Tony Lagana v. Saputo Dairy Products Canada G.P. and Rob Castellano, 2012 HRTO 2118

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 2118 Indexed as: Lagana v. Saputo Dairy Products Canada G.P.

WRITTEN SUBMISSIONS

Saputo Dairy Products Canada G.P, Respondent

Ranjan Agarwal, Counsel

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. This Decision dismissed most of the applicant’s allegations but did find that the respondent failed to accommodate the applicant in April and May 2007. I determined that during this period the applicant was required to perform duties beyond his medical restrictions.

2This determination was based on finding key aspects of the applicant’s testimony as to what occurred during this period to be more credible than the evidence provided primarily by the respondent’s witness, Rob Castellano, the applicant’s supervisor, In making this credibility assessment I gave some weight to case notes made by Nancy Nasso, the applicant’s Workplace Safety and Insurance Board (“WSIB”) case manager which considered the nature of the applicant’s work assignment with the respondent in April and May 2007.

3The respondent’s Request for Reconsideration submits that I gave considerable and inappropriate weight to the WSIB case manager’s notes, in particular a note of June 20, when assessing the credibility of the witnesses before me.

4The respondent filed its Request for Reconsideration on August 24, 2012. Under 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. The relevant Tribunal Rule is Rule 26.5 which 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.

5The 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.

6As the Practice Direction makes clear reconsideration is a discretionary remedy. I further note that in Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34 the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once 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.

SUBMISSIONS AND ANALYSIS

7The respondent submits that I erred in placing undue and inappropriate reliance on statements contained in the WSIB case manager’s notes in preference to the evidence provided by Mr. Castellano and Ms. Roehl.

8Ms. Nasso’s June 20, 2007 note states that she had a telephone conversation with Mr. Castellano in which she confirmed the applicant’s job duties “as described” and that Mr. Castellano agreed that the applicant’s job may not be suitable for someone with a back injury but was all he had available and the applicant was willing to try the job. The respondent submits that I failed to adequately consider the fact that Ms. Nasso’s notes do not clearly indicate what job duties she may have described to Mr. Castellano and whether she was referring to the duties of the applicant’s full time position or whether she was referring to the applicant’s modified duties. In other words, the respondent argues that Ms. Nasso’s notes are ambiguous as to whether Mr. Castellano was agreeing that the applicant’s regular job duties were not suitable and that the applicant was performing some of these duties thereby acknowledging that he was carrying out work beyond his medical restrictions or, alternatively, that Mr. Castellano was agreeing that the applicant’s modified duties were unsuitable which could suggest that the applicant was having difficulties with tasks that were within his medical restrictions. In my Decision, I concluded that Ms. Nasso’s notes were corroborating evidence that supported the applicant’s evidence that he had been obliged to work beyond his medical restrictions.

9The respondent further submits that Mr. Castellano’s uncontradicted evidence was that he was engaged in a brief conversation with Ms. Nasso on June 20 and did not recall telling Ms. Nasso that the applicant’s duties were unsuitable, that he did recall having confirmed some of the general duties of the applicant’s position but could not recall specifically what duties had been discussed.

10The respondent submits that absent direct oral evidence from Ms. Nasso on what she understood happened in her exchange with Mr. Castellano the Tribunal should put little weight on the content of her notes and, in particular, the June 20, 2007 note.

11The respondent submits that in making its Request for Reconsideration it 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.

12I find that it would be helpful to quote the passage from my decision that deals with how I arrived at my decision as to whether the respondent met its duty to accommodate the applicant in April and May 2007. This passage also references Ms. Nasso’s notes, including her note of June 20, 2007.

In deciding whether the respondent met its duty to accommodate the applicant during the period April 23 to May 31, 2007 I would first note that I am satisfied, based on the evidence before me that the respondent did assign the applicant modified duties in response to the functional abilities form the applicant provided on April 22. The evidence is that the applicant was assigned to pick special orders that required reduced lifting. He was assigned additional cleaning duties and, it appears, additional work loading and unloading trucks. However, the more difficult issue is whether the applicant was assigned duties that required him to work beyond the restrictions outlined in his functional abilities form and that would lead me to find that the respondent failed in its duty to accommodate?

Mr. Castellano testified that he did not assign duties that exceeded the applicant’s medical restrictions. He testified that the applicant was not required to shrink wrap and never had to go into the freezer, tasks that were beyond the applicant’s restrictions. The applicant indicated that he was required to enter the fridge and freezer during this period. Mr. Castellano testified that the applicant was told he could decline to do a task if he was of the view he could not do it. The applicant denied that he was given this discretion. These differing accounts raise an issue of credibility. Whose account do I find to be more credible?

I do not find either account to be entirely credible on all points. I do not find the applicant’s contention that Mr. Castellano never told him that he could decline work that might affect his back to be credible. I prefer Mr. Castellano’s testimony that he did say this to the applicant as it was his general practice to tell an employee that they could decline work when injured. I accept that this was part of an informal accommodation practice used by Mr. Castellano in a work environment where it appears there was an ongoing need to manage short term and informal requests for accommodation because of the physical demands of the work.

That said, I do not find Mr. Castellano credible when he testified that in April and May the applicant only entered the fridge on one occasion and never entered the freezer and that the applicant never performed tasks beyond his medical restrictions. I prefer and accept the applicant’s testimony that there were indeed occasions where he was required to carry out work beyond his restrictions that included, for example, having to go into the freezer.

In making this credibility assessment in favour of the applicant’s testimony that he did carry out work beyond his restrictions, I find it significant that it was agreed by both sides that the applicant told Ms. Roehl on June 4 that he was required to work beyond his restrictions. This was the testimony of the applicant, Ms. Roehl and Mr. Zbaraschuk. In other words it was not disputed that the applicant was claiming that he was obliged to work beyond his restrictions shortly after the period in question.

In making this credibility assessment I have also relied on the fact that the question of whether the applicant had to carry out work beyond his restrictions in April and May 2007 was very much an issue that was considered by the applicant’s WSIB case manager, as documented in her case notes. The case manager makes the following notes after a conversation with Ms. Roehl on June 12:

IW [Injured Worker] informed her [Ms. Roehl] that he didn’t feel that work he was doing previously was suitable

–he had medical restrictions that he could not go into freezer and couldn’t do the shrink wrapping job but was asked to do this

–she asked his supervisor about this who denied that he was being asked to do this; he was only responsible for light order picking

On June 14 the WSIB case manager has a conversation with the applicant and makes the following notes:

With regard to the modified duties IW was doing until he stopped working it consisted of the following:

-Ist 3 hrs was required to pick orders in the fridge/freezer

-lifting restriction was to 10 kilos-did not exceed this

When getting product he’s required to bend and forward reach-this aggravates his back

He would also do some forklift driving and when driving backwards the twisting of his back would increase soreness

-he was required to shrink wrap which involved pulling a roll of wrap around the skid manually –this increased his back pain

-last portion of the day he levels and picks up cardboard from floor

-cardboard is large pieces and could range up to 300 pieces

-leveling involves adjusting boxes on skids –he’s required to squeeze through tight areas to get to certain boxes

-the awkward back positions aggravate his back

I will verify with AE [accident employer] whether Job Description is accurate if versions are inconsistent I will have ergonomist perform ass’t [assessment]

On June 19 the case manager spoke to the applicant’s doctor and records in her notes:

I explained that AE has modified duties and explained what they were:

general clean up sit down sweeper, forklift, standing and writing summaries, filing

Dr. Nagdhi responded that IW is able to do office type work, and agreed with standard back precautions that I tend to follow

-she explained that IW was doing OK, but his condition had worsened while doing the modified work as she felt it wasn’t suitable

…I explained due to different versions of the job description I would arrange for an ergonomist to visit the worksite with wpps [workplace parties] present to make a ruling on the risk factors for aggravating a low back condition

She strongly agreed with this

-in the meantime I will clarify IW had appropriate modified duties for IW

On June 20 the WSIB case manager leaves a message for Ms. Roehl to contact her about the details of the modified position as described to her by the applicant on June 14. It appears the case manager was unable to make contact with Ms. Roehl and subsequently contacts Mr. Castellano by telephone and records that:

Rob confirmed the IW’s duties as described

-he agreed the job may not be suitable for someone with a back injury but said that was all he had available and the IW is willing to try the job

Mr. Castellano testified that his conversation with the WSIB case manager was very short, that he did not recall being given a list of the applicant’s job duties to confirm or that he indicated that the applicant’s job duties may not be suitable for the applicant. (emphasis added in Reconsideration Decision)

I find the WSIB case manager’s notes to be corroborating evidence that supports the applicant’s contention that he performed tasks beyond his medical restrictions in April and May. It is relevant, in my view, that the WSIB case manager is an independent third party making contemporaneous notes of her phone conversation with the applicant and Mr. Castellano.

I find that the fact that these prior statements were made goes to the consistency of the applicant’s testimony and is evidence that contributes to my preferring the testimony of the applicant that he was working beyond his restrictions. I find it particularly significant that the WSIB case manager also records that Mr. Castellano acknowledged that the applicant was working beyond his restrictions.

The respondent submits that the applicant should have called the WSIB case manager if he wanted to rely on the case manager’s notes, particularly given that Mr. Castellano did not agree with the case manager’s account of their telephone conversation on June 20. I do not agree that this was necessary. I am of the view that the applicant is entitled to admit these notes as evidence that the statements were made and as discussed above, I am also of the view that it is reasonable for me to attach some weight to the WSIB case manager’s contemporaneous notes about a series of related conversations about the specific issue of whether the applicant was working beyond his restrictions. This is particularly so in light of the testimony of Mr. Castellano who testified that he did not recall the particulars of his conversation with the WSIB case manager.

13The respondent does not provide submissions as to why my decision is in conflict with established case law. It does state that the applicant should have called Ms. Nasso as a witness if he intended to rely on her notes and that he did not refer to his intention to rely on these notes in his own direct evidence which the respondent submits ultimately violates the rule in Browne v. Dunn (1893), 6 L.R. 67 (H.L.). The respondent made no specific argument as to the significance of the rule in Browne v. Dunn in terms of my credibility assessment and the weight I gave Ms. Nasso’s notes.

14In this case, the applicant disclosed the WSIB case notes in advance of the hearing as part of the documents he was relying upon. They were made an exhibit at the outset of the applicant’s testimony without any objection by the respondents. The applicant cross-examined Mr. Castellano on the notes and the respondent examined Mr. Castellano on the notes in reply. The respondent made submissions on the weight to be given to the notes in closing submissions.

15As discussed above, the Decision made a finding on credibility and the weight to be given to the WSIB case manager’s notes. I am not satisfied that the respondent has presented a persuasive legal argument for why this finding is in conflict with the jurisprudence or Tribunal procedure. Accordingly, there is no basis upon which to grant reconsideration pursuant to the criterion in Rule 25.5(c).

16With regard to the criterion in Rule 25.5(d), I have considered whether the respondent’s request has raised sufficient concerns about the reliability of the WSIB notes such that I would no longer be prepared to find that I prefer the applicant’s account of key events in April and May 2007 when I concluded that he was obliged to work beyond his medical restrictions and the respondent violated his rights under the Code.

17I see no reason to grant reconsideration of my assessment of credibility as to what occurred in April and May 2007. I note that I did find the applicant credible in relation to his testimony that he was obliged to carry out tasks beyond his medical restrictions. The respondent’s request for reconsideration makes no assertions that my reliance on the applicant’s own testimony was somehow flawed.

18The respondent has now specifically raised a concern about what may have been discussed between Ms. Nasso and Mr. Castellano on June 20, 2007. The respondent submits that there is both an ambiguity in Ms. Nasso’s notes as to what job duties may have been discussed and that Mr. Castellano’s recollection of his telephone conversation with Ms. Nasso is at odds with these notes. The respondent submits that, accordingly, as I should give Ms. Nasso’s notes less weight.

19The respondent is, in effect, challenging a finding in my Decision and arguing that I have made an error in assessing and weighing the evidence before me and arriving at my finding in relation in Ms. Nasso’s notes. I am not satisfied that this is grounds for reconsideration. The respondent’s made arguments in the hearing about the evidence and they have not raised anything new at this point that could not have been argued before.

20I would, nonetheless, point out that Ms. Nasso’s notes from her conversation with the applicant on June 14, 2007 record the applicant as describing his job duties as including being required to pick orders in the fridge and freezer and having to shrink wrap products. These are job duties that exceed his agreed upon modified duties. Ms. Nasso’s June 20, 2007 note specifically states that she left a message with Ms. Roehl to contact her to confirm details of the modified position as described by the applicant in his conversation with Ms. Nasso on June 14, 2007. She then next records in her notes that she spoke to Mr. Castellano who confirmed the applicant’s duties “as described”. Although my Decision does not explicitly state this I did find in my Decision that the job duties that Ms. Nasso states that she discussed with Mr. Castellano on June 20, 2007 were the ones the applicant had raised with Ms. Nasso in a conversation on June 14, 2007. I remain satisfied of my finding that Ms. Nasso’s notes corroborate the applicant’s account of events and his evidence that he was carrying out tasks in April and May 2007 beyond his medical restrictions. I am not satisfied that there are other factors existing which would outweigh the public interest in the finality of this decision.

21In sum, I find that the respondent has not established that it has met the test for reconsideration in Rule 26(c) and (d) that would lead to reconsideration of the Tribunal’s Decision.

22The request for reconsideration is denied.

23I 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.

24If 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.