HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anita Sharma

Applicant

-and-

Securitas Canada Ltd. and Milroy Mariampillai

Respondents

-and-

United Steel Workers, Local 5296

Intervenor

RECONSIDERATION Decision

Adjudicator: Ena Chadha

Date: May 14, 2013

Citation: 2013 HRTO 796

Indexed as: Sharma v. Securitas Canada Ltd.

written submissions

Anita Sharma, Applicant

Self-represented

Securitas Canada Ltd. and Milroy Mariampillai, Respondents

Daniel R. McDonald, Counsel

Angelo Foti, Affected Party

Lorenzo Lisi, Counsel

INTRODUCTION

1This Application was filed on April 5, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant was employed by respondent Securitas Canada Ltd. (“Securitas”) as a security officer. She was assigned by Securitas to work at the Redpath Sugar Ltd. (“Redpath”) location. The applicant alleged that in April 2009 she was subjected to sexual harassment by two co-workers (Rajanayaga Balaganthan and Motielall Ragnuth). The applicant alleged that during a telephone conversation on April 6, 2010 respondent Milroy Mariampillai, a Securitas manager, called her mentally ill and told her she needed psychiatric treatment. The applicant alleged that, also in April 2010, a Redpath manager (Angelo Foti) made a false complaint about her sleeping on the job requiring Securitas to remove her from the Redpath assignment. The applicant further alleged that her union president (Joe Bonsu) offered her $2000 as part of a settlement agreement to not go to the Tribunal, which she found to be an affront to her dignity.

3The Application originally named respondent Securitas, respondent Mariampillai, Rajanayaga Balaganthan, Motielall Ragnuth, Angelo Foti, the applicant’s union United Steel Workers, Local 5296 (“union”) and Joe Bonsu, as well as a Human Resources consultant with Securitas (Lee McGee).

4By way of Interim Decision 2013 HRTO 176, the Application was dismissed as against all the respondents, except Securitas and Mariampillai and the union was granted intervenor status. The Tribunal determined that it lacked jurisdiction over all aspects of the Application that related to events prior to April 5, 2010 because of delay. Accordingly, the allegations regarding the events prior to April 5, 2010, specifically as against Securitas, Balaganthan and Ragnuth, were dismissed. The Tribunal further concluded that the allegations as against the union and the individual respondents Foti, Bonsu and McGee must also dismissed as having no reasonable prospect of success because the applicant was unable to demonstrate a link between the Code and the alleged actions.

5This Reconsideration Decision addresses the applicant’s request to reconsider the Tribunal’s Interim Decision dismissing parts of the Application for untimeliness and as against certain respondents for no reasonable prospect of success.

ANALYSIS & DECISION

6I note that there appears to an issue with respect to the timeliness of the applicant’s reconsideration request. It appears that the Tribunal’s Interim Decision may not have been delivered to the applicant’s current address. The applicant claims she received the Interim Decision about one month after it was issued. As such, I will proceed to consider the applicant’s request to reconsider.

7Rule 26.5 of the Tribunal’s Rules of Procedure provides 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;

(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;

(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 and orders.

8The Tribunal’s Practice Direction on Reconsideration states the following:

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.

9The applicant’s request for reconsideration asserts that the Tribunal’s Interim Decision is “unjust and incorrect”. It appears that the applicant is arguing that the Interim Decision conflicts with established case law and/or that the reconsideration involves a matter of public importance. In summary, the applicant’s reconsideration arguments are as follows:

a) Since Motielall Ragnuth did not participate in the teleconference hearing and did not deny the sexual harassment allegations, the Tribunal was incorrect in dismissing the case as against him;

b) The Tribunal was incorrect in dismissing the case as against Rajanayaga Balaganthan;

c) The applicant provided sufficient medical evidence and the Tribunal was incorrect in concluding that the medical documentation was insufficient;

d) The applicant has a witness to support her allegation regarding the telephone conversation on April 6, 2010 with respondent Mariampillai; and

e) The Tribunal was incorrect in dismissing the case as against Angelo Foti and did not consider the applicant’s evidence and arguments in support of her allegations that Foti discriminated against her.

10The respondents Securitas and Mariampillai, as well as the former respondent Foti, oppose the applicant’s reconsideration request. They submit that the applicant is simply attempting to relitigate her case and there is no basis for reconsideration.

11With respect to the applicant’s points (b), (c) and (e), I agree with the respondents that the applicant’s submissions simply attempt to reargue the issues that were heard in the teleconference hearing and determined in the Interim Decision.

12I find that the applicant’s reconsideration request reiterates many of the same arguments that she advanced in her written and oral submissions previously considered by the Tribunal in reaching its Interim Decision. The applicant has not pointed to any new information that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

13With respect to the applicant’s point (a), it appears that she seeks to impugn the Interim Decision on the basis that Ragnuth did not deny the allegations of sexual harassment. The Tribunal again reminds the applicant that the allegations as against Motielall Ragnuth were dismissed not on the basis of the strength or weakness of the evidence regarding the merits of the sexual harassment allegations, but rather because those allegations were out of time under section 34 of the Code. The Tribunal determined that it did not have jurisdiction over the allegations against Balaganthan and Ragnuth because of delay. Consequently, the applicant’s contention that the Tribunal must accept the allegations of sexual harassment against Ragnuth because he was not present to refute the claims does not apply to the analysis of delay.

14With respect to the applicant’s point (d) regarding the availability of a witness to support the alleged April 6, 2010 discriminatory remarks, it is unclear on what basis the applicant is challenging the Interim Decision. The Tribunal reminds the applicant that the Interim Decision concluded that the Application as against respondents Securitas and Mariampillai regarding the April 6, 2010 incident will proceed. As such, the Tribunal ordered the applicant to confirm whether she sought to pursue disability as a ground of discrimination and scheduled a mediation between the applicant and respondents Securitas and Mariampillai for June 12, 2013.

15The applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Interim Decision. There are no new facts or evidence that could potentially be determinative of the case and the applicant’s request does not raise issues of general importance nor outweigh the public interest in the finality of Tribunal decisions. The applicant has not cited any point where the Interim Decision conflicts with established case law or Tribunal procedure. Accordingly, the Tribunal denies the applicant’s request for reconsideration.

ORDER

16The request for reconsideration is denied.

17Pursuant to paragraph 56 of the Interim Decision, the applicant was required to write to the Tribunal, copied to the respondents, confirming whether or not she alleged discrimination on the basis of disability with respect to the April 6, 2010 incident. It appears that, thus far, the applicant has failed to confirm the nature of her claim. If, within 14 days of the date of this Reconsideration Decision, the applicant does not write to the Tribunal, copied to the respondents, confirming her intentions with respect to whether or not she alleges disability discrimination, the Application may be dismissed as abandoned.

18I am not seized.