Tanimowo-Reyes v. TD Insurance, 2013 HRTO 275

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joyce Olubola A. Tanimowo-Reyes

Applicant

-and-

TD Insurance (Meloche Monnex)

Respondent

RECONSIDERATION DECISION

Adjudicator: Ian R. Mackenzie

Date: February 19, 2013

Citation: 2013 HRTO 275

Indexed as: Tanimowo-Reyes v. TD Insurance

WRITTEN SUBMISSIONS

Joyce Olubola A. Tanimowo-Reyes, Applicant

Self-represented

Introduction

[ 1 ] On July 24, 2012, the Tribunal issued its Decision in this Application, 2012 HRTO 1427, dismissing the Application (“Decision”). The applicant has asked the Tribunal to reconsider its Decision in accordance with section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

[ 2 ] The applicant has requested that the reconsideration be conducted by a different adjudicator. The assignment of a reconsideration request to any particular adjudicator is a decision of the Tribunal’s Associate Chair. In this case, the reconsideration request was assigned to me. The Tribunal’s practice direction on reconsideration states that “In most cases the member who heard the original matter will be assigned to determine the reconsideration request”.

[ 3 ] In her Request for Reconsideration the applicant has also asked for production of certain documents. The applicant requested a copy of “any and all recording of the hearing” by the Tribunal, including audio and notes taken by the adjudicator. The hearing was not recorded by the Tribunal. As noted by the Tribunal’s practice direction on recording hearings the HRTO does not normally record or transcribe its proceedings.

[ 4 ] The private notes of an adjudicator are neither relevant nor producible and are not provided by the Tribunal to anyone. They do not form a part of the record of the proceeding of this hearing. The applicant in her request also sought a copy of any recordings, including notes, of the respondent’s representatives. These notes of the respondent are not relevant to a Request for Reconsideration.

background

[ 5 ] In her Application, the applicant alleged discrimination in employment with respect to race, colour, place of origin, citizenship, ethnic origin, disability, family status, marital status and reprisal or threat of reprisal. The applicant self-identified as a black Canadian citizen born abroad in Nigeria.

the request for reconsideration

[ 6 ] The applicant has relied on the following reasons to support her Request for Reconsideration:

a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;

b. The decision is in conflict with established case law and the proposed reconsideration involves a matter of general or public importance; and

c. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

[ 7 ] In addition, the applicant alleges a reasonable apprehension of bias is raised by the Decision.

decision

[ 8 ] Under section 45.7 of the Code, the Tribunal may reconsider its decisions in accordance with the Tribunal’s Rules. The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to applicants and respondents on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008, amended June 2008 and March 2010). Rule 26.5 provides:

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.

[ 9 ] The Tribunal’s Practice Direction on Reconsideration contains 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.

[ 10 ] I find that the applicant has not met the burden of establishing any of the threshold criteria justifying granting a reconsideration.

[ 11 ] In her Request, the applicant requested a copy of a tape recording of an investigation interview conducted by the respondent. This is a request that the applicant could have made either before or at the hearing. The applicant was represented by counsel at the hearing and the respondent’s had provided the applicant with a copy of the written transcript in advance of the hearing. In closing submissions the applicant suggested that the transcript was inaccurate and at that time the respondent offered to provide me with a copy of the audio recording. However, as noted at paragraph 53 of the Decision the applicant had not cross-examined the respondent’s witnesses on the accuracy of the transcript and the applicant could have requested a copy of the tape recording in advance of the hearing if she wanted to prove that the transcription was inaccurate. The applicant disagreed with this decision to not accept a copy of the audio recording of the investigation interview as an exhibit, in the absence of any doubts cast on the transcript. The applicant has not demonstrated how this ruling is in conflict with established case law. It was open to her at the hearing to lead evidence to establish, as she alleges, that the transcript of the interview was “fraudulent”.

[ 12 ] In support of her argument that there are new facts or evidence that support her request for reconsideration, the applicant provided signed statements from former co-workers. The statements relate to the events described in the Application. The co-workers could have been called as witnesses by the applicant. This is evidence that the applicant could have obtained prior to the hearing and her request does not provide any explanation as to how this evidence could not reasonably have been available to her previously.

[ 13 ] The applicant refers in her submissions to facts about her workload that she did not raise in her evidence at the hearing. This is evidence that was available to the applicant prior to the hearing. She did provide evidence on her workload at the hearing and she raised her workload as an issue in her submissions at the hearing. She was therefore aware of the importance of providing full evidence at the hearing.

[ 14 ] The applicant raised arguments related to the Charter of Rights and Freedoms and the Universal Declaration of Human Rights. The Charter was not raised as an issue in this proceeding and the applicant has not established that it applies to her Application. The applicant also alleges that the HRTO, in not finding discrimination, also discriminated against her. I interpret this as an allegation that the decision is contrary to established case law.

[ 15 ] The applicant referred me to a number of cases (including McLean v. DY 4 Systems, 2010 HRTO 1107) addressing the issue of whether or not an employer is required to ask an employee about accommodation needs. This case law is not relevant here, because the respondent did in fact have discussions about accommodation with the applicant. The respondent was attempting to obtain further information about medical restrictions to support accommodation needs when the applicant refused to fill out the forms that were part of that effort on the part of the respondent.

[ 16 ] The applicant also alleged that I misapplied the test in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (SCC) (“Meiorin”), in particular by not applying the test of undue hardship. I determined in this case that the respondent had taken appropriate steps to accommodate the applicant, so an undue hardship analysis was not necessary. I find that the applicant has not established that the Decision is contrary to established case law.

[ 17 ] The applicant disagrees with the test for determining credibility used consistently by the Tribunal. She relies on decisions of the Supreme Court of Canada on assessing credibility in criminal trials. The standard of proof in a criminal proceeding is different than for a civil proceeding. The Tribunal’s case law has consistently relied on the test for determining credibility set out in Faryna v. Chorny, [1952] 2 D.L.R. 354, (which was cited in the Decision) and the applicant has not convinced me that this test is in conflict with established case law.

[ 18 ] In her lengthy submissions, the applicant disputes the findings of fact in the Decision. She also disagrees with the conclusions reached in the Decision. The applicant also disagrees with my findings on credibility. Disagreeing with the conclusions of a decision is not sufficient to justify a reconsideration of a decision. Similarly, disagreeing with findings on credibility of witnesses is not sufficient to justify a reconsideration of a decision.

[ 19 ] The applicant’s allegations of a reasonable apprehension of bias appear to be connected to the conclusions I reached on the evidence. The test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394-5:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

[ 20 ] There is a strong presumption of judicial or quasi-judicial impartiality. To overcome the presumption, the party alleging a reasonable apprehension of bias must establish the presence of serious grounds: Wewaykum Indian Band v. Canada, 2003 SCC 45), [2003] 2 S.C.R. 259 at paras. 59, 76 and 77. The applicant has not pointed to any extrinsic evidence to support an allegation of a reasonable apprehension of bias. Instead she argues that the fact that I accepted the evidence of the respondents on certain points and ultimately dismissed her Application is evidence of such an apprehension of bias. This argument is insufficient to demonstrate a reasonable apprehension of bias on the part of an adjudicator.

[ 21 ] I find that the applicant has not demonstrated that the reconsideration request involves a matter of general or public importance or that other factors outweigh the public interest in the finality of Tribunal decisions.

[ 22 ] The Request for Reconsideration is denied.

Dated at Toronto, this 19^th day of February, 2013.

"signed by"

Ian R. Mackenzie

Member