Weihua Shi v. Holcim (Canada) Inc. and Anna Maccani, 2012 HRTO 934

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Weihua Shi

Applicant

-and-

Holcim (Canada) Inc. and Anna Maccani

Respondent

RECONSIDERATION DECISION

Adjudicator: Alison Renton

Date: May 9, 2012

Citation: 2012 HRTO 934

Indexed as: Shi v. Holcim (Canada)

WRITTEN SUBMISSIONS

Weihua Shi, Applicant ) Self-represented )

1On February 28, 2012, the Tribunal issued its Decision in this Application, 2011 HRTO 2276, dismissing the Application (“the Decision”). The applicant has asked the Tribunal to reconsider its Decision by filing a Request for Reconsideration under Rule 26 (“the Request”). The Tribunal has not asked the respondents to respond to the Request.

BACKGROUND

2The applicant filed her Application alleging discrimination in employment on the grounds of family status, marital status and reprisal. She was a senior tax analyst with the respondent company and, at the time of filing her Application, had a daughter who was nine years old. Briefly, she alleged that in December 2009, the personal respondent held a meeting during which she said that for a two week period, everyone, including the applicant, would be required to work overtime and the weekend, with no days off. The applicant alleges that she told the personal respondent that she could not guarantee that she would be able to work all that overtime at work because of her family and marital status, although she could work for them from home. The applicant alleges that the personal respondent denied this suggestion stating that there were no exceptions to the in-person overtime requirement. The applicant alleges that the personal respondent was rude and used profanities.

3From December 2009 until January 15, 2010, the applicant unsuccessfully attempted to gain some flexibility over the location of where she worked this overtime and raised concerns both in person and in writing. On January 15, 2010 the applicant’s employment was terminated. She was told that she was not a good fit for the respondent company and it was downsizing. The applicant alleges that ten days after her termination, a job posting for the position she held was posted on a job opportunities website.

4Along with her Application, the applicant also filed a Request to Expedite, which was dismissed by the Tribunal in an Interim Decision (2010 HRTO 649).

5The respondents filed a joint Response in which they denied the applicant’s allegations of discrimination. Further, they requested that the Tribunal dismiss the Application pursuant to section 45.1 of the Code because another proceeding, a complaint the applicant filed under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”), had dealt with the substance of the Application.

6The Application was scheduled for mediation on November 22, 2010 by Notice of Mediation dated October 15, 2010. On the Notice of Mediation, the Tribunal noted the respondents’ request to dismiss the Application pursuant to section 45.1 remained outstanding and stated, “The HRTO will consider the request following the mediation if no settlement is reached. The HRTO may issue directions or request further submissions, where appropriate”. Subsequent to the issuance of the Notice of Mediation, the applicant withdrew her consent to mediate and requested that the Application be scheduled for hearing.

7A Case Assessment Direction (“CAD”) was issued dated December 9, 2010. In the December 2010 CAD, the Tribunal noted that while the applicant sent in further material addressing the section 45.1 issue, since the applicant had not indicated that the section 45.1 issue could be dealt with by written submissions, the Tribunal’s Registrar would schedule a one-hour conference call hearing to consider whether the Application should be dismissed as a result of the Employment Standards proceeding. The Tribunal reproduced the language of section 45.1 of the Code and advised that section 43(2) of the Code provides that the Tribunal shall not finally dispose of an Application without affording the parties an opportunity to make oral submissions.

8Further, in this CAD, the Tribunal noted, at para. 5, that it sent correspondence to the parties dated November 12, 2010 which stated:

The Human Rights Tribunal of Ontario is in receipt of the applicant’s request to cancel any attempts to schedule mediation and to proceed directly to a hearing. There is an outstanding s. 45.1 issue relating to the applicant’s Employment Standards Act claim. This issue must be dealt with prior to a hearing on the merits being scheduled. Parties are therefore required to advise the HRTO by November 19, 2010 if they wish to deal with the matter in writing or via a conference call. Parties are reminded to copy each other on all correspondence sent to the HRTO. Instructions for filing additional submissions on the issue will be provided once parties have indicated their preferred method of dealing with the issue. [emphasis added]

9The conference call hearing was scheduled for March 2, 2011 pursuant to a Notice of Conference Call dated February 4, 2011. The Notice of Conference Call specifically identified the subject matter of the conference call as being that identified in the December 2010 CAD.

10The applicant submitted further submissions dated February 10, 2011 to the Tribunal. On these submissions, she wrote, “However, it is not clear what is/are the purpose(s) of the conference call and no details as to what to be discussed during the conference call were provided in the Notice”. She requested the Tribunal to clarify the purpose and provide details about what would be discussed during the conference call. She wrote, “If the purpose of the conference call scheduled as per the Notice is to discuss the S. 45.1 issue as mentioned in the Direction, the Applicant sent the attached fax dated December 10, 2010 to the Tribunal stating the reason provided in the Direction for scheduling a conference call is NOT correct and in that fax, the Applicant RESTATED that the preferred method of dealing with the S. 45.1 issue is in writing. The Applicant’s position in respect of whether the S. 45.1 issue to be addressed in writing or by conference call has NOT been changed”.

11The Tribunal issued another Case Assessment Direction dated March 10, 2011. In this CAD, the Tribunal stated that it would consider the parties’ written submissions and issue a written decision in due course. It noted, at para. 1:

This file is scheduled for a conference call hearing on March 21, 2011 pursuant to a Case Assessment Direction (“CAD”) dated December 9, 200 on the issue of whether the Application can continue to proceed under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) in light of the complaint the applicant filed about her termination under the Employment Standards Act, 2000.

12Various Case Assessment Directions (“CAD”) dated August 19, 2011, September 13, 2011, and November 9, 2011 were issued to the parties by the Tribunal in relation to the ongoing ESA complaint which was initially determined by an Employment Standards Officer, then appealed to the Ontario Labour Relations Board (“OLRB”) for determination. The Tribunal requested status updates as well as submissions from the parties about the OLRB proceedings and noted that its determination was being based upon the parties’ written submissions. Initially, the OLRB dismissed the applicant’s ESA complaint, then allowed her request for reconsideration and allowed her ESA complaint in a decision dated August 26, 2011 (Shi v. Holcim (Canada) Inc., 2011 CanLII 52904 (ON LRB). The respondent applied to the OLRB for reconsideration, which was denied in a decision dated November 10, 2011 (Shi v. Holcim (Canada) Inc., 2011 CanLII 71807 (ON LRB). Further, the Tribunal requested that the parties address the impact of a recent Supreme Court of Canada decision, British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, on the section 45.1 issue. The respondents filed submissions in response to the CADs. The applicant did not respond to the CADs or otherwise communicate with the Tribunal.

13The Tribunal issued its decision on February 28, 2012 dismissing the Application pursuant to section 45.1 of the Code. In doing so, at para. 22, the Tribunal stated:

Applying the principles of Figliola to the facts of this case, I find that the Application should be dismissed pursuant to section 45.1. In both the OLRB proceedings and the Application, the applicant raised concerns about the amount of overtime, where she would work that overtime and alleged that she was terminated for raising these concerns. It is clear from both the August 2011 OLRB decision and the November 2011 OLRB decision that the same facts and same issues were at play in those proceedings as raised in the Application. The OLRB heard evidence and rendered decisions which, in my view, appropriately dealt with the substance of the issues in this Application.

THE REQUEST FOR RECONSIDERATION

14In the Request, the applicant submits that the Decision is in conflict with established case law or Tribunal procedure, the proposed reconsideration involves a matter of general or public importance and that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. The applicant attached to her Request approximately 8 typed pages of concerns with which she has with the Decision.

15In a heading called “facts or evidences [sic] that could potentially be determinative of the S. 45.1 decision are not considered in the Tribunal’s Decision”, the applicant submits that the Tribunal disregarded information she provided to it in 2010 and chose instead to refer to some of the respondents’ submissions instead of her submissions. She reproduced her submissions that she alleges the Tribunal did not reference in the Decision.

16The applicant submits that “[t]he facts and evidences [sic] based on which the conclusion of the Tribunal’s Decision was reached contained errors; and the analysis leading to the Tribunal’s dismissal Decision and provided in the Tribunal’s Decision is not convincing, with no supporting facts, evidences [sic] or documents whatsoever”. She alleges that the Tribunal did not properly analyze the situation, but, instead, gathered three statements in para. 22, with no supporting facts or evidence or documents and that the statements are erroneous. She alleges that some facts in the Application were not addressed in the ESA complaint and the OLRB proceedings, such as, but not limited to, the limits on hours of work/eating periods/rest periods, not receiving a performance evaluation, being excluded from training and development opportunities, having her emails monitored excessively, and being subjected to a profanity by the personal respondent. The OLRB, she submits, does not have the jurisdiction to deal with human rights issues. The Decision did not identify the evidence and documentation that was presented before the OLRB.

17The applicant submits that despite the Tribunal sending her the CADs, her position about the section 45.1 issue had already been provided to the Tribunal in her communications with it in 2010. She distinguishes between the cases cited in the Decision at paras. 20 and 21 and her situation, noting that in the decisions cited, the parties had an oral hearing and the human rights issues had been raised in the other proceeding.

18The applicant also submits that the Decision is in conflict with the Tribunal’s procedures. In support of this claim, the applicant asserts that Tribunal cannot dispose of an application without affording the parties an opportunity to make oral submissions. The applicant submits that she agreed that the section 45.1 issue could be addressed in writing, but submitted she told the Tribunal on February 20, 2010 that she “reserved her right to act under S. 6(5)(c) of Statutory Powers Procedures Act (the “SPPA”) to request a[n] oral hearing if any issues other than S. 45.1 were to be discussed in the conference call hearing”. She had prepared herself for the conference call and noted it was the Tribunal and not her that cancelled the conference call. She submits that “a written submission for S. 45.1 should not be recommended by the Tribunal and is not appropriate in dealing with [a] S. 45.1 issue, if the Tribunal attempted to dispose the Applicant’s Application under S. 45.1”. The Tribunal’s “recommendation of written submission on S. 45.1 issue is misleading and caused confusion”, the applicant asserts. Her Application being dismissed without being heard, the applicant submits, caused her significant prejudice.

19Further, the applicant submits that she did not receive “reasonable notice” from the Tribunal. In this regard, she submits that the Tribunal violated section 6(4)(b) of the Statutory Powers Procedures Act, R.S.O. 1990, Chap. S. 22 (“SPPA”) as the Tribunal’s communication of November 12, 2010 did not explain why written submissions rather than an oral hearing was what the Tribunal was recommending. The applicant was not given, she submits, an opportunity to challenge the appropriateness of the Tribunal’s recommendation of dealing with the section 45.1 issue in writing rather than in during an oral hearing.

20Finally, the applicant submits that in a conference call scheduled pursuant to a notice dated February 4, 2011, no purpose of the hearing or details on what was to be discussed at the hearing was provided by the Tribunal. She submits that she sent a fax to the Tribunal on February 10, 2011 seeking clarification for the purpose of the conference call, but the Tribunal merely cancelled the conference call without explanation. This directly led to the section 45.1 issue being addressed in writing and caused the Application to be dismissed without being heard which has prejudiced the applicant.

21The applicant submits that instead of issuing its Decision, the Tribunal ought to have given her the right to decide whether she wanted her Application to proceed, be deferred or withdrawn. She submits that the Tribunal “had and has no legitimate reason(s) to dismiss the Applicant’s Application”.

DECISION

22Under 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.

23The 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.

24The 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.

25As 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.

26The applicant relies on Rule 26.5(a) in support of her Request. While she relies upon “facts and evidences [sic]” that she claims the Tribunal failed to consider in its Decision, she does not provide any new facts or evidence which could not reasonably have been obtained as required by Rule 26.5(a). A reconsideration request is not an opportunity to repeat a party’s earlier submissions or an attempt to reargue its case because one disagrees with the Tribunal’s Decision. See Smith v. Ontario (Education), 2012 HRO 762, Pakarian v. University of Toronto, 2012 HRTO 560.

27The applicant also relies upon Rule 26.5(b) in support of her Request and claims not to have received “reasonable notice” from the Tribunal about her Application proceeding by written submissions rather than as an oral hearing. Based upon the Tribunal’s communications with the applicant, as set out the Background section above, I find that the applicant was specifically given the option of proceeding orally or in writing and chose to proceed in writing. After the Tribunal noted her preference in a CAD, it explained the issue that it was determining, and sent further CADs to the parties, to which the applicant did not respond before the Decision was issued. Had the applicant changed her position and opted for an oral hearing, she had ample opportunity to do so before the Decision was issued, but did not.

28Finally, the applicant relies upon Rule 26.5(c) in support of her Request. In this regard, she again submits that the Tribunal failed to comply with its procedures about oral hearings. She did not provide any jurisprudence with which the Tribunal’s Decision is inconsistent, although she distinguished between the cases cited at paras. 20 and 21 from her own situation. Again, I find that the Tribunal’s processes and procedures were complied with, and as set out in the Background section above, the Tribunal wrote extensively to the applicant and the respondents setting out their options to proceed orally or in writing, identifying the section 45.1 issues that was to be determined, requesting status updates about the OLRB proceedings and then issuing a Decision based upon the materials filed by the parties.

29In sum, I find that the applicant 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.