Lagana v. Saputo Dairy Products Canada G.P., 2012 HRTO 2117

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tony Lagana

Applicant

-and-

Saputo Dairy Products Canada G.P. and Rob Castellano

Respondents

RECONSIDERATION DECISION

Adjudicator: Eric Whist

Date: November 7, 2012

Citation: 2012 HRTO 2117

Indexed as: Lagana v. Saputo Dairy Products Canada G.P.

WRITTEN SUBMISSIONS

Tony Lagana, Applicant

Self-represented

INTRODUCTION

1The applicant filed Applications TR-0419-09 and 2008-00897-I alleging discrimination and reprisal in relation to employment on the basis of disability and age. On July 25, 2012 I issued a Decision on liability following a hearing of the Applications, 2012 HRTO 1455 (the Decision). This Decision addressed six principal issues related to the applicant’s employment with the respondent. In my Decision I determined that the respondent did violate the Code in relation to one of these issues but that there were no violations of the applicant’s rights under the Code in relation to the other five issues.

2On September 4, 2012 the applicant filed a Request for Reconsideration of my Decision in relation to the five issues that did not give rise to a finding of discrimination.

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. Rule 26.1 of the Tribunal’s Rules of Procedure states that any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the Decision. Rule 26.5 provides that:

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.

5In Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34, the Tribunal held that reconsideration is not an opportunity to re-argue a 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 the limited exceptions set out in the Rules.

6The applicant submits that in my Decision I did not apply the appropriate legal test for determining whether an employer has met its duty to accommodate up to the point of undue hardship. The applicant submits that in my Decision I erred in finding that the respondent’s response to the applicant’s complaint of harassment was reasonable. The applicant further submits in the Decision I made other errors in either stating or assessing the evidence that was before me.

7The applicant indicates that in making his Request for Reconsideration he is relying on Rule 26(5)(c) and 26(5)(d), namely that my Decision is in conflict with established jurisprudence and that there are other factors that outweigh the public interest in the finality of Tribunal decisions.

SUBMISSIONS AND ANALYSIS

8The applicant filed his Request for Reconsideration on September 4, 2012, 42 days after the date of the Decision dismissing his Application. The applicant has not given any explanation why this Request was not filed within 30 days of the date of the Decision as required by Rule 26(1). On this basis alone, I could deny the Request for Reconsideration. However, I have considered the applicant’s request under the factors for reconsideration set out in Rule 26(5).

9The applicant’s principal contention is that parts of my decision are in conflict with established jurisprudence for assessing whether an employer has met its duty to accommodate an employee up to the point of undue hardship. To support this submission the applicant quotes case law and outlines his understanding of what an employer’s duty to accommodate requires. The applicant cites, in particular, well referenced Supreme Court of Canada decisions on the duty to accommodate including (British Columbia (Public Service Employee Relations Commission v. BCGSEU 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”); British Columbia (Superintendent of Motor Vehicles ) v. British Columbia (Council of Human Rights) 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 (“Grismer”) and Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 (“Renaud”).

10Significantly, the applicant also referred to these cases and made similar arguments in his oral and written submissions at the conclusion of the hearing.

11I am of the view that the applicant is re-arguing his case. He is relying on a similar synopsis of the law on the duty to accommodate and making similar submissions as he did at his hearing as to why the respondent failed to meet its duty to accommodate. This is not a basis for reconsideration under the Tribunal’s Rules.

12I am also not persuaded that the applicant’s general references to the duty to accommodate as established by the case law, in particular by a series of Supreme Court of Canada decisions, indicate that my Decision is in conflict with the case law or that I have somehow wrongly applied the case law to the facts of this case.

13I would note that the applicant appears to be of the view that the respondent had an obligation, pursuant to the case law he cited, to consider other accommodation than the accommodation it did offer to the applicant as long as this did not create an undue hardship for the respondent. I do not agree that the cases cited by the applicant stand for this proposition. In my Decision I determined that the modified position that was offered by the respondent to begin in September 2007 would meet the applicant’s physical restrictions and his accommodation needs. I am satisfied that under such circumstances the respondent is not required to examine or consider further options to accommodate the applicant as submitted by the applicant and my Decision is not in conflict with the case law. (see Renaud supra and paragraph 110 of my Decision).

14The applicant’s Request for Reconsideration raises a further issue in relation to the duty to accommodate. The applicant submits that in October 2007 the respondent told the applicant of two newly created trial positions in the warehouse and asked the applicant if he wanted to apply for these positions. At the time the applicant had been off work since September 4, 2007. The applicant submits that when he then told the respondent that he was not yet ready to return to work on a full time basis and that he still required modified light work he was told that these two newly created positions would not be suitable for the applicant.

15The applicant submits that the respondent should have made efforts to explore what accommodation the applicant may have needed in order to allow him to fill one of these positions. He submits this accommodation would not cause an undue hardship for the respondent. The applicant submits that the respondent’s unwillingness to consider whether these jobs could be modified constitutes a failure in the respondent’s duty to accommodate.

16The applicant’s submissions as to what took place in October are consistent with the evidence I heard. However, the issue of whether the respondent’s actions in October 2007 constitute a failure to accommodate the applicant was only briefly referred to by the applicant in his closing submissions. The applicant has raised this issue more squarely in his Request for Reconsideration. I am of the view that this issue was addressed in the Decision although not explicitly. As stated by the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 “a decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion”.

17The Decision indicates that in having reviewed the information before me I was not satisfied that the respondent had failed to accommodate the applicant in the time period from September onwards when it required the applicant to return to his position on the afternoon shift. The Decision therefore did not find that the described incident in October 2007 constitutes a failure by the respondent to accommodate the applicant. The evidence before me was that the applicant had been assigned to a position with modified duties and reduced hours when he left work on September 4, 2012. In my Decision, I determined that this modified position did meet the applicant’s accommodation needs and that the respondent had met its duty to accommodate.

18In October the respondent offered the applicant an opportunity to apply for two positions. The respondent understood, at that time, that the applicant would likely be available to return to work full time without restrictions. The applicant then indicated that he was not able to return to the workplace on a fulltime basis without restrictions. In my view it is reasonable, under these circumstances, that the respondent would expect the applicant to return to the modified position that was already in place that met the applicant’s requirements for modified work (as the respondent communicated to the applicant in its December 3, 2007 letter). I do not agree that under these circumstances the respondent’s duty to accommodate the applicant required it to more actively consider modifying the job duties and/or hours of the positions the respondent identified in October as being of possible interest to the applicant. This does not constitute a failure to accommodate because the applicant, as I determined in my Decision, had already been given reasonable accommodation.

19The applicant submits in his Request for Reconsideration that the respondent failed in its duty to accommodate the applicant in June 2007. The issue of whether the respondent accommodated the applicant in June 2007 was dealt with in detail at the hearing. In my view the specific issue raised by the applicant is minor. More importantly, this is an issue the applicant could have raised at the hearing. In my view the applicant is essentially attempting to repair his case by presenting a further argument on a subject that was well canvased at the hearing. This is not grounds for reconsideration.

20The applicant submits that I erred in finding the respondent’s response to the applicant’s allegation of harassment was reasonable. The applicant submits, in part, that I did not give enough weight to the fact that the respondent did not have an established human rights policy and complaints process and that I erred in determining that the length of time the respondent took to conduct its investigation of the applicant’s allegations of harassment was reasonable.

21Again the applicant is attempting to reargue his case. I made clear determinations in my Decision as to the reasonableness of the respondent’s response to the applicant’s allegations of harassment relying on the well-established test for reasonableness set out in the Tribunal’s decision in Laskowska v. Marineland of Canada Inc, 2005 HRTO 30. The applicant disagrees with the correctness of these determinations but reconsideration is not available simply because a party disagrees with a Decision. The applicant has not shown that these determinations are in conflict with established jurisprudence or that there are reasons for reconsideration that outweigh the public interest in the finality of Tribunal decisions.

22The applicant also quotes a few brief passages from my Decision and provides responses to suggest that I have misstated evidence or I have missed relevant information. In some cases the applicant seeks to clarify an issue or to argue about the significance of the issue I have raised or of a finding I have made. In some instances the applicant seeks to link specific events to his broad themes of concern, that the respondent did not meet its duty to accommodate or the failed to appropriately respond to his allegations of harassment. These are generally minor issues or issues that were or could have been raised during the hearing. They do not suggest a conflict with the jurisprudence or outweigh the public interest in the finality of Tribunal decisions.

23In sum, I find that the applicant has not established that he has met the test for reconsideration under Rule 26(c) or (d) that would justify reconsideration of the Tribunal’s Decision.

24The Request for Reconsideration is denied.

25I directed the parties in my Decision to file written materials on the issue of remedy. I have received these materials. The Tribunal will schedule a half day in-person hearing to allow the parties to make submissions and to provide evidence in support of their proposals for remedy.

26If either party wishes to file any additional documentation, including facts, material or case law, they are required to deliver such documentation to the other party and file it with the Tribunal no later than 14 days prior to the date of the hearing.