Zeng v. University Health Network, 2012 HRTO 2033

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Zeng

Applicant

-and-

University Health Network and Maria Armenta

Respondents

-and-

Ontario Public Service Employees Union

Intervenor

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: October 25, 2012

Citation: 2012 HRTO 2033

Indexed as: Zeng v. University Health Network

WRITTEN SUBMISSIONS

Lisa Zeng, Applicant

Self-represented

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in respect of employment on the basis of disability and reprisal.

2Following a preliminary hearing by teleconference, the Application was dismissed on September 6, 2012, pursuant to section 45.1, on the basis that the substance of the matter before the Tribunal had been appropriately dealt with in another proceeding, 2012 HRTO 1689.

3On October 5, 2012, the applicant filed a Request for Reconsideration. For the reasons that follow, the applicant’s Request for Reconsideration is denied.

DECISION

4Section 45.7 of the Code provides the Tribunal with authority and discretion to reconsider its decisions:

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.

5The Tribunal has issued rules governing Requests for Reconsideration, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

6Rule 26.5 states that 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.

7The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

8The applicant has sought reconsideration on the basis of the grounds outlined in Rule 26(5)(a), (b) and (c) and made lengthy submissions in support of her request.

9The applicant was employed as a medical laboratory technician by the respondent employer (University Health Network) beginning in October, 2009. Her employment was terminated on January 20, 2010. A grievance, dated January 27, 2010, was filed by the intervenor union in relation to the applicant’s termination.

10The grievance process concluded in the release of an Arbitration Decision, dated September 5, 2010, issued by Arbitrator F.M. Reilly, in which he ruled as follows:

I find that the Grievor [Ms. Zeng] was an employee with an injury that was subject to accommodation under the Code. Sufficient evidence was lead to show that at least one of the reasons for terminating the Grievor’s employment when it did was her need to be accommodated for a period of six months. I find that this in itself is a violation of the Code.

As a result, I order the Employer to pay to Ms. Zeng forthwith the sum of Eight Thousand Five Hundred ($8,500.00) as general damages with no deduction for income tax or other statutory deductions being made as I find her immediate supervisors were motivated at least in part by a desire to end the employment relationship rather than accommodate the Grievor to modified work.

11In the decision dismissing the Application under s. 45.1, the Tribunal ruled that the principles outlined in the Supreme Court of Canada’s decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”) were determinative of the issues before it, ruling that it was clear the arbitrator considered all issues relating to accommodation and termination arising out of the applicant’s employment with the respondent, as well as remedial requests made by the parties before him and that it was not the Tribunal’s role to revisit those findings.

12Despite the length of the applicant’s submissions, they amount to a restatement of the arguments already advanced by both her and her former legal counsel, and considered by the Tribunal.

13In addition, she suggests that she was denied procedural fairness and that she was not given a chance to properly present her arguments.

14I note that the applicant was given an opportunity to present written material in advance of the teleconference as well as the opportunity to fully present her oral argument during the course of the conference call and she took full advantage of both avenues.

15It is clear that the applicant disagrees with the remedial portion of Arbitrator Reilly’s ruling and her union’s decision not to proceed with an application for judicial review of that decision.

16While it is also clear that she disagrees with the result of this Tribunal’s decision, she has provided no basis on which to reconsider or reverse it. Accordingly, the Request for Reconsideration is dismissed.