Britton v. General Motors of Canada, 2012 HRTO 2080

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Phil Britton

Applicant

-and-

General Motors of Canada

Respondent

RECONSIDERATION DECISION

Adjudicator: Leslie Reaume

Date: October 31, 2012

Citation: 2012 HRTO 2080

Indexed as: Britton v. General Motors of Canada

WRITTEN SUBMISSIONS

Phil Britton, Applicant

Corinne A. Muccilli, Counsel

General Motors of Canada, Respondent

David J. Bannon, Counsel

1The respondent filed a Request for Reconsideration of the Tribunal’s Decision, 2012 HRTO 683, pursuant to section 45.7 of the Ontario Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”). The Decision was made on the basis of written materials filed by both the respondent and the applicant.

2In the original Decision, the Tribunal found that the applicant suffered a seizure at work. The Tribunal also found that the applicant was humiliated by a number of individuals who mistreated him and physically restrained the applicant from leaving his workplace following the seizure. The Tribunal found in favour of the applicant and awarded compensation for injury to dignity, feelings and self-respect in the amount of $10,000.00.

3For the reasons that follow, the Request is granted. The Tribunal appears to have attributed liability to the respondent not just for the actions of its own employees, but for actions taken by the paramedics and police officers who attended at the scene as the applicant was attempting to leave his workplace. This factor, which is inconsistent with the Code and established Tribunal jurisprudence, outweighs the public interest in the finality of Tribunal decisions.

ANALYSIS

4Section 45.7 of the Code provides the Tribunal with explicit authority 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.

5Further to its power to make rules, the 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. Rule 26 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.

6The 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.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 (Sigrist), the Tribunal confirmed that reconsideration is not an opportunity to re-argue a case. Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. Once the parties to an application 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.

8The Request before me cites Rules 26.5(c) and (d) as the basis for granting reconsideration. The respondent alleges a number of factual errors on the part of the adjudicator. In Garrie v. Janus Joan Inc. 2012 HRTO 1955 (Garrie), the Tribunal panel expressed the view that the Tribunal must exercise this reconsideration power with care. In my view, that includes the necessity to be mindful of the distinctions between the role of the Tribunal on reconsideration and the role of the Courts in conducting a review of a decision of the Tribunal. For that reason, I do not consider it necessary, or appropriate, to address the numerous factual errors which are alleged to have been made by the adjudicator, all of which are the subject of a different interpretation by both the applicant and respondent.

9The factor I consider determinative of this Reconsideration Decision is the reliance in the original Decision on the actions of third-party paramedics and police officers in determining liability and remedy against the respondents.

10Section 46.3 of the Code states:

(1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

11In paragraph 8 of the original Decision the adjudicator found that between four and five security guards, as well as the applicant’s supervisor, were waiting for him when he arrived at the exit to his employer’s premises after a seizure. The adjudicator found that a security guard, employed by the respondent, held the applicant in a bear hug position from behind as he attempted to leave work. The adjudicator then found that the other security guards and paramedics joined in, physically restraining the applicant. He further found that one of the paramedics taunted the applicant by lifting his leg and threatening to kick in a karate-style motion while the applicant was restrained. He also found that a police officer threw the applicant to the ground, handcuffing him and then taking him away, all of which took place in view of several dozen people.

12The adjudicator accepted, and no one seriously disputed, that the entire experience caused the applicant immeasurable pain. The respondent’s concern is that the actions of the third-party paramedics and police officers, which appear to account for some of the worst aspects of the humiliation suffered by the applicant, were relied upon in determining that the respondent had failed to accommodate the applicant.

13In paragraph 25 the adjudicator states: “The respondent has not satisfied me as to what was different about the occasion on March 7, 2007 so as to justify the extreme measures taken to forcibly prevent the applicant from leaving its premises and going home.” I have also had regard to the factors and findings in the remedial portion of the adjudicator’s decision, in particular the reference to “the physical restraint [the applicant] experienced at the exit of his workplace” at paragraph 34 and the adjudicator’s statement that he could not disregard “the public humiliation that the respondent caused” at paragraph 37. In the absence of a statement by the adjudicator to the contrary, I interpret the use of these statements to include the conduct of the paramedics and police officers who attended the scene and it appears that this conduct was not expressly disregarded with respect to the liability findings and the remedial orders arising from those findings. However, the adjudicator did not make a finding that the relationship between the third parties and the respondent fell within the range of relationships described in section 46.3 (1) of the Code.

14Reconsideration outweighs the public interest in the finality of tribunal decisions in this case because, as the Tribunal explained in Sigrist, the legitimacy of the Tribunal is related to its ability and willingness to undue an unfair result or process, or correct a wrong. In this case, reconsideration will correct an unfair result, where the respondent finds itself responsible for the actions of third parties where there has been no determination that the relationship among them falls within section 46.3(1).

Order

15For the reasons set out above, I find that it is appropriate to reconsider the Tribunal’s Decision. In accordance with the reasoning in Garrie, I find that it is not appropriate to make any findings regarding the merits of the allegations of discrimination or the remedy to be awarded should these allegations be proven. The adjudicator who heard the case is no longer a member of the Tribunal. In the circumstances, the case must be re-heard.

16The Tribunal will schedule a re-hearing at the earliest possible date.