HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stephen Biega
Applicant
-and-
Management Research & Solutions Inc., MRSI Benchmarking Inc., David Cook, Dan Regan and Lorraine Baudisch
Respondents
reconsideration decision
Adjudicator: David A. Wright
Indexed as: Biega v. Management Research & Solutions
APPEARANCES
Stephen Biega, Applicant ) Self-Represented
Management Research & Solutions Inc., ) David Cook Dan Regan and Lorraine Baudisch, ) Israel Balter, Counsel Respondents )
MRSI Benchmarking Inc., Respondent ) Tara Landes, ) Representative
INTRODUCTION
1The applicant has requested reconsideration of the Tribunal’s Decision dismissing this Application, 2011 HRTO 13. The Application, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, was dismissed because the Tribunal found that the Application was filed more than one year after the last alleged incident of discrimination and the applicant had not established that the delay was incurred in good faith. In a Request dated February 4, 2011, the applicant sought reconsideration of the Decision on the basis that: (i) the decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and (ii) other factors exist that outweigh the public interest in the finality of Tribunal decisions.
2Given the nature of the issues raised in the Request, including allegations of violations of procedural fairness, in a Case Assessment Direction dated February 10, 2011, the Tribunal set deadlines for the exchange of materials and written submissions. By letter dated June 28, 2011 the Tribunal scheduled an oral hearing by teleconference to hear submissions on the Request, which was held on September 9, 2011. The parties made various written submissions following the teleconference, which were completed on December 15, 2011.
3The applicant argues that the adjudicator denied him procedural fairness by refusing to accept documents he wanted to introduce, and made substantive errors in his Decision. For the reasons that follow, the Request for Reconsideration is denied.
BACKGROUND
4Sections 34 (1) and (2) of the Code read as follows:
- (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
5Rule 26.5 reads as follows:
26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:
there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
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
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
other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
6The Application, alleging discrimination in employment because of disability and reprisal, was filed on December 15, 2009. The applicant was laid off from his employment on January 18, 2008. His Application alleges: (i) a failure to accommodate his disability during his employment; (ii) that his disability was a factor in his selection for layoff, and (iii) that his disability was a factor in a decision not to recall him from layoff. The Application alleges, but the respondents deny, that other employees were recalled from layoff during the period following the layoff.
7In a Statement of Defence filed in December of 2008 in the applicant’s civil action for constructive dismissal, the respondent MRSI pleaded as follows:
The Plaintiff has not been specifically recalled only because, from the Defendant’s understanding, the Plaintiff is not yet in a position to return to work. When he is in that position, he will return if he wishes to.
8The applicant argues that it was not until he received this document that he learned that he had not been dismissed from employment but only laid off, and that he came to understand that he had not been recalled or given termination pay in violation of the Code. The applicant also argues that the state of his health, difficulties he was experiencing with his landlord, and an email he received from the lawyer representing him in his civil action establish good faith within the meaning of the case law.
THE DECISION
9The adjudicator held as follows, in relation to the date of the last alleged incident of discrimination:
I find as a factual matter that the Application was filed 11 months late. The last allegedly discriminatory incident was the applicant’s layoff on January 28, 2008. Information that he learned about the respondent’s reasons for the layoff as a result of the filing of legal pleadings does not amount to a further incident. See Klein v. Toronto Zionist Council, 2009 HRTO 241 at para. 23.
The adjudicator then went on to consider whether the applicant had demonstrated good faith within the meaning of the Tribunal’s case law and found, at paras. 19-22:
The question, therefore, is whether the applicant has established that the delay in filing the Application was incurred in good faith. In order to satisfy this requirement, the applicant must show something more than simply an absence of bad faith. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24. In Klein, supra, the Tribunal held that an applicant cannot justify a delay on the basis that he only later discovered evidence that would assist in proving the allegation of discrimination. In Lutz, supra, and many subsequent decisions, the Tribunal has held that it is not sufficient for an applicant to say that he was not aware of his rights.
The applicant stated at the hearing that when he learned about his layoff, he was upset. He felt it was unfair because he believed he had been a good performer in his position and suspected that his disability might have had something to do with the layoff. He admitted that he “gave [MRSI] the benefit of the doubt” based on the respondent Regan’s express assurances that the layoff had nothing to do with his sick leave. The fact that the applicant later changed his mind and resurrected his suspicions about the respondent MRSI’s motives does not support a finding that the delay was incurred in good faith.
Moreover, the applicant had counsel throughout the delay period. It is appropriate to infer from that fact that the applicant had access to relevant information about available legal options. I do not accept as credible the applicant’s claim that he did not have knowledge of the Code or of the possibility of legal remedies for discrimination until September 2009, nearly one year after he retained counsel.
ANALYSIS
10Reconsideration is not an appeal, and is granted only in limited circumstances. As the Tribunal stated in Sigrist and Carson v. Toronto District School Board, 2008 HRTO 34, at paras. 56-57:
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.
11The issue before me, therefore, is not whether I would have made the same decision as the adjudicator did. I must determine whether there are exceptional circumstances justifying reconsideration. I will consider this issue in relation to both the definition of the last alleged incident of discrimination and the finding that there was no good faith.
The Last Alleged Incident of Discrimination
12The adjudicator found that the last alleged incident of discrimination was the applicant’s layoff on January 28, 2008. I do not agree with the applicant that the adjudicator should have found that the last alleged incident of discrimination was either the date his lawyer received the Statement of Defence (December 15, 2008), when he says he realized he was not dismissed but continued to be laid off, the date he says his lawyer advised him of his rights under the Code (September 15, 2009), or the present time, given that he has still not been recalled. None of these events is an “incident of discrimination” as defined in the case law. See Mafinezam v. University of Toronto, 2009 HRTO 241; and Hobiak v. St. Mary’s Cement, 2010 HRTO 1799. The reception of information is not an incident of discrimination, although it may assist in establishing good faith in certain circumstances.
13The applicant does allege in his Application that the respondent failed to recall him, and the adjudicator did not specifically deal in his reasons with whether the failure to recall was an event that occurred within the one-year limitation period. It might have been preferable had he done so. However, the adjudicator clearly determined that the last allegedly discriminatory incident was the lay-off. In the circumstances of this case, I do not find that reconsideration is justified based on the determination of the last alleged incident of discrimination. The applicant was taking the position, in the civil litigation, that he had been constructively dismissed prior to the layoff and was not required to attend work. He has provided medical evidence that suggests that following the layoff he was unable to work at any job. He has not asserted that he made any request or other attempt to return to work. In these circumstances, I find that it is neither inconsistent with established jurisprudence for the Tribunal to have selected the date of the layoff as the date of the last alleged incident, nor does it justify reconsideration under Rule 26.5(4). Without any alleged request to return to work, indication of a date he should have been recalled or a factual basis to suggest that he was physically able to do so, the conclusion that the last alleged event was the lay-off does not give rise to a basis for reconsideration.
Good Faith
14The applicant argues that he attempted to introduce a letter from his physician and an email from his lawyer in support of his arguments on good faith, which he says the Tribunal refused to accept or consider. Most of these documents were in the Tribunal’s file as the applicant had filed them prior to the hearing. Given the reliance that the applicant placed upon them, it would have been preferable had the adjudicator specifically indicated in his reasons why they were not relevant or did not change his conclusion. However, having reviewed the documents the applicant says should have been considered, I cannot find that they establish good faith within the meaning of the Tribunal’s case law or that reconsideration is justified based upon the adjudicator’s finding that there was no good faith.
15First, the applicant relies upon an email from his lawyer dated September 15, 2009, in which he says he was first advised of his rights under the Code. The applicant has not provided the Tribunal with complete versions of this e-mail, but has edited it, apparently to preserve solicitor-client privilege in certain respects. Indeed, the applicant provided the Tribunal with two versions of the e-mail that are edited differently: one prior to the hearing and one, following the applicant’s Request for Reconsideration, when the Tribunal requested that the applicant provide a copy of the documents he claimed were not considered in violation of procedural fairness.
16The portions of this email provided do suggest that it was not until September of 2009 that the applicant was first advised of his rights under the Code. I agree with the applicant that the contents of this email might have been relevant to the finding of fact that the applicant was not credible when he stated that he was not aware of his Code rights until September of 2009. However, this does not justify reconsideration. The essential basis of the adjudicator’s finding was that it was not good faith to claim that he was unaware of his rights, in particular when he was represented by counsel. There is no basis on which to find that this conclusion is inconsistent with established case law, and in fact there are various cases that suggest the opposite: Lutz v. Toronto (City), 2009 HRTO 1241; McGhee v. Bell Canada, 2011 HRTO 1197; and Murray v. Craigwood Youth Services, 2011 HRTO 1277. Being advised by a lawyer of one’s Code rights when the one-year period has expired does not establish good faith.
17The applicant also suggests that good faith is established by the state of his health, and by other challenges he was facing in his life. The medical evidence clearly establishes that Mr. Biega experienced depression, panic attacks, and anxiety that made him unable to work. He had difficulty concentrating. He also experienced various other stresses in his personal life. However, the applicant was able to pursue his legal rights through this period as he was doing so in his Court action. While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code. See, for example Dionne v. Toronto (City), 2011 HRTO 317; Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; and Savage v. Toronto Transit Commission, 2010 HRTO 1360. Having carefully considered the evidence the applicant alleges was excluded in violation of procedural fairness, I do not find that the adjudicator’s conclusion that there was no good faith in these circumstances was inconsistent with established case law or that reconsideration is justified based on Rule 26.5(4).
ORDER
18For the reasons set out above, the Request for Reconsideration is dismissed.
Dated at Toronto, this 24th day of January, 2012.
”signed by”______________
David A. Wright
Associate Chair