Kovios v. Inteleservices Canada Inc., 2013 HRTO 460

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Kovios

Applicant

-and-

Inteleservices Canada Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: March 19, 2013

Citation: 2013 HRTO 460

Indexed as: Kovios v. Inteleservices Canada Inc.

WRITTEN SUBMISSIONS

Susan Kovios, Applicant

Self-represented

Inteleservices Canada Inc., Respondent

Evan VanDyk, Counsel

Introduction

1On August 14, 2012, the Tribunal issued its Decision in this Application, 2012 HRTO 1570, dismissing the Application. On September 14, 2012, the applicant asked the Tribunal to reconsider its Decision. The applicant filed an Addendum to the request on September 19, 2012. The respondent was invited to make submissions on the Request to Reconsider and it filed its submissions on February 1, 2013. On February 19, 2013, the applicant filed reply submissions addressing the respondent’s submissions. The respondent then filed final submissions on February 22, 2013. The respondent’s final submissions were not requested and they do not add anything to the submissions previously made by the respondent. I have accordingly not considered the respondent’s final submissions of February 22, 2013 in determining the applicant’s Request to Reconsider.

background

2The Application alleged that the respondent failed to accommodate the applicant’s scent and fragrance sensitivity and that she was forced to stop working as a result after less than three days.

3The Decision noted (at paragraph 53) that the duty to accommodate in an employment context requires both the employer and the employee to co-operate in the search for solutions that will allow the employee to perform the essential duties of the employment without causing undue hardship for the employer. The employee must identify that she requires accommodation and provide sufficient information to the employer to allow the employer to develop appropriate solutions.

4The Decision found that while the respondent’s attempts to accommodate the applicant were not perfect and were not successful in allowing the applicant to continue working, the applicant failed to provide sufficient information to the respondent about the nature and extent of the accommodation she sought and failed to inform the respondent that the accommodation measures taken were not adequate. The Decision concluded that, as a result, the applicant did not experience discrimination in employment contrary to the Code.

THE REQUEST FOR RECONSIDERATION

5The Request for Reconsideration, the Addendum to the Request and the applicant’s further submissions of February 19, 2013 provide the following reasons why the Tribunal should reconsider its Decision:

a. The applicant disagrees with some of the findings;

b. The applicant states that the Decision includes factual errors;

c. The applicant alleges that significant aspects of the respondent’s evidence should have been found to be not credible. She alleges that she has new proof to support this;

d. The applicant states that she was denied a fair hearing because there was not enough time to allow her to present all of her evidence and make all of her submissions.

THE RECONSIDERATION TEST

6Under 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.

7The 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 (Practice Direction on Reconsideration, January 2008 amended June 2008). Most relevant to this Decision is Rule 26 which 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.

8The 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.

9In 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.

ANALYSIS

10As discussed in the Decision, the events giving rise to the Application occurred during a three-day training session at a call centre. The applicant did not complete the training session because she concluded that her scent and fragrance sensitivity was not being accommodated and because she felt that in the absence of appropriate accommodation she could not safely continue to work in the workplace.

11At the hearing, the applicant and the witnesses called by the respondent provided testimony. There were some differences in the evidence between the evidence of the applicant and the other witnesses. The Request for Reconsideration reviews these differences in some detail and suggests that to the extent that the evidence differed, the applicant’s evidence should have been preferred. The Addendum to the Request indicates that the applicant has now found telephone records that prove that the sequence of events on the last day of the training program were as she stated they were and not as the respondent’s witnesses stated they were. The Request also re-states the applicant’s position that the respondent and the individual employees who were aware of her sensitivity ought to have done more to ensure that she was not exposed and should have asked her to make sure that the things that were done to accommodate her sensitivity were adequate.

12As noted above, the purpose of the Tribunal’s Reconsideration process is not to provide an opportunity to re-argue matters that were raised at the hearing. Even if the applicant is correct that some of the factual details are not correct, she has not identified any factual detail that would have led to a different result if her version were accepted. With respect to the telephone records that the applicant has found since the hearing, this is not new evidence that was not available at the time of the hearing.

13The central issue in this case was whether the respondent appropriately accommodated the applicant. As discussed in the Decision, a determination of this issue involves an assessment of what the respondent did in response to the information presented at the time by the applicant about what her needs were. The applicant continues to believe that the respondent had all the information required in order to fully accommodate her disability. The Decision found that the applicant did not provide enough information to allow the respondent to accurately identify what her accommodation needs were and to clearly explain to the respondent why the accommodation solutions that were attempted were not adequate. While I appreciate that the applicant does not agree with the conclusions, this is not a basis for re-opening and reconsidering a decision that is intended to be a final decision.

14The Request, and in particular the applicant’s February 19, 2013 submissions, argue that the facts should show that the applicant’s employment was terminated by the respondent without just cause and that she did not quit her employment. The applicant argues that this view of the history would be clear if the facts as she believes them to be were accepted. She argues that the evidence, properly understood would show that she did not quit the employment and that she instead continued to ask the respondent to accommodate her so that she could continue in the employment.

15I appreciate that the applicant feels strongly that she did not quit the employment. However, the issue of whether she quit the employment or if the respondent terminated the employment was not critical to the analysis.

16The issues raised in this Request were the subject of evidence submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson, mentioned above, 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

17It is troubling that the applicant believes that she was not allowed to fully present her case due to time pressures. According to the Request, the applicant believes that “there were many points to be argued and logic to be discovered” which did not come out in the hearing because of time constraints or because she was not permitted to present evidence or argument. The Request identifies some particular aspects of the case that the applicant states did not come out in evidence or were not addressed in submissions. It appears that the applicant is referring to things that were not addressed during the hearing that she has subsequently identified as things that should have been raised at the hearing. She does not allege that she was not allowed to present her evidence and submissions or to cross-examine the respondent’s witnesses, but only that she now believes that she would have been more successful if there had been more time. If the applicant had said at the hearing that she had not been able to complete her evidence or cross-examination of the respondent’s witnesses, or make full submissions, steps would have been taken to ensure that the applicant had a full opportunity to make her case.

18The fact that the applicant now believes that she did not have a full opportunity to make her case is regrettable, but in the circumstances, this is not a basis for granting the reconsideration request.

19In summary, I conclude that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision.

20The Request is denied.