes as “clerical errors” in the Decision.

11The Request for Reconsideration was filed with this Tribunal more than two months after the date of my Decision, and beyond the 30 day limit for filing a reconsideration request under the Rules. The applicant states that he suffers from various medical conditions, which resulted in him requiring additional time to prepare his Request. In these circumstances, I am prepared to grant the extension of time for filing the reconsideration Request and will consider his Request on its merits.

12As previously indicated, the applicant requests an acknowledgement that he has not done anything in bad faith in relation to this matter. My finding that the Application already had been appropriately dealt with by the arbitration decision was not premised in any way on a view that the applicant had acted in bad faith. Nor do I believe, based on the evidence before me at the preliminary hearing, that the applicant was acting in bad faith in attempting to pursue his Application before this Tribunal. Rather, for the reasons set out in my Decision, my finding was only that the substance of his Application has already been appropriately dealt with by the arbitration proceeding and decision.

13I also made a finding, specifically with regard to the applicant’s allegations from 2004, that the applicant had not provided a reasonable explanation for his delay in pursuing these allegations, such that he had not satisfied the requirement that such delay be incurred in “good faith”. This finding was not in any way intended to suggest that the applicant was proceeding in “bad faith”. Rather, this Tribunal has interpreted the requirement for an applicant to establish that any delay was incurred in “good faith” to mean that the applicant must provide evidence establishing a reasonable explanation for the delay. My finding merely means that the applicant’s evidence establishing a reasonable explanation for the delay was lacking, and was not intended to be and was not in fact any finding that the applicant had proceeded in bad faith.

14In his reconsideration Request, the applicant also requests the amendment of what he describes as “clerical errors” in the Decision. The first issue pertains to para. 15 of the Decision, in which I state that the applicant through his representative stipulated that the applicant had testified at the arbitration hearing about the issues from 2004, that he was asked by his supervisor Mr. Vulencia to perform up to the 100% standard, and that he was not given modified duties. In his reconsideration Request, the applicant states that the respondent company only requires its employees to achieve a quota of 92.5% of the standard, and thus that Mr. Vulencia had asked him to achieve 100% of the standard, which is over the limit of what the company expects.

15The point of my statement in para. 15 of the Decision is merely to record the applicant’s agreement that he had testified in the arbitration proceeding about the events at issue from 2004, which also were raised as part of the Application before this Tribunal. Whether Mr. Vulencia in fact asked the applicant to perform to a higher standard than what was normally expected was not in issue at the preliminary hearing. Rather, the issue was whether the issues raised in the Application already had been raised and addressed in the arbitration proceeding. For the reasons set out in my Decision, I found that they had been.

16The second issue pertains to para. 30 of my Decision, in which I state that the applicant acknowledged in his evidence before me that the union assisted him in getting a resolution of the issue regarding the allegations against Mr. Thompson from 2003. In his reconsideration Request, the applicant states that in fact, the union assisted him with regard to an incident from 2003 in which he states that he was terminated because of his request for proper equipment to clean a washroom while he was working modified duties. The applicant states that there was no resolution of his claim against Mr. Thompson from 2003.

17This was not the evidence given by the applicant before me at the preliminary hearing. Be that as it may, this does not address my finding in para. 31 of the Decision that there was no evidence before me to indicate that the applicant sought to pursue the issues from 2003 further until he filed his complaint in March 2008, or perhaps when he states that he contacted the Commission and attempted to file a complaint sometime in 2007. As stated in my Decision, in my view, this was insufficient to provide a reasonable explanation for the applicant’s delay in bringing forward the issues from 2003, and I accordingly found that the delay in raising these issues was not incurred in good faith within the meaning of s. 34(2) of the Code.

18The third and final issue pertains to para. 32 of the Decision, where I state that:

With regard to the applicant’s allegations regarding the period from January to June 2004, the applicant’s evidence before me was that he wrote correspondence to his union about these issues, but he received no response. He states that he contacted the Human Rights Commission and the Ontario Labour Relations Board regarding these issues, and they said that since he was unionized, he could not make a claim unless the union officially stated that it could not help him. From the applicant’s evidence, it appears that these issues then lapsed into abeyance, as he stated before me that, it was not until years after that he sent further correspondence to union, and then he figured “enough is enough” and filed his human rights complaint.

19The applicant states that there is an error to this statement, as he states that he also sent correspondence to the union years after the initial incidents. I am not sure that I understand the difference between what is stated in my Decision, which was based upon the evidence given before me by the applicant at the preliminary hearing, and what the applicant is now saying.

20With his reconsideration Request, the applicant filed voluminous documentation, which I have reviewed and considered, much of which relates to his communications over time with his union. This material indicates that the applicant raised issues regarding events in late June 2004 in correspondence sent to the union on September 17, 2004. The applicant also included with his reconsideration Request an “Information Sheet” in which he states that following the 2004 incidents, he contacted the Human Rights Commission and the Ontario Federation of Labour. He repeats the evidence that he gave before me that he was told by the Commission that the union had to officially state that it would not help him before he could file a complaint.

21The material submitted by the applicant indicates that it was then not until May 22, 2007 that he initially attempted to file a human rights complaint that references the 2004 incidents. A subsequent letter from the Commission to the applicant dated August 2, 2007 indicates that the applicant agreed to withdraw this complaint on the basis that the union was dealing with the matters raised in his complaint through the grievance process. After further correspondence with the union regarding the applicant’s dissatisfaction with how his matters were being dealt with in the grievance process, the applicant ultimately filed a further complaint with the Commission on March 12, 2008, which forms the basis of the Application before this Tribunal.

22In my view, the material submitted with the reconsideration Request supports the evidence given before me at the preliminary hearing that, after initially raising the issues from 2004 with the union and attempting to contact the Commission, these issues thereafter lapsed into abeyance and were not raised further until May 2007.

23Having carefully reviewed and considered all of the material submitted by the applicant in support of his reconsideration Request, I find that this Request does not satisfy any of the criteria for reconsideration as set out in Rule 25.5.

24For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.

Dated at Toronto, this 5th day of December, 2011.

”signed by”_____________

Mark Hart Vice-chair