Lemieux v. Guelph General Hospital, 2012 HRTO 303

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lydia Lemieux Applicant

-and-

Guelph General Hospital, Audrey Henderson, Annette Harrington and Kaye Snowe Respondents

Reconsideration DECISION

Adjudicator: David Muir Date: February 10, 2012 Citation: 2012 HRTO 303 Indexed as: Lemieux v. Guelph General Hospital

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, dated June 29, 2009. The underlying human rights complaint was filed with the Ontario Human Rights Commission (the "Commission") on July 3, 2007. On January 23, 2012 the applicant filed a Request for Reconsideration of 2011 HRTO 2241 in which I dismissed the Application.

2The central allegation made in the human rights complaint underlying the Application was that the respondent employer had discriminated against the applicant in terminating her employment for absenteeism which the applicant claimed had been caused in part by a disability disclosed to the respondent as well as two periods of time for which Workplace Safety and Insurance Act claims had been made. I concluded that whether or not the applicant was a person with a disability at the time, the respondent had never been made aware of an alleged disability or any request to accommodate the applicant. I also found that the one period of time for which WSIA benefits had been claimed at the material time, was not considered by the respondent in their decision to dismiss the applicant and the other WSIA claim period would not have been known to the respondent employer at the time because it was only commenced by the applicant several months after the fact.

3The Code and the Tribunal's Rules of Procedure for Transitional Applications Pursuant to Sections 53(3) and 53(5) of the Code (the "Transitional Rules of Procedure") provide for the reconsideration of a Tribunal Decision in certain very restricted circumstances. Section 45.7 of the Code states:

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.

4The Transitional Rules of Procedure provide that any party may request reconsideration of a decision in accordance with Rule 25.5.

Rule 25.5 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.

5The Tribunal's Practice Direction on Reconsideration highlights the discretionary nature of the Tribunal's reconsideration authority. The Tribunal will only reconsider a decision where it finds there are compelling and extraordinary circumstances for doing so and where those circumstances outweigh the public interest in finality of the decision. The Practice Direction further notes that:

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

6The applicant relies on paragraphs (a) and (d) of Rule 25.5 above. The applicant states that there is new evidence, potentially determinative of the case, which could not reasonably have been obtained earlier.

7In her submissions the applicant makes a number of allegations about the conduct of third parties who did not participate in this Application and other decision makers some of whom were respondents in other Applications the applicant has commenced at the Tribunal and which have been dismissed. This is a request for reconsideration in respect of this Application and Decision 2011 HRTO 2241. The submissions the applicant makes about other matters are irrelevant to this Request and I make no further comment about the other matters that the applicant has raised.

8Although the applicant states that there is new evidence that is potentially determinative of this case, after reviewing the applicant's submissions I am not satisfied that there is any basis for this conclusion. The applicant argues that I failed to record in my Decision various issues related to two Workplace Safety and Insurance Act proceedings that are apparently ongoing. In particular, the applicant seems to be concerned that I did not specifically note that one of her two claims has been "re-established". Whether or not this particular claim has been "re-established" was irrelevant to my conclusions because the evidence was that the respondent did not consider any days lost from work allegedly in relation to this WSIA claim. More generally, other than the mere fact that the applicant had made one or two WSIA claims during the currency of her employment the content and progress of those claims was irrelevant to the issues in dispute in this Application.

9In her submissions in respect of her Reconsideration Request, the applicant provided an unsigned medical note dated January 13, 2012, which states that the applicant is able to perform "observership as part of a graduated return to work plan". This may be new but it is irrelevant to the issues in dispute in this Application. The applicant's current state of health is not relevant to the state of affairs which existed in January 2007 and which formed the basis for the decision to dismiss made by the respondent employer. Accordingly, I find that there is no new evidence offered by the applicant in her submissions that could have materially affected the result of this proceeding.

10In her Request for Reconsideration, the applicant also takes issue with a number of my findings of fact, most of which are tangential to the central issues in dispute in this case and immaterial to my key findings. In any event, a Request for Reconsideration is not an opportunity to question the findings of fact of a Tribunal member nor is it an opportunity to re-argue the case: see the Tribunal's Practice Direction on Reconsideration and Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34.

11In summary, the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration. The Request does not satisfy the requirements of Rule 25.5. The Request for reconsideration is denied.

Other Matters

12The applicant has also filed a Request for Order During Proceeding (Request) seeking the following relief in respect of this and several other Applications:

In light of inaccurate information contained in HRTO documentation published on the website some of which relates to Lydia's personal health, and some of which relates to Lydia's WSIA proceedings that have not yet been completed regarding occupational injury and/or occupational illness at Guelph General Hospital (her primary employer) and at Stone Lodge Retirement Residence (her secondary employer)-this is to request the removal of all documentation from the website regarding the four Human Rights applications that I filed on Lydia's behalf, as holder of Power of Attorney for her, due to Lydia's sudden medical inability to continue to represent herself in her search for justice, and due to her and my inability to afford to hire professional representation for her. The Human Rights applications I filed on Lydia's behalf are identified on the website as follows:

1. Lemieux v. Guelph General Hospital, HRTO File #TR-0736-09, OHRC File IIFDTE6XLQ8B

2. Lemieux v. Howe, HRTO File 2009-02128-1

3. Lemieux v. Rowan, HRTO File 2010-05545-1

4. Lemieux v. Ontario Nurses' Association, HRTO File 2010-05953-1

13The applicant submits that all of these Decisions should be removed from the website because of the applicant's right to privacy and her right to accurate reporting of her information regarding her employment, her health and other personal matters. In a subsequent communication with the Tribunal, the applicant sought to expand this Request to include a request that we take steps to remove these Decisions from any third party libraries or websites which may have made them available.

14The respondents have not yet responded to this Request. The Tribunal has also not sought submissions from any of the other affected parties in the other proceedings above, or any of the third parties that may be affected by such a Request.

15The Request is dismissed. It is fundamental to our system of justice that Tribunal proceedings are open and accessible to the public: see C.M. v. York Region District School Board, 2009 HRTO 735 at paras. 19-22. A key element of that openness is that the decisions of judicial and quasi-judicial decision makers are made available to the public. The applicant has articulated no compelling reason in her submissions to undermine this fundamental value.

16I note that when the applicant filed her Application she made a declaration that "I understand that information about my Application can become public at a hearing, in a written decision, or in other ways determined by Tribunal policies". The Application also clearly states "Do not sign your Application until you are sure you understand what you are declaring here". The applicant knew or ought to have known about the public nature of the Tribunal's process.

17Some of the Decisions the applicant has referred to above were filed pursuant to the Code's transitional provisions and the remainder were filed pursuant to s.34 of the Code. The Tribunal's Rules of Procedure for application filed under Part IV of the Code state that:

3.10 The Tribunal's hearings are open to the public, except when the Tribunal determines otherwise.

3.11 The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so

3.12 All written decisions of the Tribunal are available to the public. (emphasis added)

18These same Rules are reproduced in Rules 5.10, 5.11 and 5.12 of the Tribunal's Transitional Rules.

19The Tribunal's practice has been to consider any request to close a hearing to the public or to keep the name of a party or other information confidential as an exception to the general principle that the Tribunal's process should be open and transparent in accordance with the fundamental value that the justice system be open and accessible. See TA v. 60 Montclair, 2009 HRTO 369; S. and C. v. Toronto Police Services Board 2008 HRTO 437.

20The applicant's Request is extraordinary. A review of the principles outlined in the cases above indicates clearly that a party's disagreement with the findings of fact made by the Tribunal is not a basis for the anonymization of a Decision much less the retraction of its publication. For all of these reasons, the applicant's Request is denied.