Bartley v. Cott Corporation, 2012 HRTO 2100

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rupert Bartley Applicant

-and-

Cott Corporation Respondent

RECONSIDERATION DECISION

Adjudicator: Douglas Sanderson Date: November 5, 2012 Citation: 2012 HRTO 2100 Indexed as: Bartley v. Cott Corporation

WRITTEN SUBMISSIONS

Rupert Bartley, Applicant Brandon O’Riordan, Counsel

Cott Corporation, Respondent Julie O’Donnell, Counsel

1The applicant requests Reconsideration of the Tribunal’s Decision of March 27, 2012, 2012 HRTO 630, dismissing this Application because it had no reasonable prospect of success following a summary hearing held on December 21, 2011.

2The circumstances in which Reconsideration may be granted are set out in Rule 26.5:

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.

3The 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.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

4The applicant filed a Request for Reconsideration (the “Request”) on April 26, 2012 and relies upon Rules 26.5(a) and 26.5(c). On June 25, 2012, the Tribunal directed the respondent to provide written submissions regarding the Request, which the respondent filed on July 9, 2012.

5In the Application, the applicant alleged that he worked for the respondent either through an employment agency or as a casual employee for several years. The applicant alleged that he attempted to become a permanent employee on several occasions, but was unsuccessful despite his experience and apparently good rapport with the respondent. The applicant attributed his lack of success to discrimination because of race, colour and age.

6The Tribunal ordered a summary hearing in the matter by case assessment direction ("CAD") dated July 14, 2011. In that CAD, the Tribunal directed the applicant to make argument about why the Application should not be dismissed as untimely and/or having no reasonable prospect of success, and to point to the evidence on which the applicant would prove a link between the respondent's actions and the grounds cited.

7The applicant filed the Application on March 22, 2011. In the Decision, the Tribunal dismissed as untimely allegations based on incidents alleged to have occurred prior to March 21, 2010 because the applicant was unable to provide a good-faith explanation for his delay in filing the Application. The Tribunal also found that the allegations regarding the decision not to hire him in March 2010, which the Tribunal found to be untimely, to have no reasonable prospect of success. In particular, the Tribunal concluded that the applicant had not identified any evidence of differential treatment related to his race, colour or age regarding a test the respondent used to screen candidates. The Tribunal dismissed the only timely allegation related to the decision not to hire him in March 2011 for having no reasonable prospect of success.

Submissions

The Applicant

8The applicant submitted that he has new facts or evidence that he could not have reasonably obtained before the summary hearing. Specifically, the applicant submitted that on or about April 19, 2012 a Mr. Stennett and a Ms. Robinson, respectively a current and former employee of the respondent, contacted the applicant and provided him with evidence that may indicate that the respondent applied the screening test in a differential manner contrary to the Code. The applicant submitted that these new facts link the respondent’s actions to the prohibited grounds of discrimination of age, sex and race and could be determinative of the issue of whether the allegations regarding the screening test have no reasonable prospect of success.

9The applicant submitted that the respondent informed seasonal workers, including the applicant, whether they would be hired full-time in September 2010, not prior to March 21, 2010 as stated in the Decision. The applicant submitted that he made this statement at the summary hearing. The applicant submitted that this alleged incident took place within the one-year time limit set out in section 34(1)(a) of the Code. Alternatively, the applicant submitted that the Tribunal erred in failing to consider whether the applicant’s allegations amounts to a series of incidents within the meaning of section 34(1)(b) of the Code. The applicant submitted this error is inconsistent with the Tribunal’s jurisprudence regarding what constitutes a “series” under section 34(1)(b).

The Respondent

10The respondent submitted that the Tribunal Rules and jurisprudence make clear that Reconsideration is not an appeal. Accordingly, there must be more than disagreement with the Tribunal decision or an alleged error to find that the conditions in Rule 26.5 have been reached.

11The respondent submitted that the new evidence the applicant presented is false and, in any event, does not indicate that the applicant was unable to obtain permanent employment because of his age, race or colour. The respondent submitted that the applicant is attempting to advance new allegations of discrimination that were not included in the original Application, which the Tribunal has clearly indicated is not permissible. The respondent therefore submitted that the applicant's new evidence could not be determinative of the case.

12The respondent also submitted that the applicant did not explain why his new evidence could not have been obtained earlier and that the Tribunal has held that a request under Rule 26.5(a) cannot succeed without such an explanation. The respondent submitted that the circumstances under which Mr. Stennett and Ms. Robinson provided him with his new evidence suggest that he could have obtained this information sooner. Regardless, the respondent submitted the applicant's failure to explain why this evidence could not be obtained earlier was fatal to this request under Rule 26.5(a).

13The respondent submitted that the applicant did not argue that the events of 2010 and 2011 constitute a series of events pursuant to section 34(1)(b), as was noted in the Decision itself. Therefore, the Tribunal had no reason to and was not required to rule on this issue. Accordingly, the respondent submitted that the applicant was attempting to re-argue his case, which is not permitted pursuant to the Tribunal's jurisprudence. In any event, the respondent submitted that the incidents in question do not amount to a series of incidents for the purposes of section 34(1)(b) of the Code.

14The respondent submitted that there is no record of the applicant arguing that he was not informed of the decision not to hire him until September 2010, as opposed to prior to March 21, 2010. Rather, the applicant was aware that he would not be hired after he failed the screening test in March 2010, since he accepted the respondent's offer of casual employment. The respondent submitted that the Tribunal's alleged error would have no bearing on the outcome of the case because the Tribunal ruled that the allegation that the decision not to hire him was discriminatory had no reasonable prospect of success. Finally, the respondent reiterated that Reconsideration is not an appeal and the Tribunal has held that there must be more than disagreement with the Decision or alleged error to warrant Reconsideration.

Analysis and Decision

15To meet the test set out in Rule 26.5(a), the party requesting Reconsideration must establish that there are new facts that could potentially be determinative of the case and establish that these new facts could not reasonably have been obtained earlier. The Tribunal has found that the absence of either of these requirements is fatal to a Request for Reconsideration under Rule 26.5(a). See M.K. v. 1217993 Ontario, 2011 HRTO 1362.

16The applicant identified facts or evidence that it contends are new and explains why he believes these facts may be determinative regarding the conclusions the Tribunal reached following the summary hearing. Other than a bare assertion, however, the applicant provided no explanation regarding why he could not have obtained this evidence earlier. Consequently the applicant has not met the requirements of Rule 26.5 (a).

17In the CAD of July 14, 2011, the Tribunal explicitly advised the parties that timeliness was an issue in this Application and directed the applicant to make submissions on this issue. In doing so the Tribunal quoted section 34(1) and (2) of the Code. Section 34(1)(b), of course, indicates that a person may bring an Application within one year after the last of a series of incidents. Section 34(2) allows an Application to be filed after the one-year time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result. Accordingly, the applicant was aware that it was open to him to argue that the alleged incidents described in his Application amounted to a series. However, the applicant made no such arguments during the summary hearing and confined his submissions to whether the delay had been incurred in good faith. I did not consider whether the incidents amounted to a series because the applicant did not raise the issue. There is no basis for finding the Decision to be inconsistent with Tribunal jurisprudence regarding the meaning of a “series” under section 34(1)(b), since the issue was not addressed at all.

18In my view, the applicant's submissions regarding the applicability of section 34(1)(b) amount to an attempt to repair a deficiency in the presentation of his case at the summary hearing. The Tribunal's jurisprudence and the Practice Direction on Reconsideration make clear that this is not the purpose of Reconsideration. See Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34.

19As is also clearly enunciated in the Practice Direction on Reconsideration and in the Tribunal's jurisprudence, Reconsideration is not an appeal or evaluation of alleged errors in a Decision. See Latronico v. York Region District School Board, 2012 HRTO 637 and 4137566 Canada Ltd. v. Clements, 2011 HRTO 1008. Therefore, the applicant’s submissions that the Tribunal erred in its Decision do not establish grounds for Reconsideration. However, I will address the applicant's argument related to his assertion that he made submissions during the summary hearing to the effect that the respondent informed him that it would not hire him as a permanent employee in September 2010.

20The applicant submitted in the Request for Reconsideration that he stated during the summary hearing that it was in September 2010 that he learned he would not be hired, not prior to March 21, 2010 as is indicated in the Decision. The applicant therefore submitted the failure to hire him on a permanent basis in 2010 was within the one-year time limit set out in section 34(1).

21The applicant did in fact state during the summary hearing that the respondent informed him that he would not hire him as a permanent employee in September 2010. However, the applicant made this statement in an entirely different context than he suggested in the Request for Reconsideration. The applicant did not state that he first learned that he would not be hired permanently in September 2010 after failing the screening test in March of that year. Rather, the applicant stated, as was set out in his Application, that the respondent hired him as a casual worker after the exam and he worked in that capacity until September 2010. The applicant clearly understood that he had been unsuccessful in securing permanent employment in March 2010 and did not suggest otherwise during the summary hearing. In its Response and During the summary hearing, the respondent also submitted that it informed the applicant that he would not be hired permanently prior to March 21, 2010, after he failed the exam, and the applicant did not contradict this assertion.

22The applicant's statement that the respondent would not hire him in September 2010 formed part of his submissions in which he stated that the respondent repeatedly declined to hire him permanently, but assured the applicant that permanent employment remained a possibility. These submissions were the applicant's explanation for the delay in filing the Application. The applicant did not suggest that the respondent's statement to him in September 2010 was itself an incident of discrimination and did not point to any evidence that would link it to a prohibited ground of discrimination. Indeed, the applicant did not include this incident in his Application. Even assuming the respondent's statement to the applicant in September 2010 could be connected to his failure of the screening test in March 2010, I have found the allegations regarding the test have no reasonable prospect of success.

23The applicant has not established that the Decision is in conflict with established jurisprudence or Tribunal procedure and made no submission regarding how the proposed Reconsideration involves a matter of general or public importance. Consequently, there is no basis for granting Reconsideration pursuant to Rule 26.5 (c).

24In my view, the applicant provided no reason to conclude that compelling and extraordinary circumstances exist that would call for Reconsideration of the Decision to dismiss the Application.

25The Request for Reconsideration is dismissed.