HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carla Borba
Applicant
-and-
Toronto Transit Commission
Respondent
RECONSIDERATION DECISION
Adjudicator: Brian Cook
Indexed as: Borba v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Carla Borba, Applicant
Harry Kopyto, Representative
Toronto Transit Commission, Respondent
Lucy Siraco, Counsel
Introduction
1On April 16, 2011 the Tribunal issued its Decision in this Application, Borba v. Toronto Transit Commission, 2012 HRTO 730 (“the Decision”), dismissing the Application following a hearing held on March 23, 2012 by telephone conference call. The applicant has asked the Tribunal to reconsider its Decision.
2The Request for Reconsideration is 23 pages in length, which contrasts with the brief written submissions provided by the applicant’s representative in advance of the summary hearing and the limited submissions at the summary hearing. The Request for Reconsideration comments on most of the paragraphs in the Decision, and seeks to establish that the Decision includes a great many factual, procedural and jurisdictional errors.
3The Decision dismissed the Application. The Decision found that some of the allegations were not filed in time and that as a result, the Tribunal lacked jurisdiction concerning them. With respect to the allegations that were filed in time, the Decision found there was no reasonable prospect that the applicant could successfully show that the allegations, if true, involved an infringement of her Code-protected rights.
4The applicant was represented at the hearing by Harry Kopyto, a legal agent. Mr. Kopyto was retained by the applicant prior to the hearing but after she filed the Application.
5The Application as originally filed identified reprisal as the only ground of alleged discrimination. In December 2011, and after she had retained Mr. Kopyto, the applicant submitted a Request for Order During Proceeding, seeking to amend the Application to include allegations of discrimination on the additional grounds of disability, sex, and age. The Request for Order During Proceedings was dealt with at the summary hearing.
6At the outset of the summary hearing, Mr. Kopyto asked that he be allowed to record the proceeding. This request was dealt with in the manner described in paragraphs 13 and 14 of the Decision:
At the outset of the summary hearing, Mr. Kopyto asked that he be allowed to record the proceeding. He explained that he has a wrist disability that makes it difficult to take written notes. Mr. Kopyto stated that sole purpose of the recording would be an “aide de memoire” and that it would be used for no other purpose than to allow him to make submissions in the summary hearing and would be destroyed after the hearing.
I noted that the Tribunal’s practice is to not allow recording of hearings except in exceptional circumstances. In this case, the request was based on a Code ground and Mr. Kopyto undertook to make no use of the recording beyond the summary hearing and to destroy it afterwards. I allowed the recording on this basis, but noted that it would have been preferable for Mr. Kopyto to give advance notice of the request.
7On March 27, 2012 Mr. Kopyto wrote to the Tribunal as follows:
Vice-chair Cook directed that I advise him that my tape recording of portions of the summary judgement hearing were made by me only as an aid memoir and will not be used for any other purpose. I confirm this information.
8On May 9, 2012, Mr. Kopyto filed a Request for Reconsideration.
9The respondent was invited to make submissions on the Request. Instead, on July 27, 2012, the respondent filed a Request for Order During Proceedings. It asked that the applicant and her representative be required to affirm and declare that any audio recording of the summary hearing has been destroyed and for the Tribunal to determine if the recording of the summary hearing was used in any way in preparing the Request for Reconsideration. The respondent indicated that the detailed nature of the Request for Reconsideration raised suspicions that the recording of the summary hearing had not been destroyed. The respondent’s counsel indicated that she had written to Mr. Kopyto on several occasions to seek clarification and that Mr. Kopyto had refused to confirm that the recordings had been destroyed. The respondent submitted that the Request for Reconsideration should not be considered until this matter is clarified.
10Mr. Kopyto filed a Response to the Request for Order During Proceedings on August 7, 2012. He indicated that he was not obliged to confirm anything further than he had already confirmed in his letter of March 27, 2012 and took offence at the suggestion that he had done anything improper. He did not, however, confirm that the recording had been destroyed or that it had not been used to prepare the Request for Reconsideration.
11On February 13, 2013, I issued a Case Assessment Direction asking the applicant to provide clarification about what uses were made of the recording of the hearing. The applicant was asked to address the following:
Does the applicant or her representative have a recording or transcript of some or all of the summary hearing?
If not, what happened to the recording that was made?
Was the recording or transcript used in the preparation of the Request for Reconsideration?
12Mr. Kopyto replied on February 19, 2013. He confirmed that no recording or transcript of the hearing now exists. He indicated that after the hearing he listened to the recording and made “extensive notes” with respect to the contents of the recording. He confirmed that he utilized these notes for the purpose of preparing the Reconsideration Request.
13I accept the explanation provided by the applicant’s representative regarding the use of the recording and conclude that it was not used inappropriately.
The Reconsideration Test
14Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.
45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.
(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.
15The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. Rule 26 of the Tribunal’s Rules of Procedure states:
26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision
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.
16The Tribunal’s Practice Direction on Reconsideration 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.
17As 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.
18In Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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.
Background to the Reconsideration Request
19Before dealing with the Request, it may be helpful to review the purpose of the hearing that led to the Decision.
20When the Application was first filed, the only ground of alleged discrimination was reprisal. On March 4, 2011, the Tribunal issued a Notice of Intent to Dismiss indicating that the Tribunal might not have jurisdiction over the Application because it was not filed within one year of the last alleged incident of discrimination and because the Application did not appear to allege specific Code-related events.
21The applicant filed submissions addressing these issues. In Interim Decision 2011 HRTO 781, the Tribunal noted that at the early stages, the Tribunal will only dismiss an Application if it is plain and obvious that the Tribunal does not have jurisdiction over the Application. The Vice-chair noted, at paragraph 3, that the applicant’s submissions indicated that the last incident described in the Application occurred within one year of the filing of the Application and that the allegations of reprisal “relate to her various workplace concerns as raised with the employer’s internal Human Rights Unit regarding disparaging remarks, harassment and unfair treatment.” The Vice-chair directed that the Application be delivered to the respondents.
22The applicant was directed to provide more particulars of her allegations and how they related to the Code. The applicant provided further information and in Interim Decision 2011 HRTO 963, the Vice-chair confirmed that the respondent was required to file a Response.
23After the Response was received, the Tribunal issued a Case Assessment Direction, dated November 8, 2011. It noted that the only ground of alleged discrimination identified by the applicant was reprisal. It directed that a summary hearing be held pursuant to Rule 19A of the Tribunal’s Rules of Procedure, to determine if the Application should be dismissed in whole or in part because the Application had no reasonable prospect of success.
24On December 13, 2011, the Tribunal issued a Notice of Summary Hearing. The hearing was scheduled for March 19, 2012.
25On December 15, 2011, Mr. Kopyto filed a Request for Order During Proceedings, seeking to amend the Application to include disability, sex and age.
26On January 26, 2012, the Tribunal issued a Case Assessment Direction directing that the Request for Order During Proceedings would be dealt with during the telephone conference hearing on March 19, 2012.
27There were thus two primary issues at the March 19, 2012 hearing:
Should the Application be amended to include allegations of disability, age and sex?
Should the Application be dismissed in whole or in part as having no reasonable prospect of success?
28Related to both of these was the question of whether the original allegations of reprisal and the proposed amended allegations were filed in accordance with section 34. Pursuant to section 34 of the Code, an applicant may bring allegations regarding events that occurred more than one year before the Application was filed only if they formed part of a “series of incidents” or if there was a good faith explanation for the delay and no substantial prejudice would result to the respondent. If one of these circumstances cannot be established, the Tribunal has no jurisdiction regarding the allegations relating to the events that occurred more than one year before the Application was filed and that part of the Application or the proposed amended Application must be dismissed. Both parties provided submissions at the summary hearing on this related issue of delay.
29In this case, most of the allegations related to events that occurred more than one year before the Application was filed. Unless the applicant could establish that those events were part of a series of events or that there was a good faith explanation for the delay, the Tribunal would not go on to determine whether the allegations were true or if they resulted in an infringement of her Code-protected rights.
30The Decision concluded that the allegations concerning the events that happened more than a year before the Application was filed were not a series of events within the meaning of section 34(1) of the Code and that the applicant had not established a good faith explanation for the delay under section 34(2) of the Code.
The Request for Reconsideration
31As noted earlier, the Tribunal’s Rules provide that 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.
32The Request does not identify any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. Rather, the Request argues that the facts were not properly understood leading to errors in the Decision.
33The Request does not assert that the applicant was not given notice of the proceeding.
34The Request asserts that the Decision is in conflict with established jurisprudence and Tribunal procedure but this assertion is based on the argument that the Tribunal’s procedure and jurisprudence requires that findings of fact cannot be made unless there is evidence to support them and the theory that the Decision makes findings of fact without any supporting evidence. This is clearly essentially an argument that the Decision should be reconsidered because the applicant does not agree with it and believes that the Application should not have been dismissed. This in turn is clearly an attempt to re-argue the case and to repeat and make new submissions about why the Application should not have been dismissed. The Decision did not make findings of fact but rather considered the allegations and facts put forward by the applicant for timeliness and whether the applicant had evidence she could point to that would support a link between the conduct she complained of and a Code ground. The Tribunal’s Rules, Practice Direction and Decisions make clear that the Reconsideration process is not intended to provide parties with another opportunity to make submissions on matters that have already been decided.
35The Request goes through the history of the alleged events in significantly more detail than the applicant provided at the hearing. This more detailed history is intended to show that the alleged events that occurred more than one year before the Application was filed were a series of events within the meaning of section 34 of the Code. The submissions on this point seek to establish that there are factual errors in respect of the description of the events in the Decision and to show that the events were discriminatory, primarily on the basis of sex. This is premised primarily on Mr. Kopyto’s theory that the events are a series of related events because the employer failed to properly investigate the events because of the applicant’s sex. This is an argument that was advanced at the hearing and dealt with in the decision.
36According to the Request, Mr. Kopyto intended to produce evidence to support his assertion that systemic sex discrimination occurs in the workplace, which he asserts would have proved that the applicant experienced discrimination on the basis of sex. The suggestion that evidence would be produced to show systemic sex discrimination was not made at any time prior to the Request and even in the Request, the nature of the evidence that would be relied on to prove systemic discrimination is not described. The Request asserts that an applicant is not required to explain in a summary hearing what evidence the applicant intends to rely on to prove the case and that allegations of systemic discrimination and disclosure of the evidence to be relied on to prove the systemic discrimination need only be provided at a hearing. With respect, this assertion is not correct. The whole point of a summary hearing is to allow the applicant to explain the case she intends to make so that the Tribunal can determine if there is no reasonable prospect that the applicant will be able to successfully prove the allegations. A Request for Reconsideration is not intended to provide a forum to advance new allegations or suggest some new approach to the case that was not previously made out.
37Paragraph 33 of the Decision indicated that the applicant went off work on a medical leave for “stress” following an incident at work, and that she had not returned to work. According to the Request, this information is not correct because the applicant has never sought to be absent from work at all and has continued to work. Correcting the statement that the applicant had gone off work and remained off work would not show that the alleged events were a series of events within the meaning of section 34 or that the Application should not be dismissed as having no reasonable prospect of success.
38The Request for Reconsideration also states that the indication in paragraph 40 that the applicant consulted a lawyer before filing the Application is not correct. According to the Request, the applicant “did seek advice” but did not consult a lawyer. The Request does not explain from whom the advice was sought, and does not clarify if the result of this advice was to limit the ground of discrimination to reprisal. The Request does not explain how correcting this alleged error would change the result.
39Part II of the Request consists of general legal propositions about discrimination, which party bears the onus at the different stages of analysis, and what needs to be established to show a prima facie case of discrimination. These general arguments do not establish that the Decision is in conflict with established jurisprudence or Tribunal procedure or any of the other factors discussed in the Tribunal’s Practice Direction or Rules.
DECISION
40The Request for Reconsideration is essentially an attempt to re-argue matters that were already presented or argued at the hearing or an attempt to come up with new matters that should have been presented at the hearing. To the extent that the Decision contains factual errors, correction of those errors would not alter the outcome of the Decision as they were not material to the Decision.
41The applicant has not established the existence of any of the factors identified in Rule 26 of the Tribunal’s Rules of Procedure as a basis for granting a reconsideration of the Tribunal’s Decision. The Request for Reconsideration is denied on that basis.
Dated at Toronto, this 22^nd^ day of March, 2013.
“signed by”
Brian Cook
Vice-chair