Weihua Shi v. Holcim (Canada) Inc., 2013 HRTO 306

Human Rights Tribunal of Ontario

B E T W E E N:

Weihua Shi

Applicant

-and-

Holcim (Canada) Inc. and Anna Maccani

Respondents

DECISION

Adjudicator: Alison Renton

Date: February 22, 2013

Citation: 2013 HRTO 306

Indexed as: Shi v. Holcim (Canada) Inc.

APPEARANCES

Weihua Shi, Applicant

Self-represented

Holcim (Canada) Inc. and Anna Maccani, Respondents

Leola Pon, Counsel

background

1The applicant filed an Application on February 2, 2010, 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 family status, marital status and reprisal (“the 2010 Application”). She also filed a complaint under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”), which was dismissed by an Employment Standards Officer (“ESO”), as well as requests for review and reconsideration to the Ontario Labour Relations Board (“OLRB”). The OLRB issued a number of decisions about the applicant’s ESA complaint and ultimately upheld the applicant’s ESA complaint (“the OLRB proceedings”).

2The 2010 Application was dismissed by the Tribunal in a decision dated February 28, 2012, 2012 HRTO 416 (“the Decision”), pursuant to section 45.1 of the Code in light of the proceedings before the OLRB pertaining to the applicant’s ESA complaint. The applicant filed a Request for Reconsideration of the Decision (“the Request”) which was denied by the Tribunal in a Reconsideration Decision dated May 9, 2012, 2012 HRTO 934 (“the Reconsideration Decision”).

3The applicant filed a second Application on May 15, 2012 under the Code alleging discrimination with respect to employment because of family status, marital status and reprisal (“the 2012 Application”). The allegations in the 2012 Application are essentially the same as those raised in the 2010 Application. The respondents were not required by the Tribunal to file a Response.

4The Tribunal issued a Case Assessment Direction dated May 24, 2012 (“CAD”) in which it stated that a telephone hearing would be conducted to determine whether the Application should be dismissed, in whole or in part, because:

a. Another proceeding has appropriately dealt with the substance of the Application, referencing the Decision and the Reconsideration Decision; or

b. It would be an abuse of process for the Application to proceed.

5A Notice of Confirmation of Hearing, dated June 13, 2012, was issued to the parties scheduling the conference call for September 13, 2012. Both parties participated in the call. The respondents filed written submissions in advance of the conference call.

the applicant’s position

6Essentially, the applicant finds fault with the Tribunal’s findings as set out in the Decision and Reconsideration Decision. The applicant made detailed submissions about the concerns that she has with the Decision and the Reconsideration Decision, including facts that the Tribunal ought to have considered or mentioned in the Decision and Reconsideration Decision and her disagreement that the substance of the 2010 Application was appropriately dealt with by the OLRB proceedings.

the respondents’ position

7The respondents submit that the applicant is seeking a subsequent Request for Reconsideration of the Reconsideration Decision. They submit that according to the Tribunal’s Rules, a subsequent Request for Reconsideration should not be considered by the Tribunal absent exceptional circumstances. The respondents submit that there are no exceptional circumstances in this case. The 2010 Application was dismissed by the Tribunal and the 2012 Application should be dismissed. To find otherwise would be an abuse of process and res judicata and a re-litigation of issues that have already been decided by the Tribunal.

decision and analysis

8For the reasons set out below, I have concluded that it would be an abuse of process to permit the 2012 Application to proceed.

9The Tribunal’s jurisdiction to consider whether or not some or all of an application ought to be dismissed based on abuse of process arises out of subsection 23(1) of the Statutory Powers Procedure Act, R.S.O, 1990, c. S. 22, as amended. That subsection provides that a tribunal may make such orders or give such directions as it considers proper to prevent abuse of its processes. See also: Tribunal Rules – Rule 1.07(v.1); section 42 of the Code; Nyonzima v. Human Rights Tribunal of Ontario, 2012 ONSC 5120 at para. 11 (Div. Ct.).

10The doctrine of “abuse of process” is meant, amongst other objectives, to preserve and promote judicial economy, consistency and finality. The Tribunal has held that the doctrine of “abuse of process” can apply in a variety of circumstances. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at para. 35, the Tribunal stated, “[t]here is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever form it is brought, the matter is at an end”.

11In Matthews v. Chrysler Canada Inc., 2013 HRTO 225, the applicant had filed an Application which had been dismissed by the Tribunal. He then filed a second Application based on the same fact situation as the first one. The second Application was dismissed by the Tribunal on the basis of abuse of process. At para. 48, the Tribunal stated:

I find that allowing the litigation to proceed on that same matter would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice. In these circumstances, to permit him to put those self-same allegations before the Tribunal for consideration in a second Application, in order to re-litigate them, would be to permit an abuse of process.

See also Smith v. Ford Motor Company, 2012 HRTO 18 at para. 22.

12The 2010 Application sets out allegations during the applicant’s employment with the corporate respondent, concluding with her termination, and makes allegations about the personal respondent’s treatment towards her. In it, the applicant alleges discrimination on the grounds of family status, marital status and reprisal. The 2012 Application sets out virtually the same allegations, although some in different format, as well as what appear to be submissions describing the concerns the applicant has with the Tribunal’s reasons in the Decision and the Reconsideration Decision. The applicant essentially repeated these points in her submissions during the hearing. It is clear that the substance of the 2012 Application is the same as the 2010 Application.

13It is also clear that the applicant disagrees with the conclusions in the Decision and the Reconsideration Decision. However, the applicant cannot challenge a previous decision of this Tribunal simply by filing another application. The appropriate route, if a request for reconsideration is not successful, is to file a further Request for Reconsideration or seek judicial review of the Decision. See Hunter v. Farlake Dairy, 2011 HRTO 1906 at para. 13. In exceptional circumstances, the Tribunal may consider a subsequent Request for Reconsideration pursuant to Rule 26.7.1 of the Tribunal’s Rules of Procedure, although the applicant did not seek this.

14In these circumstances, to permit the applicant to put forward the same allegations before the Tribunal in a second Application, in order to re-litigate them, would be to permit an abuse of process. I am not prepared, because of the principles of abuse of process, to permit the 2012 Application to continue and it is dismissed.

15In light of my conclusion, I do not need to address whether or not section 45.1 of the Code applies in this situation.