Race v. General Motors of Canada, 2011 HRTO 653

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Race

Applicant

-and-

General Motors of Canada Limited

Respondent

AND B E T W E E N:

Donna Race

Applicant

-and-

Canadian Auto Workers, Local 222

Bill MacIsaac and Steve Hambly

Respondents

RECONSIDERATON decision

Adjudicator: Janice Sandomirsky

Date: April 5, 2011

Citation: 2011 HRTO 653

Indexed as: Race v. General Motors of Canada

1The applicant filed two Applications with the Tribunal under s.53(5) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) on June 28, 2009. A decision was released on January 5, 2011, 2011 HRTO 24, dismissing the Applications on the basis that the applicant failed to make out a prima facie case.

2On January 31, 2011, the applicant filed a Request for Reconsideration of the decision under section 45.7 of the Code which provides that:

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 has issued Rules governing reconsideration requests. Rule 25 of the Transitional Rules provides, in part:

25.5. 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;

(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;

(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 and orders.

4The Tribunal also has a Practice Direction on Reconsideration which emphasizes that reconsideration is a discretionary remedy and the Tribunal will only reconsider a decision where it finds there are compelling and extraordinary circumstances for doing so and where those circumstances outweigh the public interest in finality of the decision. The Practice Direction further notes that:

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

5In this case, the applicant requests reconsideration on the basis that the decision is in conflict with established case law or Tribunal procedure and that the proposed reconsideration involves a matter of general or public importance, and that those interests outweigh the public interest in the finality of the decision.

The Decision

6The decision considered the applicant’s complaints that excessive noise from a radio played by co-workers was affecting her hearing. She alleged that she was subjected to harassment, insulting personal comments and threats from co-workers when she requested that the music be turned down. Her original complaint to the Commission outlined meetings that were held with representatives of the employer and the union in response to the noise complaints. Her position was that the employer and union failed to investigate and take appropriate actions in relation to her complaints. The applicant claimed that she lost time from work as a result of these events and continued to experience hearing, throat and voice problems.

7After hearing the applicant’s evidence, and receiving written submissions on the question of whether she had established a prima facie case, I concluded that the allegations, even if accepted to be true, would not establish a violation of the Code.

Reconsideration Request

8The applicant’s submissions in support of her Request for Reconsideration included a copy of the Workplace Safety and Insurance Board (“WSIB”) Health Professional Report (Form 8) from a physician she visited at a walk-in clinic on September 19, 2006, regarding her complaint of ringing and difficulty hearing in her right ear. The report notes that she related this problem to noise exposure at work.

9The applicant argued that this report refutes the statement at paragraph 32 of the decision that “the applicant presented no medical evidence supporting the claim that she suffered from a disability.” She referred to section 10(1)(e) of the Code, which defines disability to include: “an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997." The applicant submitted that the definition of disability does not require a successful WSIB claim, only that the claim be filed. She argued that it is unreasonable and unfair and not in keeping with public policy and considerable jurisprudence for the Tribunal to seriously narrow the definition of disability in this decision. She contents that the fact that a medical report was filed with the WSIB qualifies her as disabled.

10I agree that the statement in the decision that the applicant presented no medical evidence of complaints of hearing problems was not clearly articulated. Indeed, paragraph 11 of the decision noted that the applicant took the day off on September 19 to see her doctor about complaints of ringing in her ears and a WSIB claim was filed. And paragraph 13 noted that the applicant saw a medical specialist about her hearing loss and voice concerns. There was no report submitted from the specialist, however, confirming whether the applicant had suffered any hearing loss.

11Reconsideration is a discretionary remedy exercised by the Tribunal in the limited circumstances. Even accepting that the decision may have erred in not referencing the definition of disability under the Code, I am not satisfied that it would alter the conclusion that the applicant failed to establish a prima facie case of discrimination. The applicant’s evidence did not support a finding that the respondents failed to accommodate her noise complaints. Indeed, the evidence established that the employer and union representatives met with the applicant on a number of different occasions to investigate and resolve her complaints about excessive noise and accommodations were made.

12The remainder of the applicant’s submission in support of the Request for Reconsideration consists of a restatement of her complaint that she was subjected to regular and ongoing harassment and discrimination starting on June 14, 2006, and continuing to December 31, 2006. As noted in the Tribunal’s Practice Direction, reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its 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. As the applicant had the opportunity to present these arguments at the hearing, this recitation of the allegations does not meet the threshold to allow a reconsideration.

13After reviewing the applicant’s submissions, I am not satisfied that she has met the criteria for granting a Request for Reconsideration.

14For these reasons the Request for Reconsideration is dismissed.