Morgan v. University of Waterloo, 2013 HRTO 2119

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tracy Morgan

Applicant

-and-

University of Waterloo and David Mackay

Respondents

RECONSIDERATION DECISION

Adjudicator: Eric Whist

Date: December 27, 2013

Citation: 2013 HRTO 2119

Indexed as: Morgan v. University of Waterloo

WRITTEN SUBMISSIONS

Tracy Morgan, Applicant

Self-represented

INTRODUCTION

1This is an Application filed on April 12, 2010, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). On October 1, 2013, the Tribunal issued Decision 2013 HRTO 1644 (the “Decision”), in which the Tribunal determined that:

1. The personal respondent, David Mackay, did sexually harass the applicant, Dr. Morgan, on June 16, 2009, when he physically touched her in a manner that he ought to have reasonably known to be unwanted;

2. The institutional respondent, the University of Waterloo (the “University”) did meet its Code-mandated duty to investigate the applicant’s June 16, 2009 allegations of sexual harassment;

3. Mr. Mackay did not harass Dr. Morgan at the March 2, 2010 potluck lunch or on the six occasions Mr. Mackay and Dr. Morgan encountered each other in the hallways of Needle Hall between March 5 and April 6, 2010. Mr. Mackay’s actions on these occasions also did not constitute reprisal under the Code.

4. The University did not fail to meet a duty to investigate Dr. Morgan’s allegations concerning the potluck lunch and hallway incidents.

5. The University’s actions in responding to Dr. Morgan’s allegations about the potluck lunch and hallway incidents did not constitute reprisal under the Code.

2On October 28, 2013, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. The applicant submits that the Decision wrongly decided a number of issues. She submits that Mr. Mackay did sexually harass her on six occasions in the hallways and that these actions also constitute reprisal. She submits that the University failed to investigate these allegations and as such failed in its Code mandated duty to investigate. She submits that the University’s response to her allegations about the hallway incidents constitute reprisal. She submits that the University also failed in its duty to investigate the June 16, 2010 incident. Finally, the applicant submits that the Tribunal should have ordered non-financial remedies in order to ensure her safety and to promote a non-discriminatory workplace. The applicant provides extensive written submissions in support of her Request for Reconsideration.

DECISION

3The applicant’s Request for Reconsideration is denied. My reasons for this determination follow.

REQUEST FOR RECONSIDERATION

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The relevant Tribunal Rule is Rule 26.5 which reads, in part, as follows:

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 and orders.

5The Tribunal has also issued a Practice Direction to provide guidance on how the Tribunal exercises its reconsideration powers (Practice Direction on Reconsideration). The Practice Direction states, in part, that:

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.

6As is evident from the Rules and made explicit in Practice Direction #4, reconsideration is discretionary. It is not an appeal or an opportunity to re-argue a case. As the Tribunal states in Espey v. London (City), 2009 HRTO 271, reconsideration is not an opportunity for a party to add additional arguments upon learning that its original position was unsuccessful. And as the Tribunal states in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, once the parties to a case have had the opportunity to present their evidence and 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.

7The applicant makes numerous arguments about why the Decision is wrongly decided. The applicant submits that in arriving at the Decision the Tribunal did not duly consider the evidence that was before it, the applicant’s submissions and Tribunal case law. She submits that the Tribunal has not provided substantive or clear enough reasons for some of its findings and conclusions. She argues that it is a matter of general or public importance to correct these errors.

8However, having reviewed the applicant’s submissions I find that the applicant has not met the burden of establishing that any of the criteria justifying reconsideration set out in Rule 26.5 apply in her case. I do not find that the Decision is in conflict with established case law and the applicant’s request for reconsideration involves matters of general or public importance – Rule 26.5(c) – which is the specific provision the applicant essentially relies on.

9The applicant clearly takes issue with some of the Decision’s factual conclusions, legal analysis and the adequacy of its reasons. However, the Tribunal’s jurisprudence is clear that a Request for Reconsideration is not an appeal, an opportunity to re-argue a case or an opportunity for a party to add additional arguments; nor is it available simply because a party disagrees with the decision. There must be more than a disagreement with a decision or alleged errors to find that the requirements set out in Rule 26.5 have been reached.

10The applicant does cite a number of other Tribunal decisions that she submits are at odds with the Decision to support her contention that the Decision is in conflict with established jurisprudence. However, I do not find that these purported differences are significant or grounds for reconsideration. An inconsistency with another Tribunal decision does not necessarily justify reconsideration. As the Tribunal stated in Sigrist above,

…I have considered what is meant by the requirement of a “conflict”. Given the public interest in finality of decision-making and economy of legal proceedings, as discussed above, a decision should not be reconsidered on the basis of an assertion of an apparent conflict with the result reached in another decision. There must be a conflict with “established” jurisprudence or procedure in the sense that there is a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules.

11I do not find that the Tribunal decisions the applicant relies on, or how she relies on them, indicate that the Decision has failed to follow established jurisprudence.

12I will address a number of the applicant’s submissions that contend that the Decision failed to follow Tribunal jurisprudence. The applicant submits that the Tribunal failed to make necessary credibility assessments and that this is in conflict with Tribunal practices, particularly in resolving differences in evidence in “he said, she said” cases. She cites the Tribunal’s decision in Cugliari v. Telefficiency Corporation, 2006 HRTO 7, as an example of where the Tribunal made credibility assessments in order to determine whose version of events is to be believed.

13The applicant is specifically of the view that the Decision failed to make clear credibility assessments about the applicant’s and Mr. Mackay’s evidence as it pertains to the hallway incidents, and that it did not adequately determine whether the applicant’s account of events was credible or not.

14I do accept that making explicit credibility assessments is an important means, albeit not the only means, for the Tribunal to resolve conflicts in evidence, to determine whether an applicant has met their onus of proving that their Code rights have been violated. In the case of the hallway incidents, I am of the view that the Decision did clearly explain the basis for the decision for why the applicant’s version of events as not accepted.

15As stated in R. v. Taylor, 2010 ONCJ 396 (and quoted in the Decision), “Credibility is an omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses.” I am satisfied the Decision made assessments of the testimonial trustworthiness of Mr. Mackay’s and the applicant’s evidence and indicated the evidence relied on and why certain evidence was preferred to other evidence. The Tribunal made findings that it did not find actions of Mr. Mackay’s that were alleged to be discriminatory to be probable, and it found actions of the applicant to be improbable and not reliable. The Decision establishes, in my view, the evidence found trustworthy and explained why the applicant’s allegations about the hallway incidents were ultimately dismissed as acts of harassment and/or reprisal.

16The applicant is also of the view that the Decision failed to make an appropriate credibility assessment in relation to the credibility of Dr. Rattan’s evidence about what was said at his May 25, 2010 meeting with the applicant and his subsequent May 30, 2010 letter. The applicant submits Dr. Ruttan’s evidence was internally inconsistent and inconsistent with the applicant’s.

17The decision that Dr. Rattan’s (and the University’s) actions did not constitute reprisal did not require the type of credibility assessment demanded by the applicant. Rather it was concluded, based on consideration of the evidence before the Tribunal that “I do not find that Dr. Ruttan’s letter and the comments he purportedly made during his meeting on May 25 with Dr. Morgan constitute reprisal”. The Decision went on to explain that while the University was opposed to the applicant making complaints, as alleged by the applicant, it was because it did not find the applicant’s complaints helpful (essentially they were ones the University believed it could not resolve) and that this opposition did not constitute reprisal, as it did not prevent the applicant from pursuing future complaints. I see nothing in this reasoning that it is at odds with Tribunal case law.

18The applicant submits that the Decision did not sufficiently explain why Mr. Mackay’s and Dr. Rattan’s actions did not constitute reprisal, given the information she provided, including reference to the criteria for reprisal outlined in the Tribunal’s decision in Noble v. York University, 2010 HRTO 878. The applicant submits that it is in the public interest that the Tribunal be clearer in its rationale for its decisions in relation to the issue of reprisal.

19While the applicant quotes at length from an important Tribunal decision that is often used in Tribunal decisions to set out the requirements for a finding of reprisal, I do not find that the Decision’s determinations are at odds with this decision. The findings about the hallway incidents were essentially that the applicant’s evidence as to what occurred was not probable or reliable (and I preferred Mr. Mackay’s evidence on certain points) and consequently she did not meet her onus to show that these incidents were incidents of reprisal (or sexual harassment) as claimed. The findings in relation to Dr. Rattan’s actions explicitly determined that they did not constitute reprisal under the Code. The Decision determined the University’s actions were not an act of retaliation and did not prevent the applicant from potentially making further complaints. I see nothing in this reasoning that it is at odds with Noble, above.

20The Decision concluded that the University did not fail to meet its Code-mandated duty to investigate complaints of discrimination in relation to the six hallway incidents because the applicant had made her complaints to the University in an informal manner (as opposed to her previous formal complaint under the University’s anti-discrimination policy) and because the applicant had not indicated to the University that her complaints were Code-related. She did not complain that Mr. Mackay’s alleged actions were acts of reprisal or constituted acts of sexual harassment.

21The applicant submits that even if the University initially failed to investigate her complaints as being Code-related it ought to have changed its views when she filed her Application with the Tribunal on April 10, 2010. She submits her Application made it “crystal clear” that she was claiming her rights under the Code for the six hallway incidents and this should have led to the University to carry out a formal investigation of her hallway complaints in order to meet its Code-mandated duty to investigate. She submits that Tribunal case law states that an employer has a continuing obligation and duty to protect an employee even after an employee files a human rights complaint. She relies on the Tribunal’s decision in Payette v. Alarm Guard Security Service, 2011 HRTO 109.

22I do not find this argument persuasive. In Payette, the Tribunal found it significant that the respondent never undertook any investigation of a complaint of sexual harassment, including after the applicant filed a human rights complaint, and found under the circumstances of the case that the respondent was liable for a failure to investigate. Payette does not establish that a respondent is required to investigate a complaint of discrimination after a formal complaint is filed with the Tribunal. I am simply not satisfied that there is an established jurisprudence about the degree to which an employer has an ongoing duty to investigate an employee’s complaints including after a formal application of discrimination has been made to the Tribunal.

23I would also comment that I have reviewed the Application and I am not satisfied that the Application does make “crystal clear” that the applicant was alleging that the hallway incidents were acts of sexual harassment or reprisal and that the University failed in its duty to investigate by failing to respond to this information and conduct a further investigation. I note the Application form asks an applicant “What Happened” and asks the applicant to describe each event of alleged discrimination. The applicant identifies only the June 16, 2010 incident of alleged sexual harassment as an event of alleged discrimination. The Application form then asks an applicant to describe the effects of the alleged discrimination. It is only then the applicant describes the hallway incidents and describes them as ones that negatively affected the applicant’s sense of physical and emotional safety. The Application does not identify reprisal as a ground of alleged discrimination. It is only on May 13, 2011, over a year later, that the applicant requested that the Application be amended to include the ground of reprisal, indicating that the applicant wished for the Tribunal to consider the hallway incidents (and a further lunch incident) as acts of reprisal. Given these circumstances I do not find that the filing of the Application in April 10, 2010 gave rise to a further obligation for the University to investigate the applicant’s complaints about the hallway incidents or provided the University with information that should have led it to conclude that the informal investigation it had already conducted in relation to these incidents was inappropriate.

24The applicant further submits that the Tribunal’s Decision wrongly determined that the University met its duty to investigate the June 16, 2010 incident. She submits that the Tribunal case law holds that an employer’s investigation has to meet a standard of “reasonableness” and she quotes by way of example, Ibrahim v. Hilton Toronto, 2013 HRTO 673. She submits the University’s investigation was not reasonable and that in assessing the University’s efforts the Tribunal’s Decision did not appropriately consider and weigh the evidence and did not provide enough details to support its determinations.

25I am satisfied that the Tribunal applied the right test in considering whether the University met its duty to investigate the June 16, 2010 incident. The Tribunal explicitly relies on Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, and Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 at D/65, two decisions the Tribunal generally relies on in determining whether a respondent has met its duty to investigate. The Tribunal’s Decision explicitly refers to Laskowska as stating that the standard for assessing a respondent’s response to an allegation of discrimination is reasonableness, not perfection or correctness. The Decision repeatedly makes findings that the University’s efforts to investigate are reasonable. While the applicant clearly disagrees with the Tribunal’s findings, the applicant is essentially arguing that the Tribunal wrongly decided an issue based on the evidence before it. This is not grounds for reconsideration.

26The applicant submits that the Tribunal erred in not ordering non-financial remedies even though the Tribunal determined that the applicant had been sexually harassed on June 16, 2010. The applicant submits that the failure to provide remedies to help ensure her personal safety and restore the work environment to the way it was before the harassment is inconsistent with case law and is not in the public interest. She cites, by way of an example, Modi v. Paradise Fine Foods Ltd., 2007 HRTO 12, a decision in which the Tribunal ordered a personal respondent to undergo human rights training following a finding of discrimination.

27In its Decision the Tribunal states that:

It is well-established in human rights law that any order intended to promote Code rights and policy “…should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and to ensure future compliance, are achieved in the particular circumstances”. See Giguere v. Popeye Restaurant, 2008 HRTO 2.

28The Tribunal then reviews each of the applicant’s proposed non-financial remedies and concludes that no non-financial remedies are required to ensure future compliance with the Code. This decision, based on the Tribunal’s assessment of the facts of the case, is not at odds with Tribunal jurisprudence.

29The Request for Reconsideration is dismissed.