Johnson v. Alcohol and Gaming Commission of Ontario, 2013 HRTO 1106

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Coral Johnson Applicant

-and-

Alcohol and Gaming Commission of Ontario, Heather MacLean, Jean Major, David Chiacchia, Michael Falconi, Sukhi Grewal, Laura Frees, Suchitra Hari and Teresa Tedesco Respondents

-and-

Ontario Public Service Employees’ Union Intervenor

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson Date: June 21, 2013 Citation: 2013 HRTO 1106 Indexed as: Johnson v. Alcohol and Gaming Commission of Ontario

WRITTEN SUBMISSIONS

Coral Johnson, Applicant

John Villella, Representative

Introduction

1This Application was filed on April 21, 2010, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), and alleges discrimination in employment on the basis of ethnic origin, disability, sex, and reprisal.

2By Decision dated March 19, 2013, 2013 HRTO 471, following a summary hearing, the Application was dismissed. Some of the allegations in the Application were dismissed on the basis of delay, and other allegations were dismissed on the basis of settlement privilege. The remaining allegations in the Application were dismissed on the basis of having no reasonable prospect of success within the meaning of Rule 19A of the Tribunal’s Rules of Procedure.

3On April 18, 2013, the applicant delivered and filed a Request for Reconsideration.

DECISION

4Under s. 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 the 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.

5The 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 Reconsideration 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.

6The 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.

7As 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.

8In the present case, the applicant relies on subsections (a) and (d) of Rule 26.5, above.

9In her Request for Reconsideration, the applicant takes issue with para. 51 of the Tribunal’s Decision, where the Tribunal stated as follows:

In my view, in the context of the ongoing litigation between the parties, and, in particular, the applicant’s indication at the OLRB hearing that a third application was contemplated in relation to the content of the June 29, 2009 fax, the day after it was delivered to Mr. Major, any allegation that a failure to respond to the fax is discriminatory has no reasonable prospect of success. Accordingly, this allegation is dismissed.

10More particularly, the applicant submits that the Ontario Labour Relations Board (“OLRB”) decision referred to by the Tribunal, above, does not state anything or even mention that the applicant ever raised that a facsimile transmission was sent to Mr. Major, nor about a failure to respond. The applicant submits that to issue a decision to dismiss based on statements that do not accurately reflect the OLRB decision referred to is a denial of natural justice.

11To be clear, as set out at para. 50 of the Tribunal’s Decision, the OLRB decision confirms that the applicant was contemplating filing a third application against the organizational respondent in relation to information conveyed by an OLRB mediator attempting to settle her applications under the Occupational Health and Safety Act, R.S.O. 1990, c. O-1. The Tribunal did not state that the OLRB decision stated or mentioned anything about a facsimile transmission being sent to Mr. Major, or about a failure to respond to a facsimile transmission, as appears to be asserted by the applicant. Rather, at para. 49 of the Tribunal’s Decision, the Tribunal referred to a fax dated June 29, 2009, from the applicant’s representative to Mr. Major, alleging discrimination at an OLRB mediation on April 21, 2009, and the applicant’s submission that a response to the letter was never received.

12In the circumstances, I do not accept the applicant’s submission that the Tribunal issued a decision based on statements that do not accurately reflect the OLRB decision referred to by the Tribunal. In my view, the applicant has not established that there was any denial of natural justice, as alleged, or that any of the other threshold criteria justifying reconsideration have been met with respect to the Tribunal’s determination at para. 51 of the Decision.

13In her Request for Reconsideration, the applicant also argues that the privileged contents of mediation meetings involving OLRB mediators have been raised in other proceedings. The applicant argues that she should be permitted to do the same, and that the Tribunal’s Decision should be set aside.

14With respect to these latter submissions related to settlement privilege, the applicant is essentially repeating arguments already made before the Tribunal in this matter. As indicated in Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34, a request for reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their 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 applicant’s submissions concerning settlement privilege in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

15With respect to the criteria relied upon in the applicant’s Request for Reconsideration, I find that the applicant has not identified any new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier, nor has the applicant established that any other factors exist that outweigh the public interest in the finality of Tribunal decisions. I also find that the applicant has not established that any of the other threshold criteria justifying reconsideration have been met.

16In 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.