Hayes v. Workplace Safety Insurance Board, 2013 HRTO 627

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daryle Hayes Applicant

-and-

Workplace Safety Insurance Board Respondent

RECONSIDERATION DECISION

Adjudicator: Michelle Flaherty Date: April 16, 2013 Citation: 2013 HRTO 627 Indexed as: Hayes v. Workplace Safety Insurance Board

WRITTEN SUBMISSIONS

Daryle Hayes, Applicant David Ingraham, Representative

Introduction

1On November 9, 2012, I issued a Decision allowing the Application: 2012 HRTO 2126. I found that the respondent constructively discriminated against the applicant by refusing to directly deposit his loss of earnings (“LOE”) benefits into his bank account. In addition to damages of $1,800 to compensate him for his losses, the respondent was ordered to pay the applicant compensation for injury to dignity in the amount of $5,000.

2On December 10, 2012, the applicant’s representative filed a Request for Reconsideration. The respondents have not responded to the applicant’s Request for Reconsideration and, in the circumstances, it is not necessary for them to do so.

3For the reasons that follow, the Request for Reconsideration is dismissed. The Request was not filed within 30 days of the date of the Decision as required by the Tribunal’s Rules of Procedure. In any event, the applicant has presented no basis to reconsider the Decision.

REQUEST FOR RECONSIDERATION

4Pursuant to section 45.7 of the Code, any party to a proceeding before the Tribunal may request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request.

5Pursuant to Rule 26.1, a Request for Reconsideration must be filed within 30 days of the date of the Decision. Rule 26.5 states that a 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.

6Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In this regard, it is helpful to consider the Tribunal’s Practice Direction on Reconsideration, which states, in part:

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.

7The applicant’s Request for Reconsideration was filed slightly outside the 30-day period provided for in the Rules. While this may have been sufficient basis to deny the Request for Reconsideration, I have nevertheless considered the merits of the applicant’s arguments.

8In his Request for Reconsideration, the applicant’s representative identifies the following factors under Rule 26.1, which he says support his Request: there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; the decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

9In essence, the applicant’s representative argues that I erred: (a) in failing to apply tort principles in my determination of human rights damages; and (b) in not permitting the applicant to present evidence that he says would have established systemic discrimination. The applicant’s representative also argues that he did not appreciate that the Tribunal was conducting a full hearing on the merits and that, accordingly, he did not present all of the evidence that would have established losses in the amount of $20,000. He states that this is a further basis to reconsider the Decision.

OVERVIEW OF PROCEEDINGS

10Before addressing each of these arguments, I briefly set out the history of the proceedings in this matter.

11The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability in the provision of goods, services or facilities. The applicant receives loss of earnings benefits from the respondent, the Workplace Safety and Insurance Board (“WSIB”). He alleged that the respondent discriminated against him on the basis of his disability because it refused to deposit his benefits directly into his bank account.

12The Tribunal held a summary hearing in this matter on October 17, 2011. Following the summary hearing, I issued an Interim Decision dismissing the Application in part: 2011 HRTO 2152. At that stage of the proceeding, the applicant’s representative presented his theory of the case as follows:

a. direct deposit has been available in Canada since 1990 and other organizations make direct deposit services available;

b. the respondent has made direct deposit available to employees and to some benefits recipients, based on the date of their eligibility for benefits;

c. the failure to provide direct deposit services to the applicant creates an undue hardship for him.

13I dismissed the first argument, holding that, in considering whether the respondent discriminated against the applicant, it is entirely immaterial that other entities offered a service that the respondent did not (at para. 22). I dismissed the second argument because I found that difference between the applicant and other benefit recipients was not a distinction on the basis of disability or any other ground of discrimination prohibited under section 1 of the Code but a distinction based on the fact the applicant was not in receipt of the benefit in the 1980’s, when he alleged direct deposit was available (at paras. 27-28).

14In regards to the applicant’s undue hardship argument, I wrote (at para. 30):

The applicant’s argument on this issue is somewhat difficult to make out. As I understand it, he argues that, because his disability limits his mobility, he does not have access to benefits in the same way or to the same extent as other injured workers whose injuries do not limit their mobility. While the applicant and his representatives use the term “undue hardship”, the substance of the applicant’s argument appears to actually be about equal access to benefits.

15In my Interim Decision following the summary hearing, I held that the Application could proceed on the following issue only:

Did the respondent’s failure to provide direct deposit services to the applicant amount to constructive discrimination or otherwise discriminate against him on the basis of disability because the applicant did not have the same access to benefits as injured workers whose mobility is not limited?

16The merits hearing took place on October 19, 2012. At that time, I heard evidence from the applicant and from a witness for the respondent. I declined to hear evidence from a further witness proposed by the applicant because it was not relevant to the sole remaining issue before the Tribunal.

ANALYSIS

The nature of the hearing

17In his Request for Reconsideration, the applicant’s representative writes:

Furthermore, the applicant was under the impression that as the hearing was called a Merits hearing, it was to determine whether the evidence was sufficient to warrant a full Human Rights Tribunal Hearing, with proper notice being given.

18Later in his submissions, the representative submits:

Had the applicant been aware that this was to be the final hearing, the applicant could and would have proven that the amount of $1,800.00 that was misappropriated from his bank account was, in fact, grossly underestimated.

19He also states that an additional witness would have established that the applicant’s total loss amounted to $20,000.00. According to the applicant’s representative, “this evidence was not provided at the Merit hearing as the applicant’s former live-in partner (the mother of the individual who took the money) was to be called as a witness before the Human Rights Tribunal of Ontario during a full hearing of the case.”

20I cannot accept that the applicant’s representative could not reasonably appreciate that the October 19, 2012 hearing was for the purposes of fully determining the merits of the matter. Nor do I accept that he could reasonably have understood that, after October 19, 2012, he would have a further opportunity to present evidence to establish loss or discrimination. In any event, I am not satisfied that this would be a basis to reconsider the Decision.

21At the October 19, 2012 hearing, the applicant’s representative presented witnesses, one of whom (the applicant) was permitted to testify. The applicant’s representative is a trained paralegal and provided the Tribunal with a Law Society of Upper Canada number. At the hearing, he was given an opportunity to pose questions about the proceeding.

22At the hearing, the representative did not make any requests for adjournments or for bifurcation of the hearing or imply in any way that he wished to call evidence at a later date. Moreover, nothing in the representative’s submissions, questions or presentation of evidence suggested that he was seeking a further opportunity to present additional evidence. In light of the Tribunal’s Rules of Procedure, the fact that the matter had already been addressed at a summary hearing, and the fact that the applicant’s representative called evidence at the hearing and did not indicate that he wished to call further evidence at later date, I do not accept that the representative could reasonably have believed that there would be any further opportunity to present evidence following the merits hearing of October 19, 2012.

23In any event, as I have indicated, a Request for Reconsideration is not an opportunity for a party to repair deficiencies in the presentation of its case. I do not agree that the possibility of another witness providing evidence is a basis to reconsider the Decision. Based on the applicant’s representative’s submissions in support of the Request for Reconsideration, it is not at all clear to me that this evidence was “new” within the meaning of Rule 26.1 or that it was unavailable to the applicant at the time of the hearing. Finally, there is no basis to conclude that this additional witness’ evidence would have been determinative of the damages issue. Her prospective evidence, as described by the applicant’s representative, appears to conflict with the evidence the applicant gave at the October 19, 2012 hearing.

Evidence of systemic discrimination

24The Application contains no allegation of systemic discrimination and no such argument was advanced at the summary hearing. Nevertheless, the applicant’s representative sought to call evidence at the hearing to establish systemic discrimination. I denied this request and, at paras 19-21 of the Decision, I wrote:

At the hearing on October 19, 2012, the applicant’s representatives sought to argue discrimination because the respondent provided direct deposit services to recipients of some types of benefits and not to others. In support of this, they sought to lead the evidence of Mr. Hudon, an individual who receives pension benefits from WSIB and whose benefits have been deposited directly into his account for some time.

After hearing submissions from the parties regarding the proposed evidence of Mr. Hudon, I declined to hear his evidence. I found that it was not relevant to the sole outstanding issue before me and that, in any event, much of his proposed evidence was not in dispute. For example, the respondent acknowledged that recipients of pension benefits had access to direct deposit, while, until 2010, [loss of earnings] recipients did not.

As I have indicated, following the summary hearing, I held that the Application could proceed on the sole issue [set out above]. At the summary hearing, the applicant had an opportunity to advance arguments in support of his claim and to explain why the matter should proceed. It is not open to the applicant, at this late stage of the proceeding, to re-litigate issues that have been decided or to seek to introduce new arguments.

25While it is clear that the applicant disagrees with these findings, he has presented no basis to reconsider them. The arguments advanced in support of the Request for Reconsideration were made at the hearing and have been addressed in the Decision.

Application of torts principles

26In the Decision (at paras. 40-41), I wrote:

At the hearing, the applicant’s representatives argued that all these damages flow from the alleged discrimination because, but for the respondent’s failure to provide a direct deposit service, the applicant would not have been robbed, would not have declared bankruptcy, would not have incurred NSF fees, and would not have had to reimburse creditors. I understood them to also argue that the applicant’s common law relationship would not have broken down but for the discrimination. In support of these arguments, the representatives cited cases on negligence and the Crown’s duty of care, as well as a text on negligence.

The principle underlying the Tribunal’s remedial jurisdiction is to put the applicant in the position he would have been but for the discrimination and I have applied this principle in my assessment of damages. Again, the law of negligence of the duty of care of the Crown do not generally apply in Tribunal matters and the applicant’s representatives did not explain how submissions on these issues could assist me in determining the issues before me.

27The applicant’s representative argues that I erred because I did not apply torts law principles in calculating human rights damages. In support of this argument, he cites Ronald Phipps v. Toronto Police Service Board, Michael Shaw and William Blair (“Phipps”), 2009 HRTO 1604, upheld 2010 ONSC 3884. In that case, the Tribunal found that a particular statute imposing liability for a tort does not prevent a party from being named in non-tort actions.

28Phipps does not conflict with or even relate in any way to the Decision. Further, Phipps in no way supports the applicant’s contention that torts principles apply to the determination of human rights damages.

DECISION

29For all of these reasons, the Request for Reconsideration is denied.