HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jurgen (Jerry) Degen

Applicant

-and-

City of Toronto

Respondents

RECONSIDERATION DECISION

Adjudicator: David A. Wright

Date: May 18, 2011

Citation: 2011 HRTO 967

Indexed as: Degen v. Toronto (City)

WRITTEN SUBMISSIONS

Jurgen (Jerry) Degen, Applicant ) Self-represented

[1] The applicant seeks reconsideration of the Tribunal’s decision, 2011 HRTO 319, dismissing this Application on the basis that it was outside the Tribunal’s jurisdiction because it was untimely. The Request for Reconsideration is dismissed.

[2] Rule 26.5 sets out the limited circumstances in which reconsideration may be granted:

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.

[3] The applicant relies upon Rule 26.5 (a) and Rule 26.5 (c). As for Rule 26.5 (a), the applicant has cited no new facts or evidence that “could not reasonably have been obtained earlier”. Rather, he has added to the arguments he presented earlier. Reconsideration is not an opportunity to present new evidence or make new arguments. There is no basis for reconsideration under Rule 26.5 (a).

[4] The applicant also makes numerous arguments about why, in his view, the Decision is incorrect. However, reconsideration under Rule 26.5 (c) is not an appeal or an evaluation of alleged errors in the decision. As the Tribunal stated in Sigrist and Carson v. Toronto District School Board, 2008 HRTO 34 at paras. 54-57:

I have considered what is meant by the requirement of a “conflict”. Given the public interest in finality of decision-making and economy of legal proceedings, as discussed above, a decision should not be reconsidered on the basis of an assertion of an apparent conflict with the result reached in another decision. There must be a conflict with “established” jurisprudence or procedure in the sense that there is a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules.

Parenthetically, even in the event of a departure from settled legal rules, there may be valid reasons why the Tribunal might nonetheless decide not to reconsider a decision. For instance, it is not clear to me that reconsideration must be granted even in the event of conflict where it is evident that the parties have had an opportunity to address the issues and the adjudicator has considered and given reasons for departing from the analysis or conclusion reached in prior cases. Where granting reconsideration in such a circumstance serves no purpose other than an opportunity to re-argue the issue, the Tribunal may well exercise its discretion against reconsidering its decision.

As is evident from the Rules and made explicit in Practice Direction #4, reconsideration is not an appeal. It is not an opportunity to re-argue a case. Once the parties to a case 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.

Secondly, assertions of a “conflict” must be analyzed with care and have due regard to the realities and nature of decision-making. Even where there is well-established jurisprudence or procedures, each decision on apparently similar issues is made within its own factual, legislative and policy context. A finding that there is a “conflict” can only be made taking into consideration the full context of the decisions. The excerpt from the Eldridge decision relied on by the Commission, therefore, must be understood as part of the Supreme Court’s discussion about whether a hospital’s actions are subject to the Charter of Rights. The Court located the source of a potential Charter violation in the exercise of discretion by subordinate entities acting within a legislative scheme, rather than in the legislation itself. The issue was not whether the provincial government was responsible for actions taken by a subordinate authority, but whether the subordinate authority itself had to conform to the Charter. This is quite a different issue from whether, under the Code, the provincial government should be responsible for actions taken by a school board in the delivery of education services.

[5] Having considered the applicant’s arguments, I find that there is no basis for reconsideration pursuant to Rule 26.5 (c), as the applicant has shown neither a conflict with established jurisprudence nor a matter of general and public importance. He focuses on what he says are errors in the decision or interpretations with which he disagrees, which do not establish grounds for reconsideration. While this is sufficient to dispose of the applicant’s Request for Reconsideration, and while I have considered all of the applicant’s arguments, I will address some of applicant’s particular arguments in the paragraphs that follow.

[6] The applicant points out that the Tribunal made an error at para. 1 of the Decision in setting out the date the Application was filed. The correct date is September 4, 2008 and not September 5, 2008. The difference of one day has no effect on the reasoning given the dates involved.

[7] The applicant points out that there is a typographical error in para. 3 of the Tribunal’s decision. That sentence should read, “Section 34 of the Code provides that an application must be filed no more than one year after the incident or last incident in a series to which it relates”. The typographical error had no effect on the Tribunal’s reasoning.

[8] The applicant argues that the Tribunal made an error in stating that the applicant advised the respondent of his intention to retire on July 18, 2007. He states that this letter was in fact sent on August 12, 2007. The respondent, in its Response, says the applicant provided such a letter on July 18, 2007. There is no need to resolve this dispute between the parties because this difference in the dates does not affect the Tribunal’s conclusions.

[9] The applicant argues that an oral hearing is required before the Application is finally disposed of, pursuant to s. 43(2) of the Code. Section 43(2) and Rule 3.5 require that an application that is within the Tribunal’s jurisdiction not be finally disposed of without affording the parties an opportunity to make oral submissions. As the Tribunal found that the Application was not within its jurisdiction because it was out of time, the Tribunal, consistent with its normal practice and the Code, dealt with the matter in writing.

[10] In his Request for Reconsideration, the applicant states that the last incident of discrimination occurred during a meeting with the Toronto Professional Fire Fighters’ Association’s (“Association”) President and legal counsel on September 6, 2007. The applicant states that the Association and its president “blocked his ability to be accommodated as a disabled fire fighter in a suitable job”. He states that the Association offered the reason that “an able bodied fire fighter’s rights under the Collective Agreement would trump those of a disabled fire fighter”. He suggests that the employer must have known that the accommodation was being offered by the Union or its counsel.

[11] First, this position is directly contrary to the position the applicant took in his submissions dated January 31, 2011. The applicant stated as follows at para. 3 of his submissions:

The Applicant respectfully asks the Tribunal to apply the same harm-based analysis to his Application, and accept his forced retirement date of September 7, 2007 as the last incident alleged, regardless of what he may have stated regarding a meeting he had with the Association one day prior. [emphasis added]

The applicant’s submissions focused entirely on the argument that his retirement date was the last incident. The Tribunal analyzed the events accordingly.

[12] Even if the applicant had relied upon his meeting with the Association on September 6, 2007, the Tribunal would not have found that this was an incident of alleged discrimination within the meaning of the Code. The applicant argues that the Association must have been conveying an inappropriate offer of accommodation from the employer, and so this must be considered an incident of alleged discrimination by the employer and the Association.

[13] The full context of the meeting must be considered. In his Application, the applicant explains what happened on September 6, 2007 as follows:

Sept. 6/07 I am ordered by the association (TPFFA 3888), via registered letter to appear a Sacks & Golblatt, the association's solicitor's office. The subject of discussion will be whether my Grievances in regards to these matters have validity and if they will be carried forward. I'm told that a lawyer (Mandy) and the grievance committee of approximately 8 people will be in attendance. We discuss matters pertaining to my grievance: harassment, abuse of authority, accommodation, the collective agreement, my retirement date, my injury and so on. The proceedings were not going well. At one point a heated discussion ensued where Scott Marks the TPFFA president tried to convince me that an STI (seconded technical instructor) holding the rank of fire fighter, and being paid as a Capt., while conducting training duties (not his normal job); would get precedence over a trained instructor, who holds the rank of Capt, and wants accommodation as an STl, during his disability! .(me). He said, "there isn't an arbitrator in the country that wouldn't rule in favour of the STI firefighter" (vs. the disabled Capt.). This really shows how ignorant of the OHRC the entire dept. and the association really are. I informed him that the dept under OHRC rules has to create a job irrespective of current jobs and that the two issues are very separate ones. I showed them in the code that Accommodation is very separate, distinct and specific. The TPFFA's greatest concern was; my having entered the grievance process with accommodation at its root, and my assertion that I am being forced into retirement due to my disability. The discussion, one day before my forced retirement, was to make me an offer under the collective agreement. (presumably with the Chiefs approval?) The offer went like this: I would take demotion to first class fire fighter and give up my Captaincy. Then I would continue to be paid as Capt. for two years, after which my pay would be reduced 15 %, or down to first class fire fighter's pay. This position would be in the communication's office at 4330 Dufferin Str. on the second floor. I was stunned, because I am disabled and unable to perform an operational fire Capt. 's duties, my accommodation is, to take a demotion anti then lose pat in two rears? I showed them under the Human Rights code, there are several references that would definitely not concur with this, or the collective agreement…..This is definitely unacceptable and that I wanted my grievances to be heard. ~~ I want these issues to see the inside of a courtroom!" is what I said.

[14] It is evident from the Application that this was a meeting to discuss whether the Union would proceed with a grievance or possible settlement of that grievance. This is not an incident of alleged discrimination under the Code. Of course, as the applicant argues, unions have obligations under the accommodation process and may be liable for a violation of the Code if they are a contributing cause of discrimination or impede accommodations that an employer is offering: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970; Ontario Human Rights Commission Policy and Guidelines on Discrimination and the Duty to Accommodate, s. 4.4. It is also correct, as the applicant argues, that the Code has primacy over collective agreements.

[15] However, a union is not liable for discrimination merely because it fails to bring forward a grievance relating to a failure to accommodate, even if that is valid, or makes a proposal for settlement of a grievance, even if that settlement may not comply with the Code: Boyd v. Toronto (City), 2010 HRTO 607 at para. 2; Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996 at para. 33. The applicant’s description of events in the Application is about a decision by the union regarding pursuing or settling a grievance. While the applicant argues this is “discrimination”, a mere decision by a union not to pursue a grievance or to propose a settlement of a grievance is not an incident of alleged discrimination as the Code is interpreted.

[16] The applicant made no submissions on whether the delay was incurred in good faith prior to the Decision. He now argues that his delay was affected by a mental health disability. The applicant has presented no medical evidence to show that his mental health affected his ability to file an Application: see para. 12 of the Decision. There is insufficient evidence to establish good faith. The applicant also states that he “discovered” in August 2008 that the Code had changed, permitting him to file an Application to the Tribunal. This does not establish good faith, for the reasons set out in Kelterborn v. Toronto (City), 2011 HRTO 318.

[17] The applicant also argues as follows:

Looking at item (vi): Vice Chair Wright in the first hearing where the Applicant was the Representative for five other firefighers, indicated that he did not have to comply with the Policies and Guidelines pertaining to the Code.

His assertions are not reflected by Section 45.5 of the Code, as it states that: “the HRTO may consider Policies approved by the OHRC in a Human Rights proceeding before the Tribunal. Where a party or an intervener in a proceeding requests it, the Tribunal shall consider an OHRC policy. Where an OHRC policy is relevant to the subject matter of a Human Rights Application, parties and interveners are encouraged to bring the policy to the Tribunals’ attention for consideration”.

[18] Section 45.5 of the Code in fact reads as follows:

(1) In a proceeding under this Part, the Tribunal may consider policies approved by the Commission under section 30.

(2) Despite subsection (1), the Tribunal shall consider a policy approved by the Commission under section 30 in a proceeding under this Part if a party to the proceeding or an intervenor requests that it do so.

[19] This section of the Code does not say that the Tribunal is bound by Ontario Human Rights Commission policies. It provides that the Tribunal must consider them. There was nothing incorrect in advising the applicant of this. In any event, the policies cited by the applicant do not state that a union violates the Code by refusing to pursue a grievance relating to accommodation or that good faith for delay is established by the mere assertion of a mental health disability without supporting medical evidence, which are the issues dealt with here. The jurisprudence clearly establishes the opposite.

[20] In conclusion, the applicant has not established that the Decision should be reconsidered. The Request for Reconsideration is dismissed.

Dated at Toronto, this 18th day of May, 2011.

“Signed by”

David A. Wright

Associate Chair