Adams v. Community Life Care Inc., 2013 HRTO 428

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brenda Adams

Applicant

-and-

Community Life Care Inc., Metzie Lacroix, Ed Broderick, Mick McDonald and Margo Emo

Respondents

RECONSIDERATION DECISION

Adjudicator: Douglas Sanderson Date: March 13, 2013 Citation: 2013 HRTO 428 Indexed as: Adams v. Community Life Care Inc.

WRITTEN SUBMISSIONS

Brenda Adams, Applicant

Jeffrey Robles, Counsel

1The applicant requests Reconsideration of the Tribunal’s Decision of September 26, 2012, 2012 HRTO 1838, dismissing this Application as an abuse of process following a preliminary hearing held on May 23, 2012.

2The circumstances in which Reconsideration may be granted are set out in Rule 26.5:

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.

3The 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.

4The applicant filed a Request for Reconsideration (the “Request”) on October 19, 2012 and relies upon Rules 26.5(a), 26.5(c) and 26.5(d).

5In the Application, the applicant indicated that she worked as a Personal Support Worker in a long-term care facility operated by the organizational respondent. The applicant alleged that she was forced to resign her employment and execute Minutes of Settlement after she complained of harassment and a poisoned work atmosphere and expressed concerns about the care of residents. The respondents filed a Response in which they requested early dismissal of the Application because the applicant signed a full and final release with respect to the same matter and because a proceeding before the OLRB appropriately dealt with the substance of the Application, pursuant to section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

6By letter dated March 22, 2012, the Tribunal ordered a preliminary hearing by conference call to determine whether the Application should be dismissed because the substance of the Application has been dealt with in another proceeding or dismissed as an abuse of process because the applicant has signed a full and final release with respect to the same subject matter. The hearing was held on May 23, 2012.

7In Decision 2012 HRTO 1838, the Tribunal found that the applicant released the respondents from claims regarding her employment and concluded that allowing the Application to proceed would amount to an abuse of process. In doing so, the Tribunal found that the medical evidence presented by the applicant did not establish that she lacked the capacity to understand the Minutes of Settlement at the time she executed them.

8The applicant submitted that the parties were afforded an opportunity to make oral submissions during the preliminary hearing, but were not permitted to present oral evidence. The applicant submitted that the Registrar’s letter dated January 27, 2012 indicated that the parties may produce additional documentary evidence at the hearing, and oral evidence was not permitted. The applicant submitted that Rule 22.2 of the Tribunal’s Rules of Procedure precludes parties from presenting oral evidence at preliminary hearings. Rule 22 states as follows:

22.1 The Tribunal may dismiss part or all of the Application where it determines, under s. 45.1 of the Code, that another proceeding has appropriately dealt with the substance of part or all of an Application.

22.2 The parties will have the opportunity to make oral submissions before the Tribunal dismisses an Application under Rule 22.1.

9The applicant submitted that, had she been given the opportunity, she would have presented evidence regarding the circumstances under which she executed the Minutes of Settlement, which were set out in the Application, but the structure of the hearing prevented this. The applicant submitted that this evidence would have established that the Minutes of Settlement are void and unenforceable, pursuant to the Tribunal’s jurisprudence. Consequently, the applicant submitted that the Tribunal dismissed the Application without a complete evidentiary record. The applicant further submitted that procedural fairness requires that determination of the validity of the Minutes of Settlement should be made only with a complete evidentiary record after an oral hearing. The applicant also submitted that I misapplied the principles enunciated in Pritchard v. Ontario (Human Rights Commission), 1999 CanLII 15058, 35 CHRR 39 (ON Div. Ct.) and failed to take into account the facts regarding the circumstances surrounding the resignation of her employment and the execution of the Minutes of Settlement. Finally, the applicant submitted that the matter is of general and public importance as the applicant’s concerns regarding abuse of residents are under investigation by the Ministry of Health and Long-Term Care and continue to be reported to the public in the media.

Analysis and Decision

10For the reasons that follow, the Request for Reconsideration is denied.

11The applicant’s characterization of the Registrar’s letter of January 27, 2012 is not accurate. This letter served as a cover letter for the delivery of the respondents’ Response and notified the applicant that the respondent asked the Tribunal to dismiss the Application because she signed a full and final release and because another proceeding dealt with the substance of the Application, pursuant to section 45.1 of the Code. The letter directed the applicant to file submissions in response to the respondent’s requests and indicated that the Tribunal would consider the applicant’s submissions in determining how to address the requests. The Registrar’s letter of January 27, 2012 contains no reference to a hearing or to what the parties could present at a hearing. I would also note that the applicant’s submissions regarding the Minutes of Settlement, filed pursuant to the Tribunal’s direction, focussed entirely on the issue of the applicant’s capacity and did not refer to the factual context in which the applicant executed the Minutes.

12The Tribunal, by a Registrar’s letter dated March 20, 2012, ordered a half-day preliminary hearing by conference call to address the respondents’ request to dismiss the application. The Tribunal made this order pursuant to section 43(2) of the Code, which provides that the Tribunal may not finally dispose of an application within its jurisdiction without affording the opportunity to make oral submissions. The Registrar’s letter of March 20, 2012 contained the following paragraph:

A Notice of Hearing with call-in information will follow. The parties must deliver any additional documents or case law that they wish the HRTO to consider to each other and file them with the HRTO no later than 14 days prior to the hearing.

Nothing in this letter indicated that oral evidence was not permitted during the telephone conference. The applicant did not file any additional materials prior to the preliminary hearing.

13By Registrar’s letter March 22, 2012, the Tribunal advised the parties of the date, time and call-in information for the conference call. This letter indicated that the hearing would deal with the issues identified in the Registrar’s letter of March 20, 2012 and that timelines for delivery and filing of any documents or submissions were as set out in the March 20, 2012 letter.

14The applicant was represented by counsel, Mr. Robles, at the hearing whose submissions regarding the Minutes of Settlement were restricted to medical evidence presented to support the argument that the applicant lacked the capacity to understand the Minutes of Settlement. As noted above, I found that the medical evidence was not sufficient to establish incapacity. Applicant’s counsel made no reference in his submissions to the circumstances under which the applicant executed the Minutes of Settlement. Neither did applicant’s counsel request, before or during the hearing, to adduce oral evidence of any kind at the hearing, pursuant to Rule 19.1 which states:

19.1 A party may request that the Tribunal make an order at any time during a proceeding by oral submission in the course of the hearing or by written request.

I note that Mr. Robles also filed the Reconsideration Request on the applicant’s behalf. There is nothing in the Tribunal’s Rules, including Rule 22.2, that prohibits parties from adducing evidence during preliminary hearings and it is not uncommon for the Tribunal to receive testimony at preliminary hearings. A hearing scheduled by telephone may be converted to an in-person hearing if it becomes clear that evidence in the hearing room is necessary.

15In my view, the applicant's submission that she was denied the opportunity to present evidence amounts to an attempt to repair a deficiency in the presentation of her case at the preliminary hearing. This is not permitted under the Tribunal's jurisprudence and the Practice Direction on Reconsideration. See Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34. For whatever reason, the applicant made no reference during the hearing, whether by testimony or in submissions, to the circumstances surrounding the execution of the Minutes of Settlement. Accordingly, these facts were not before me.

16To meet the test set out in Rule 26.5(a), the party requesting Reconsideration must establish that there are new facts that could potentially be determinative of the case and establish that these new facts could not reasonably have been obtained earlier. The Tribunal has found that the absence of either of these requirements is fatal to a Request for Reconsideration under Rule 26.5(a). See M.K. v. 1217993 Ontario, 2011 HRTO 1362. In this case, the facts regarding the circumstances under which the Minutes of Settlement was executed are clearly not new, since the applicant was aware of them at the time she filed her Application, but chose not to refer to these facts at the hearing. Consequently the applicant has not met the requirements of Rule 26.5(a).

17The applicant submitted that I misapplied the criteria for determining whether a release should be set aside, which are set out in the Pritchard decision. The applicant did not indicate how I misapplied these principles and did not indicate how my decision was in conflict with established jurisprudence or Tribunal procedure. Accordingly, the applicant has not established the criteria for Rule 26.5(c), which requires both that the decision be in conflict with established case law and that the reconsideration be of general or public interest. In any event, the criterion of general or public interest is in my view limited to the interest in addressing potentially inconsistent jurisprudence, not factual controversies between the parties that are outside of the Tribunal’s jurisdiction. Consequently, the fact that the Ministry of Health and Long-Term Care may be investigating complaints raised by the applicant regarding resident abuse does not make the reconsideration one of general or public importance.

18The applicant did not indicate any factors that would outweigh the public interest in the finality of the Tribunal’s Decision and therefore has not met the requirements of Rule 26.5(d).

19In my view, the applicant provided no reason to conclude that compelling and extraordinary circumstances exist that would call for Reconsideration of the Decision to dismiss the Application.

20The Request for Reconsideration is dismissed.