Roystan Mangal v. Molson Toronto Brewery, 2011 HRTO 949

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roystan Mangal

Applicant

-and-

Molson Toronto Brewery

Respondent

RECONSIDERATION DECISION

Adjudicator: Judith Keene

Date: May 17, 2011

Citation: 2011 HRTO 949

Indexed as: Mangal v. Molson Toronto Brewery

INTRODUCTION

1The Tribunal issued a Decision, 2011 HRTO 575, with respect to this Application on March 24, 2011. On April 21, 2011, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. The Request was apparently delivered to the respondent on the same date.

2Section 45.7(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), provides that “[a]ny party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules”. The Rules elaborate on the conditions and requirements of such a request. Rule 26.1 states that “[a]ny party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days from the date of the decision.”

3Pursuant 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.

4It is also useful 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.

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

5I find no basis to grant reconsideration of the Decision. My reasons follow.

6Of the Rule 26.5 criteria listed on the Request form, the applicant checked off, “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”.

7The applicant cites only one issue that might have relevance to established jurisprudence or Tribunal procedure; he states that he asked me to exclude a witness, Kenny Saunders, before another witness, Joe Dixon, gave his testimony, and that I did not do so. He also stated that I failed to exclude Mr. Dixon when Mr. Saunders gave his testimony. The former complaint could potentially be more important, as Mr. Dixon testified before Mr. Saunders.

8I do not recall the applicant making a request to exclude witnesses. At the start of the hearing, both witnesses mentioned by the applicant were respondent parties to the Application; however, the applicant withdrew his Application as against these respondents just before the start of the respondent’s evidence, after the corporate respondent asserted that these individuals were acting in the course of their employment, and accepted responsibility for the actions of these individuals.

9In the circumstances of this case, I would have granted any request to exclude witnesses. I certainly did not refuse to do so; that would have been sufficiently unusual that I would have included such a ruling in the Decision.

10The applicant specifically states that I agreed with his request to exclude. His Request for Reconsideration simply states that he asked, I agreed, but that I did not exclude the witnesses. It is possible that the applicant, who was not represented at the hearing, made such a request in the course of withdrawing his Application as against the personal respondents, and I did not hear it or follow up. If the applicant did make this request, he did not repeat it or press the point before or during the testimony of the witnesses, or at any other point in the hearing.

11There is no rule that witnesses must be excluded in all cases, although the Tribunal is mindful of its discretionary power to exclude witnesses from the hearing room until such time as it is necessary for them to give their evidence, and, upon the request of a party, will normally grant such an order. See Capocci v. York Catholic District School Board, 2009 HRTO 1956.

12In view of the possibility that I missed a request by the applicant to exclude Mr Dixon or Mr Saunders, I have carefully reviewed the evidence of these two witnesses in respect of the few contested assertions of fact that were relevant to an Application under the Code, as well as in respect of the specific issues raised by the applicant in his Request for Reconsideration about the evidence of these witnesses.

13The applicant, a temporary employee who self-identified as a “visible minority”, alleged that he was denied opportunities to be trained for and take on work in areas of the plant other than the one in which he worked, while white temporary employees were offered training. He stated that he was harassed by a white temporary employee (HN), and that his supervisors did not investigate or make an attempt to verify his claim of harassment. He stated that the respondent had made no attempt to clean a smell of urine from a dark, poorly ventilated area close to the area in which he worked. Finally, the applicant alleged that he was not re-hired after a layoff, while other white temporary employees were rehired.

14Very few of the assertions of fact relevant to a possible breach of the Code made by respondent’s witnesses were contested by the applicant. I emphasize “relevant to a possible breach of the Code” because, in his Application, in the hearing and in his Application for Reconsideration, the applicant was largely concerned with disputes about his employment, which, even if established in evidence, would not amount to a breach of the Code.

15Initially, the applicant made some broad allegations, which, had they been proven, would have established a prima facie case of discrimination. Many of these allegations were modified and qualified by the applicant in testimony. The applicant therefore was left with relatively few contested statements of fact relevant to his Code case. The applicant’s major dispute in respect of these matters was not whether an action had been taken, or whether there was a non-discriminatory reason for an action, but whether the reasons for the action included consideration of his race, colour, ethnic origin and age. The applicant did not ultimately succeed because there was no direct evidence of a breach of the Code, and all circumstantial evidence in support of his claim that the respondent had differentiated on the grounds cited in the Application was successfully rebutted by the respondent.

16Mr. Dixon and Mr. Saunders both acted as the applicant’s immediate supervisor at separate periods during the relevant time. Both testified in respect of two performance appraisals of the applicant’s work, as to steps taken to investigate the applicant’s complaints that HN was swearing at him and sabotaging his work, and in regard to some of the facts of the layoff.

17The testimony of Mr. Dixon and Mr. Saunders appeared to me to be credible and did not appear to be tailored in any way. It is not uncommon for a witness to deny discrimination, but, as noted in the Decision, their testimony was buttressed by documentary evidence produced by the respondent.

18The applicant had alleged that no appraisal was done of his performance; Mr. Dixon and Mr. Saunders testified that two were done but that neither was shown to nor reviewed with the applicant (this being the respondent’s practice in respect of every temporary employee). The appraisal forms were produced in evidence. Each witness spoke to the appraisal he had done—each had done one. The appraisals differed. As I noted in the Decision, I was not surprised that the applicant had thought that no written appraisals had been done, but there was evidence, that had not been available to the applicant, that they had been.

19In respect of the harassment investigation issue, the applicant originally asserted that no investigation was done. However, in cross-examination, he retrenched considerably, stating that he did not recall some elements of the investigation and admitted that meetings were conducted and that HN was moved. In the end, the contested issues appeared to be the applicant’s view that the supervisors should not have concluded that he, as well as HN, was at fault, and his view that his layoff was a form of discipline to which HN was not subjected.

20In respect of the layoff and failure to rehire, the only contested assertion of fact was whether the applicant was the first laid off. In respect of this issue, the evidence of the respondent’s witnesses was buttressed by documentary evidence produced by the respondent; a record of the names of the employees who were laid off on the relevant date. The evidence indicates that both the applicant and HN were laid off on that date. At my request, the respondent produced a record identifying the eight temporary employees who were rehired in February of 2009. HN's name did not appear. I have no reason to doubt Mr. Saunders’ testimony that HN’s performance appraisal, like the applicant’s, indicated that HN had trouble getting along with a fellow employee, namely the applicant, and that, for this reason, he was not recommended for rehire.

21I conclude that there was no prejudice to the applicant because there was no order excluding witnesses.

22I have also carefully considered those parts of the Request for Reconsideration that set out the applicant’s stated concerns with the evidence of Mr. Dixon or Mr. Saunders. The Request characterizes assertions of failures to recall by Mr. Saunders and Mr. Dixon as “lies under oath”. One example cited by the applicant is whether Mr. Saunders had an uncle working at the plant, which is irrelevant to the Application. Another example is whether there was destruction of bottles during the applicant’s altercations with HN, a point which is not relevant to whether the applicant was treated differently from HN, and in any event was not contested by the respondent. The applicant implies that there was a witness to this destruction, but he did not call this witness to testify at the hearing, and, as noted, the alleged destruction of bottles was not a contested issue. In any event, argument about evidence that was accepted is not taken into account in Reconsideration unless one or more of the circumstances set out in Rule 26.5 apply.

23The applicant makes a number of assertions in respect of matters which, even if accepted as true, are not relevant to a claim of discrimination under the Code. In his Request, the applicant protests my failure to “request a full investigation” of the urine incident, which the applicant did not even allege to have a connection to his race, colour, ethnic origin or age. He also focuses on testimony regarding employment practices of the respondent which may be less than optimal or generally unfair, but likewise do not create disadvantage on the basis of personal characteristics protected by the Code. Further, none of these issues fall within the reconsideration criteria. The remainder of the Request for Reconsideration focuses largely on arguing with conclusions reached on the evidence, which, as noted in the Tribunal’s Practice Direction on Reconsideration, is not the purpose of Reconsideration.

24The Request does not establish that any of the factors noted in Rule 26.5 apply in this case. Reconsideration is denied.