Tony Vetrano v. Paul Bogle, 2013 HRTO 1819

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tony Vetrano

Applicant

-and-

Paul Bogle

Respondent

RECONSIDERATION DECISION

Adjudicator: Alison Renton

Date: October 29, 2013

Citation: 2013 HRTO 1819

Indexed as: Vetrano v. Bogle

WRITTEN SUBMISSIONS

Tony Vetrano, Applicant

Noel John Hennessy, Representative

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of colour and reprisal. The Application was very brief and contained very little detail about the allegations against the respondent.

2A Case Assessment Direction dated November 13, 2012 (“CAD”) was issued by the Tribunal. In it, the Tribunal determined, on its own initiative, that a summary hearing would be held to determine whether or not the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that it would succeed. The Tribunal stated that no witnesses would give evidence during the summary hearing and that it would be held by conference call. The Tribunal also stated that the respondent was not required to file a Response at that time; however, the respondent did file a Response.

3A Notice of Summary Hearing was issued by the Tribunal dated January 8, 2013, scheduling the summary hearing for March 18, 2013. The applicant’s representative was unavailable this date and the summary hearing was rescheduled for July 10, 2013. The applicant’s representative was also unavailable on that date and the summary hearing was again rescheduled for August 16, 2013, the date upon which it was held by teleconference. Both parties participated.

4In a Decision dated October 7, 2013 (2013 HRTO 1687) (“the Decision”), the Tribunal dismissed the Application as having no reasonable prospect of success.

5The applicant filed a Request for Reconsideration (“the Request”) on October 22, 2013. He based his Request upon Rule 25.5(a), (c) and (d) of the Tribunal’s Rules of Procedure and filed submissions. The Tribunal has not required the respondent to respond to the Request.

6In his submissions, the applicant sets out four specific allegations against the respondent, one of which raises “colour” as a ground of discrimination with the remaining three allegations raising “racial” difference. The applicant submits that “Rather than seeking particulars from the Applicant, the Vice-Chair dismissed out of hand the Applicants [sic] pleading that he was discriminated against in employment because of his race or colour”. The applicant submits that as no evidence was to be called during the hearing, the Vice-chair ought to have dismissed the “Rule 19A Application” and to have required the applicant to provide particulars of the alleged discrimination and permit the Application to proceed in the usual course.

law and analysis

7Rule 25.5 of the Tribunal’s Rules of Procedure sets out the limited circumstances in which reconsideration may be granted:

8A 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.

9It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which states in part:

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.

10As 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.

Rule 25.5(a)

11In this case, the applicant has based his Request upon Rules 25.5(a), (c), and (d). While he sets out more particularized allegations in his Request than those provided in his Application, which perhaps could be construed as being “new facts or evidence” within the meaning of Rule 25.5(a), the applicant has not provided any explanation as to why this could not have been obtained earlier, and specifically before the summary hearing. Reconsideration is not an opportunity for a party to re-argue a case or correct the deficiencies in its case. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34.

12In addition, the applicant has raised a new Code ground, “race”, which he had not raised either on his Application or during the summary hearing. The applicant has not provided any explanation as to why he is now claiming discrimination on the basis of “race” in addition to colour and reprisal as identified on his Application and why he could not have raised this ground earlier. Accordingly, his Request based upon Rule 25.5(a) fails.

Rule 25.5(c)

13With respect to Rule 25.5(c), it appears that the applicant is alleging that the Decision is inconsistent with case law or Tribunal procedure, namely the nature of the summary hearing. In his submissions, the applicant produced excerpts from Arthur v. Canadian Tire Corporation in which he bolded certain sentences. The applicant did not provide a copy of the Arthur decision, or provide a citation for it, but it appears that the excerpts are from the decision found at 2012 HRTO 1904.

14The sentences that were bolded were comments that the Vice-chair “…considered only the facts as asserted by the applicant” and the Vice-chair’s conclusion that the Application would continue in the Tribunal process. “It is sufficient to say that, having heard and considered the applicant’s allegations, I cannot conclude that the applicant has no reasonable prospect of proving that the respondent discriminated against him on the basis of disability and/or age”. The applicant did not explain how the Arthur decision was relevant to a reconsideration under Rule 25.5(c), explain how the Decision is in conflict with established jurisprudence, or identify how the proposed reconsideration involves a matter of general or public interest.

15With respect to the applicant’s submissions that, “Rather than seeking particulars from the Applicant, the Vice-Chair dismissed out of hand the Applicants [sic] pleading that he was discriminated against in employment because of his race or colour” and “The Applicant takes the position that the Vice-Chair must dismiss the Rule 19A Application, require the Applicant to provide particulars of the alleged discrimination, and permit the Application to proceed in the usual course”, it appears that the applicant takes issues with the Tribunal’s summary hearing process. The Tribunal is entitled to hold a summary hearing, which is a screening mechanism, and to control its own process. See: Eisenberg v. Seneca College of Applied Arts and Technology, 2012 ONSC 4802 (Div. Ct.) at para. 13, and Tulloch v. Superior Facility Services (1084408), 2013 HRTO 759 at para. 9.

16During a summary hearing, the Tribunal does not hear evidence from the parties. This was made clear to the parties in para. 6 of the CAD advising the parties that a summary hearing would be scheduled. Further, in para. 3 of the CAD and para. 18 of the Decision, the Tribunal noted that the approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 to 10.

17During the summary hearing, the Tribunal probed the applicant about how his allegations could constitute a violation of the Code on the grounds set out in the Application. The applicant provided details of those allegations, which is reflected in paras. 9 to 12 of the Decision. As the Tribunal noted in para. 19 of the Decision, the parties provided numerous details about the discussions and difficulties they were respectively experiencing about addressing the respondent’s medical restrictions in the workplace, including the meetings held with WSIB and the applicant’s assertions that the respondent was working outside of his modified work arrangements, such that the Tribunal repeatedly requested that the parties focus on the issue that had been identified in the CAD, whether the Application had a reasonable prospect of success.

18As noted in paras. 9 to 11 of the Decision, and again at paras. 24 and 25, the Tribunal considered whether the applicant’s allegations pertaining to colour under the Code based upon what was set out in the Application and identified during the hearing and whether it had a reasonable prospect of success. The applicant did not allege the Code ground of race either before or during the summary hearing. The applicant did not establish that he was advantaged in any way, a requirement that he needs to prove to have his Application upheld. See para. 24 of the Decision and, for example, A.B. v. Toronto Police Services Board, 2013 HRTO 447 at paras. 59 to 61, as mentioned in para. 24 of the Decision. Further, the applicant did not establish how the alleged comment could constitute harassment under the Code. See para. 25 of the Decision. Accordingly, the Tribunal determined that there was no reasonable prospect of success.

19The Code ground of “reprisal” was considered in paras. 26 to 29 of the Decision. In those paragraphs, the Tribunal determined that the allegations did not meet “reprisal” as defined in the Code and accordingly did not have a reasonable prospect of success. The applicant does not provide any submissions in his Request addressing “reprisal” or his allegations about reprisal.

20Again, the applicant’s Request pursuant to Rule 25.5(c) is dismissed.

Rule 25.5(d)

21In his Request, while the applicant sets out four allegations pertaining to the Code grounds of race and colour and a very lengthy quotation from Arthur, above, which included a lengthy quotation from Dabic, above, he provides very limited submissions as the basis for his Request. Indeed, those submissions are set out in paras. 6 and 15 above.

22The applicant has not identified other factors that exist that would outweigh the public interest in the finality of Tribunal decisions, as required by Rule 25.5(d). Accordingly, the Request pursuant to Rule 25.5(d) is dismissed.

23The applicant’s Request is dismissed.