HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abebe Tilahun

Applicant

-and-

TriCo Group Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Sheri Price

Date: October 25, 2013

Citation: 2013 HRTO 1799

Indexed as: Tilahun v. TriCo Group Inc.

1On June 11, 2013, following a summary hearing, the Tribunal issued a Decision dismissing the Application in this matter on the basis of its finding that the Application had no reasonable prospect of success: 2013 HRTO 1042. The summary hearing ended up taking place over the course of three half-day sessions (on November 29, December 6, and December 17, 2012) to ensure that the parties had a full opportunity to make submissions on all of the issues to be determined.

2On July 5, 1013, the applicant filed a Request for Reconsideration, pursuant to s. 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (‘the Code”).

3Section 45.7 of the Code provides that the Tribunal may reconsider its decisions “in accordance with its Rules”. Rule 26 of the Tribunal’s Rules of Procedure is the Rule governing requests for reconsideration. It states, in relevant part:

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.

4The Tribunal has also issued a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. The Practice Direction 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.

[Emphasis added.]

5In this case, the applicant seeks reconsideration of the Tribunal’s decision pursuant to Rule 26.5(c), on the basis that the decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. However, in his Request, the applicant has not identified any established jurisprudence or Tribunal procedure with which the Tribunal’s June 2013 decision is allegedly in conflict. Accordingly, there is no basis for the Tribunal to reconsider the decision pursuant to Rule 26.5(c).

6It is clear from the reconsideration request that the applicant strongly disagrees with the Tribunal’s conclusion that the applicant had no reasonable prospect of proving that the respondent discriminated against him because of his race or reprised against him within the meaning of the Code. In his Request, the applicant reiterates arguments that he made during the summary hearing that he could prove that the mistreatment he allegedly experienced as an employee of the respondent was linked to his race and that the respondent reprised against him. However, the fact that the applicant disagrees with the Tribunal’s decision is not a basis for reconsideration. Nor is reconsideration an opportunity for the applicant to appeal the Tribunal’s decision or to reargue his case. As noted in the Tribunal’s Practice Direction on Reconsideration, the Tribunal will only reconsider a decision where it is satisfied that there are compelling and extraordinary circumstances for doing so. In this case, the applicant has not identified any compelling and extraordinary circumstances that might justify reconsideration of the Tribunal’s decision in this matter. Accordingly, there is no basis upon which to reconsider the decision. The Request for Reconsideration must be denied accordingly.

7That said, and while attempting not to repeat the analysis and/or findings in the decision, I do wish to address a couple of points raised by the applicant in his reconsideration request.

8In addition to reiterating arguments he made during the summary hearing, in his reconsideration request, the applicant contends that the Tribunal’s decision is flawed because it “missed” certain “key elements”. In particular, the applicant submits that:

1. The decision did not address a June 11, 2011 incident in which the applicant’s supervisor allegedly singled the applicant out, of all the line captains, by saying the “f” word to the applicant, when all of the lines were down and waiting for product to arrive. If the Tribunal had addressed the June 11, 2011 incident, it would have found the applicant’s 2007 to 2009 allegations timely, the applicant submits;

2. The decision did not account for a March 15, 2007 incident in which the manager, Mr. Paul, allegedly gave the applicant a warning for failing to meet quota, which warning was inconsistent with established disciplinary practice, undeserved and discriminatory;

3. The decision incorrectly stated that the applicant was promoted to a line captain position in 2007. The applicant submits that he was actually promoted to the line captain position in 2005;

4. The decision did not address the allegation that the 2011 promotion of “Mr. Liam” by the respondent was discriminatory; and

5. The decision did not consider s. 23 of the Code in determining whether the failure to promote the applicant above the position of line captain was discriminatory.

9With respect, I cannot agree with the applicant’s submissions with respect to the above-noted points.

10With respect to the alleged incident of June 11, 2011, I did address this incident at para. 34 and 37 of the decision. However, the decision refers to the alleged incident occurring on June 27, 2011, not June 11, 2011, because that is what the applicant stated during the summary hearing, as well as in the documents he submitted in advance of the summary hearing. In any event, whether the alleged incident occurred on June 11 or 27, 2011 is immaterial, as it does not change the analysis in the decision.

11The applicant seems to suggest that, had I taken the June 2011 incident into account, I would have concluded that the 2007 to 2009 incidents were timely. With respect, I cannot agree with this argument. At para. 24 of the decision, I found that the 2007 to 2009 incidents were untimely because of the 16-month gap between the last alleged discriminatory incident in 2009, on October 7, 2009, and the next alleged discriminatory incident on February 16, 2011. The alleged incident of June 2011 does not come into play in that analysis.

12It is true that the decision did not address an allegation that the applicant received a discriminatory disciplinary warning in March 2007. This is because the applicant did not raise such warning in his Application or in the documents he submitted in advance of the summary hearing. In those documents, the applicant complains about warnings he received on September 13, 2007, December 9, 2011 and May 22, 2012, not in March 2007. The respondent submitted a March 2007 warning from the applicant’s personnel file in advance of the second day of the summary hearing (in support of its argument that the applicant knew what the respondent’s expectations were with respect to production quotas) and so the applicant did address the warning in his reply submissions. However, the March 2007 warning was not among the alleged incidents of discrimination raised by the applicant. In any event, even if the applicant’s allegations had included the allegation that the respondent discriminated against him by giving him a warning in March 2007, it would not have changed the decision. This is because I would have dismissed the March 2007 allegation as untimely for the same reasons that I found the other 2007 allegations to be untimely (paras. 19 to 30). Moreover, even if the applicant is correct in his assertion that the March 2007 warning was unfair, the applicant has not alleged any facts that, if true, would allow the Tribunal to conclude that the March 2007 warning was linked, in whole or in part, to the applicant’s race. Accordingly, I would have found that the applicant had no reasonable prospect of proving that the warning was discriminatory.

13Moreover, even if the decision incorrectly stated, at para. 49, that the applicant was promoted to a line captain position in 2007 (when it was really 2005), this does not alter the Tribunal’s analysis with respect to the applicant’s chances of success in proving that the failure to promote him to a supervisory or managerial position was discriminatory and is not a basis to reconsider the decision.

14As for the submission that the decision did not address the allegation that the 2011 promotion of “Mr. Liam” was discriminatory, I draw the applicant’s attention to para. 52 to 53 of the decision, where I did address this allegation, albeit in respect of “Mr. Lamb”, which is what I understood the supervisor’s name to be, based on the applicant’s oral submissions. (This allegation was not included in the written Application and was only raised by the applicant orally at a fairly late stage in the summary hearing). Again, the fact that I misheard the supervisor’s name does not affect the analysis and is not a basis to reconsider the decision.

15As for s. 23 of the Code, I do not see how it has any application to the case at hand. Section 23(1) of the Code, which is the section relied upon by the applicant, states that it is discriminatory for respondents to publish job advertisements indicating that qualification for a job is linked to a prohibited ground of discrimination under the Code. There is no allegation about such job advertisements in this case. Nor are there any allegations that the respondent used a job application form or made inquiries that indicated that qualification for a job was linked to a prohibited ground of discrimination under the Code (s. 23(2)). Accordingly, I cannot agree with the applicant that s. 23 of the Code is the "missing link" in the decision.

16In his reconsideration request, the applicant also addresses the March 2009 warning he received for failing to wear his safety shoes (para. 58 of the decision). While indicating that he accepts such warning, the applicant nonetheless asks in his reconsideration request why others were allowed to borrow toe safety covers but not him.

17The applicant did not mention anything about not being able to borrow toe safety covers during the summary hearing. However, even if he had, it would not have changed the outcome of the summary hearing. The alleged fact that some unidentified “others” were permitted to borrow toe safety covers while the applicant was given a written warning might establish that the warning was unfair. However, the applicant has not alleged any facts that, if true, would allow the Tribunal to find that such unfair treatment was because of the applicant’s race, in whole or in part. In order for a discrimination claim to have a reasonable prospect of success, there must be a basis beyond mere speculation or bald assertions that the unfair treatment was because of one of the grounds alleged in the Code: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17. In this case, the applicant’s factual allegations, even if true, do not provide a basis for a finding of racial discrimination by the respondent. Rather, they are in the nature of speculation and assertion.

18The applicant also states in his reconsideration request that the respondent’s investigation into the circumstances giving rise to the applicant’s dismissal was flawed and discriminatory because it was not impartial, it did not take the applicant’s version of events or the “unresolved poisoned atmosphere” into account, and it condoned the manager’s misconduct (when he allegedly threatened to physically remove the applicant from the plant) while holding the applicant to a “zero tolerance” standard. There are a couple of problems with the applicant’s submissions in this regard.

19First, it seems to me that the applicant is attempting to supplement the submissions he made during the summary hearing by making additional arguments on reconsideration. However, reconsideration is not an opportunity for the applicant to re-argue his case. During the summary hearing, the applicant complained that the respondent did not talk to the applicant before deciding to terminate his employment and that its investigation into the events of May 24, 2012 was one-sided. However, the applicant did not make the more detailed submissions that are contained in his reconsideration request. In any event, even if these submissions had been made during the summary hearing, it would not have changed the outcome. In my view, the respondent employer's tolerance of the manager threatening to remove an employee from the workplace after he had refused to leave as instructed, while terminating the employee for refusing to leave, is not a basis upon which the Tribunal could find that the respondent discriminated against the applicant because of his race. Moreover, the Tribunal does not have the power to deal with the applicant’s general allegation that the respondent’s investigation into the circumstances giving rise to his dismissal was not impartial and/or failed to adequately take the applicant’s version of events into account, in the absence of any alleged facts to link those things to the applicant’s race. As for the allegation that the respondent’s investigation failed to take the “unresolved poisoned atmosphere” into account, there is no allegation in this case that the applicant complained to the respondent, prior to his dismissal, about potential human rights violations. Accordingly, there is no basis upon which to find that the alleged failure to take a “poisoned atmosphere” into account when deciding whether to terminate the applicant’s employment following the events of May 24, 2012 constituted an infringement of the Code.

20Finally, I wish to address the applicant’s statement in his reconsideration request that despite the fact that the Tribunal had approved his request, I did not allow him to record the summary hearing. The applicant is incorrect in stating that the Tribunal approved his October 16, 2012 request to record the hearing. On the contrary, in an email dated October 18, 2012, the Tribunal provided the applicant with its “Practice Direction on Recording Hearings” and advised the applicant to contact the Registrar as soon as possible if he required accommodation in that regard. The applicant did not contact the Registrar following the October 18, 2012 email to indicate that he needed to record the hearing as a form of accommodation. Nonetheless, I raised the matter with the parties at the outset of the summary hearing on November 26, 2012. At that time, the applicant indicated that he was not pursuing his request to record the hearing and the summary hearing proceeded on that basis. It was not until the summary hearing reconvened on December 6, 2012 that the applicant renewed his request to record the hearing. At that time, the Tribunal’s normal practice, pursuant to Rule 3.7 of its Rules of Procedure and its Practice Direction on Recording Hearings, was not to record hearings, and to only permit them to be recorded at the Tribunal’s own discretion, particularly where necessary in order to accommodate a Code-related need. Accordingly, I asked the applicant on December 6, 2012 why he wanted to record the hearing. The applicant did not indicate that he had a Code-related or other need to record the hearing. Rather, he indicated that he just wanted to record the hearing to document it. In my view, the general interest in documenting the proceeding was not a sufficient reason to exercise my discretion to allow the applicant to make a personal recording of the proceeding. Accordingly, I denied the applicant’s request. He did not pursue the issue. In any event, it does not seem that the recording issue has any impact on the reconsideration request. Other than referring very briefly to the fact that he was not permitted to record the hearing, the applicant does not argue that permitting him to record the hearing would have affected the outcome of the summary hearing, nor do I have any basis to believe there was any procedural unfairness arising from my decision in this respect. This, also, is not a basis to reconsider the Tribunal’s decision.

21In sum, I do understand that the applicant strongly disagrees with the Tribunal’s decision regarding his chances of success in proving that the respondent infringed his rights under the Code in the manner alleged in the Application. However, for the reasons set out above, the applicant has not satisfied the Tribunal that the any of the criteria that might justify reconsideration pursuant to Rule 26.5 exist in this case. Accordingly, the applicant’s Request for Reconsideration must be denied.

ORDER

22The Request for Reconsideration is denied.