HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Denis Ayotte
Applicant
-and-
The City of Ottawa (OC Transpo), Troy Charter, Alain Mercier, Laurie Blackstone, Marg White, Jackie Lepors and Amalgamated Transit Union, Local 279
Respondents
RECONSIDERATION DECISION
Adjudicator: Naomi Overend
Indexed as: Ayotte v. Ottawa (City)
[1] The applicant, formerly a bus driver with OC Transpo, filed an Application on March 28, 2011, alleging discrimination in employment on the basis of ancestry, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
[2] On August 3, 2011, the Tribunal issued a Decision in which I dismissed the Application because I found that it fell within the exclusive jurisdiction of the Canadian Human Rights Commission. Specifically, I found that the issues in dispute are within exclusive federal jurisdiction because OC Transpo, with whom the applicant was employed, regularly engages in inter-provincial transportation (i.e., OC Transpo has routes that cross over into Quebec).
[3] On August 29, 2011, the applicant filed a Request for Reconsideration of that Decision and submissions in support of his Request. The respondents were directed to provide written submissions in response to the Request, and the applicant given the opportunity to respond to those submissions. Both the respondents and the applicant sent in further submissions.
REQUEST FOR RECONSIDERATION
[4] Section 45.7 Code allows any party to a proceeding before the Tribunal to request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.
[5] In his Request the applicant checked the box that indicated that he had new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier. The applicant submitted documents he recently obtained through a freedom of information search, received on August 19, 2011 (i.e., after the date of the Decision). These documents primarily appear to deal with the respective merits of his case, which is not an appropriate issue for the Tribunal as I did not dismiss his Application on the basis that it had no merit.
[6] However, one of the documents submitted by the applicant indicates that effective April 20, 2010, he was removed from his position as bus driver and moved to a “city wide position.” This is relevant because my Decision dismissed his case on the basis that this Tribunal did not have the jurisdiction to deal with the Application, as he was an employed in a federally-regulated position.
[7] At para. 11 and 12 of their submissions to the Request for Reconsideration, the respondents state the following:
Mr. Ayotte appears to rely on the fact that he was removed from his duties as a bus operator as evidence that the matter is provincially regulated. The Respondents submits that what in fact occurred is that Mr. Ayotte’s [sic] was vacated from his substantive position as a bus driver (i.e. he no longer “owned” a specific full-time equivalent (FTE) position) while the City searched for other positions for him through its Priority Placement process. However, as Mr. Ayotte was never placed into another position whether federally or provincially regulated, he remained governed by his initial contract and continued to be regulated federally as are all employees of OC Transpo.
The Respondents submits [sic] that this situation is not unusual or unique to Mr. Ayotte, and indeed in the federally regulated collective agreement between the City of Ottawa and ATU Local 279, specific provisions have been negotiated with respect to the possibility of an employee moving from an OC Transpo position to another in the City … However, as noted above this situation did not apply to Mr. Ayotte and the information he has provided can only serve to demonstrate he remained an employee, albeit without a specific position, of OC Transpo.
[8] The applicant’s submissions in response appear to argue that because he was laid off in May 2010 (as evidenced by the issuance of an ROE), he ceased being represented by the ATU, or being federally-regulated. It is not clear why this is relevant as the allegations in his Application relate to his interactions with his employer and his union, not to the time when he became, to use his words a “free agent.”
[9] The applicant has provided no basis on which I might exercise my discretion to overturn my Decision on this matter. Based on the respondents’ submissions, the applicant remained a federally-regulated employee during the relevant period. Accordingly, the Request for Reconsideration is denied.
Dated at Toronto, this 13^th^ day of January, 2012.
“Signed by”
Naomi Overend
Vice-chair