Cann v. Rona Incorporated, 2012 HRTO 1065

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jonathan Cann

Applicant

-and-

Rona Incorporated, Rona Ontario Incorporated, Noble Trade Incorporated

Respondents

RECONSIDERATION DECISION

Adjudicator: Eric Whist Decision Date: May 29, 2012 Citation: 2012 HRTO 1065 Indexed as: Cann v. Rona Incorporated

WRITTEN SUBMISSIONS

Jonathan Cann, Applicant

Self-Represented

1On April 16, 2012, I issued a Decision, 2012 HRTO 754, dismissing Applications 2009-02981-I and 2010-06826-I. On May 10, 2012 the applicant filed a Request for Reconsideration, with brief written submissions in support of his request.

2The applicant submits as grounds for his Request that my Decision does not duly consider the evidence, submissions and case law that he submitted before me and that I was biased and not competent to hear the matter. Having reviewed my Decision and the issues raised by the applicant I am not satisfied that the applicant has met the requirements for Reconsideration as set out in the Tribunal’s Rules. Consequently, the applicant’s Request for Reconsideration is denied. My reasons for this determination follow.

3Under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (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. The relevant Tribunal Rule is Rule 26.5 which reads, in part, as follows:

26.5 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; 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 and orders.

4The Tribunal has also issued a Practice Direction to provide guidance on how the Tribunal exercises its reconsideration powers (Practice Direction on Reconsideration). The Practice Direction states, in part, that:

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.

Applicant’s Submissions

5In his Request for Reconsideration the applicant submits that I did not properly assess the evidence that was adduced and the submissions that were made during the course of the hearing of his Applications. The applicant submits that I did not refer to significant documents and case law he provided. The applicant submits that it is suspicious that I issued my Decision mere weeks after the hearing and suggests that I would not have had time to properly consider the substantial documentary and oral evidence as well as the case law presented by the parties.

6The applicant submits that I made an error by “unreasonably determining that a prima facie case defence of discrimination, failure to accommodate and reprisals had been established by respondents and/or by impermissibly reversing the onus.” In support of this proposition the applicant provides a copy of the Ontario Divisional Court’s decision in Peel Law Association v. Pieters, 2012 ONSC 1048, a decision that overturned a Tribunal decision on the basis that the Tribunal had erred by unreasonably determining that a prima facie case of discrimination had been established and placing the onus on the respondent to refute it.

7The applicant submits that I did not properly consider the lengthy opening and closing submissions of his representative and that this was racially motivated because his representative is African-Canadian. He submits that further evidence of this bias is that I freely permitted the respondents’ counsel to caucus with her clients for extended periods throughout the proceedings while frequently taking issue with the applicant’s representative’s requests to caucus with his client, the applicant.

8The applicant further submits that I am not qualified to hear or decide complex human rights cases at the Tribunal as I am not a lawyer.

9The applicant submits that his Request for Reconsideration should be allowed pursuant to Rule 26.5 (c) and (d).

Decision

10The applicant’s submission that I did not appropriately weigh the evidence and consider the submissions and presented case law is an argument that my Decision was flawed and wrongly decided on the information before me. This is not grounds for reconsideration under Rule 26.5. As is evident from the Rules and made explicit in the Practice Direction, reconsideration is not an appeal and 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 (see Sigrist v. Carson 2008 HRTO 34 at para. 56). The fact that I issued my decision just over five weeks after the hearing was completed does not indicate that I did not give proper consideration to the information that was before me. Five weeks is not an unduly short period of time in which to consider a matter and write a decision.

11I do not accept the applicant’s submission that my Decision is inconsistent with the Ontario Divisional Court’s decision in Peel Law Association v. Pieters and as such is contrary to established Tribunal jurisprudence. It appears the applicant’s contention is that I have not applied the appropriate legal analyses or tests to the facts of his case and in so doing did not follow the Divisional Court’s decision in Peel Law Association v. Pieters.

12As I stated in my Decision the applicant had the onus of proving, on a balance of probabilities, that a violation of the Code had occurred and that clear, convincing and cogent evidence was required in order to satisfy the balance of probabilities test. I do not find that in applying this test and other legal analysis including tests related to the principle of accommodation (an issue not addressed in Peel Law Association v. Pieters) that my Decision conflicts with the direction provided in Peel Law Association v. Pieters.

13The applicant’s submissions that I failed to consider his representative’s submissions because his representative is Afro-Canadian is an allegation of a reasonable apprehension of bias. The legal principles to be applied to reasonable apprehension of bias were set out by De Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

14The threshold test for reasonable apprehension of bias is a high standard. The fact that I may not have referred to the submissions of the applicant’s representative to the degree the applicant feels I should have in my Decision does not give rise to a reasonable apprehension of bias. There is no requirement that the Tribunal summarize or refer to every submission made by a party at a hearing. The Decision only briefly referred to specific submissions or arguments where necessary. A reasonable person viewing these circumstances would not find that the reasons of the Decision gave rise to a reasonable apprehension of bias simply because not all submissions made by either party were referred to.

15The applicant further submits that a reasonable apprehension of bias is raised by the fact that I allegedly allowed the respondent’s counsel to confer with her clients at length while taking issue with his representative’s requests to confer with the applicant. The applicant provided no further details or particulars in relation to this allegation.

16My standard practice during a hearing is to allow counsels and representatives to confer with their clients. Occasionally, there will be a need for parties to agree to time limits for such consultations. Given the lack of details by the applicant on this submission I do not believe that a reasonable person informed of these circumstances would believe that there was a reasonable apprehension of bias.

17I would further note that the applicant does not state in his Request that he made any objections at the hearing in relation to this procedural issue about conferring with counsel. In addition he did not raise the reasonable apprehension of bias issue either in the hearing. An allegation of a reasonable apprehension of bias should be raised at the outset when it arises and not in a request for reconsideration (see Guilmoutdinov v. Ontario College of Teachers, 2009 HRTO 2130 at para 15 and 16). I do not find that this issue, as described, would cause a reasonable well-informed person to believe that there was a reasonable apprehension of bias. Given this finding, there is no basis for the applicant’s Request for a reconsideration of my Decision.

18The applicant submits that I am not sufficiently qualified to hear or decide human rights cases at the Tribunal because I am not a lawyer. There is no requirement to be a lawyer in order to be a member of the Tribunal. Under s. 32 of the Code, members must be selected through a competitive process that takes into account “[e]xperience, knowledge or training with respect to human rights law and issues”, “[a]ptitude for impartial adjudication” and “[a]ptitude for applying the alternative adjudicative practices and procedures that may be set out in the Tribunal rules”. A general comment about an adjudicator’s qualifications does not meet the test for Reconsideration of a Decision under Rule 26.5.

19For all these reasons, the applicant’s request is denied.