Bartlett v. Hydro One Networks Inc., 2012 HRTO 805

Human Rights Tribunal of Ontario

B E T W E E N:

Tania-Joy Bartlett Applicant

-and-

Hydro One Networks Inc., Stu Smith, Jordan Varley, Kyle Clothier and Tom Stilling Respondents

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle Date: April 20, 2012 Citation: 2012 HRTO 805 Indexed as: Bartlett v. Hydro One Networks Inc.

WRITTEN SUBMISSIONS BY

Tania-Joy Bartlett, Applicant ) No submissions Hydro One Networks, Respondent ) Richard Charney, Counsel Stu Smith, Jordan Varley, Kyle Clothier and Tom Stilling, Respondents ) No submissions Canadian Union of Skilled Workers, Intervenor ) No submissions

1On January 30, 2012, the Tribunal issued an Interim Decision in this Application, Bartlett v. Hydro One Networks 2012 HRTIO 212, regarding a Request for Reconsideration of a previous Interim Decision in this Application, Bartlett v. Hydro One 2010 HRTO 2502 and regarding several Requests for Order During Proceedings (RFOPs). The respondent Hydro One Networks Inc. (HONI) has asked the Tribunal to reconsider its Reconsideration Decision regarding HONI’s request to add the Intervenor union Canadian Union of Skilled Workers (CUSW) as a respondent to the Application and to reconsider its decision regarding certain RFOPs, namely, its request to add the president of CUSW as a personal respondent to the Application and its request for production of Minutes of Settlement. Its submissions also indicate that it seeks reconsideration of the decision insofar as it does not “apply the law of champerty in respect of the conduct of” the president of CUSW and CUSW.

2For clarity, in its Reply to the applicant’s Response to its RFOP seeking to have the president of CUSW added as a party, the respondent submitted that the president of CUSW had “de facto control over all parties to the proceeding same and except HONI” and argued that this was “akin to champerty”. There is no separate Tribunal decision regarding the respondent’s allegation of champerty, and its inclusion in the Request for Reconsideration appears to be a statement of disagreement with the Tribunal’s decision.

background

3The Tribunal’s Decision dismissed the respondent HONI’s Request for Reconsideration regarding its request to add CUSW as a respondent, and denied its RFOPs wherein it sought to add the president of CUSW as a respondent and wherein it sought an order for production to the respondent of Minutes of Settlement executed in resolution of an internal union complaint.

THE REQUEST FOR RECONSIDERATION

4The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. The decision is in conflict with established case laws or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

b. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

5In particular, the respondent submitted that the Tribunal’s conclusions are “unreasonable and failed to ensure procedural fairness”. The respondent submitted that the Tribunal:

a) Failed to reasonably apply applicable law;

b) Fettered its discretion;

c) Conflated issues of fact and law;

d) Applied differential standards of conduct to the Corporate Respondent HONI, and the Applicant’s bargaining agent, CUSW, absent any legal or factual foundation for doing so; and

e) Applied different standards of conduct to the Corporate Respondent, HONI, and CUSW President, Mulhall, absent any legal or factual foundation for doing so.

6The respondent further stated that in support of its Request for Reconsideration, it “pleads and relies upon the submissions herein, the entirety of its previous submissions to the Tribunal, as well as the Decision”.

7In its submissions, the respondent submitted that the test for adding respondents not named by the applicant is set out in Palacios v. Builders Warehouse Inc., 2010 HRTO 606 (“Palacios”), which indicates that a “very strong connection between the acts complained of and a proposed respondent must exist”. The respondent submitted that jurisprudence establishes that the threshold for a prima facie case is low. The respondent submitted that the Tribunal’s “conclusions as to the absence of a sufficient nexus between the allegations of the Applicant and the proposed Respondents…are unreasonable” and that the Tribunal “failed to correctly apply the established test for a prima facie case”.

8The respondent also submitted that the Tribunal “acted unreasonably in failing to take account of the statutory prohibitions on employer involvement in the administration of a trade union…despite clear documentary evidence of a parallel internal union dispute involving allegations which mirror those presently before the Tribunal”. It argued that its “duties under the LRA and the Code are in prima facie conflict” and that this makes “paramount” the “necessity for cross-examination and/or full and complete disclosure obligations”. It submitted that the Tribunal decision has denied it of evidence going to “credibility, animus and the bona fides” of the Application against HONI. It submitted that the Tribunal “unreasonably fettered its discretion by failing to consider the conflicting requirements of the Code and the LRA in the circumstances before it” and argued that the Decision “ought to be reconsidered and CUSW and/or Mulhall added as parties with all attendant production obligations and potential liabilities that accompany their material involvement”.

9Further, the respondent submitted that the Tribunal erred and conflated issues of law and fact. It argued that as the Ontario Labour Relations Board documentary record and decision indicate that the “CUSW and/or Mulhall were, along with HONI, party to the investigation of the Applicant’s complaints in 2009”, and as the Tribunal has found that a prima facie case has been made out against HONI, the Tribunal must hold CUSW and/or Mulhall “to that same standard of prima facie prohibited conduct”. It submitted that the Tribunal applied a “differential standard of prima facie conduct” to HONI and to Mulhall and CUSW, “absent any legal or factual foundation for doing so” and that this was an error of law.

10The respondent also submitted that the Tribunal “Fettered its discretion by focusing inquiry on the fact that the Applicant has alleged that only HONI breached the Code, not CUSW and/or Mulhall”. It argued that CUSW and/or Mulhall are paying the Applicant’s legal fees and that it is therefore “unreasonable for the Tribunal to assign paramouncy to the Applicant’s choice of respondent, absent consideration for the context from which that ‘choice’ flowed”. It argued that this is “both champerty and maintenance” and that the Tribunal erred further “by failing to apply the applicable law, inclusive of section 23(1) of the Statutory Powers Procedure Act”. It also submitted that it was “unreasonable to decline to conclude that the present litigation is barred and a gross abuse of process”.

11Finally, the Respondent made submissions regarding the Tribunal’s decision not to order the production of the above-noted Minutes of Settlement, originally requested by the respondent in an RFOP. It submitted that the Tribunal breached the principles of procedural fairness and natural justice by not giving it any opportunity to review the document and make submissions regarding its relevance and admissibility.

12Finally, the respondent stated that it “expressly reserves the right to file amended submissions in support of its Request for Reconsideration and/or file an Application for judicial review upon receipt of a penultimate decision on the merits of the Application”.

DECISION

13Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

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.

14The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

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.

15The 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.

16As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

17Part of the respondent’s Request for Reconsideration is in fact a Request for Reconsideration of a Reconsideration. The respondent has already had the benefit of a request for reconsideration of Bartlett v. Hydro One Networks 2010 HRTO 2502 in that portion of Bartlett v. Hydro One Networks 2012 HRTO 212 which dealt with the respondent’s Request for Reconsideration, with reasons being provided in paragraphs 64 through 69. According to Rule 26.7.1 of the Tribunal’s Rules of Procedure:

26.7.1 Where a Request for Reconsideration has been determined, the Tribunal will not consider a subsequent Request for Reconsideration of the same decision, absent exceptional circumstances. The Tribunal need not give reasons for a decision not to consider a subsequent Request.

18There are no exceptional circumstances warranting a reconsideration of the Reconsideration Decision and it is appropriate to decline to consider this subsequent Request.

19In its Request for Reconsideration, the respondent HONI seeks reconsideration of the Tribunal decision not to order production of Minutes of Settlement between the applicant, CUSW and others.

20Rule 26.1 of the Tribunal’s Rules of Procedure provides that a party may request reconsideration of a final decision of the Tribunal. A decision will only be considered a final decision where the decision has the effect of finally determining the substance of the dispute or a central element of the dispute between the parties. See for example Ontario Human Rights Commission v. Ontario Teachers’ Federation, 1994 CanLII 10578 (ON CTGD), 19 O.R. (3d) 371.

21In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal considered at length the question of when a decision should be considered final for the purposes of the reconsideration power. After carefully considering the policy issues and the relevant authorities the Tribunal concluded:

As a general principle, having regard to the approach taken in other forums as well as the above discussion, it is reasonable to view a “final decision” as one that disposes of some or all of the central issues in the complaint as between the parties. This general principle will take on a more precise shape as the Tribunal applies it to cases before it.

22Having considered these authorities and the context in which the issue arises, I have concluded that the Tribunal’s decision regarding the production of a document is not a final one. I find that it does not dispose of the entirety of the complaint. Not being a final decision, it cannot, at this time, be the subject of a reconsideration request. See Galuego v. Kensington Health Centre, 2009 HRTO 49. For these reasons the Request for Reconsideration of the Tribunal’s decision not to order production of certain Minutes of Settlement is dismissed.

23The respondent HONI also seeks reconsideration of the decision to deny its Request for an Order During Proceedings wherein it sought to have the president of CUSW, Mr. Mulhall, named as a personal respondent. Without finding that Bartlett v. Hydro One Networks 2012 HRTO 212 disposes of some of the central issues in the Application, even if reconsideration is available here, I do not find that HONI has met the burden of establishing any of the threshold criteria justifying reconsideration.

24As indicated above, the respondent relies on Rule 26.5(c) and (d).

25In its RFOP seeking to add the union president as a respondent, HONI submitted that the union president condoned or contributed to the actions of the personal respondents and must be held accountable as a party. In its Request for Reconsideration, HONI again argues that a strong connection exists between the applicant’s allegations and the actions of Mr. Mulhall and the CUSW. As noted above, the Tribunal has already provided its decision regarding reconsideration of HONI’s attempt to have CUSW named as a respondent. With regard to its Request as it pertains to Mr. Mulhall, HONI essentially repeats arguments made to the Tribunal.

26In its RFOP seeking to add the union president as a respondent, HONI submitted that as the Labour Relations Act (“LRA”) prohibits it from becoming involved in “the administration of a trade union and/or its internal investigations”, it should be given the opportunity for cross-examination of Mr. Mulhall. In its Request for Reconsideration, it argues that its duties under the LRA and its duties under the Code are in conflict and that this necessitates “the opportunity for cross-examination and/or full and complete disclosure obligations”. Again, in the Request for Reconsideration, HONI is essentially repeating arguments already made to the Tribunal.

27In its Reply to CUSW’s response to its RFOP seeking to have Mr. Mulhall named as a respondent, HONI argued that the fact that the union was paying legal fees for the applicant and for the personal respondents, and that Mr. Mulhall has “de facto control over all parties to the proceeding save and except HONI”, was “akin to champerty”. In its Request for Reconsideration, HONI argues that the Tribunal has fettered its discretion in “focusing its inquiry on the fact that the Applicant has alleged that only HONI breached the Code”, and that the Tribunal should have found champerty and maintenance and that it failed “to apply the applicable law, inclusive of section 23(1) of the Statutory Powers Procedure Act”. It is clear that HONI does not agree with the portion of the Tribunal’s decision which denied its RFOP seeking to have Mr. Mulhall named as a personal respondent, but its disagreement with this ruling is not a basis for reconsideration.

28In Sigrist and Carson, above, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

29The Tribunal also stated in Sigrist and Carson that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the respondent clearly disagrees with the conclusions of the Tribunal, I am satisfied that its submissions on this Request do not establish that the Tribunal’s Interim Decision conflicts with established jurisprudence within the meaning of Rule 26.5(c). I am not persuaded the reconsideration involves a matter of general or public importance.

30Though the respondent has indicated on Form 20, the form by which parties make a Request for Reconsideration, that “other factors exist that outweigh the public interest in the finality of Tribunal decisions”, I am not persuaded that such factors exist.

31In sum, I find that the respondent has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.