Brenda Palmer v. Canadian Institute for Health Information, 2013 HRTO 824

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brenda Palmer

Applicant

-and-

Canadian Institute for Health Information, Patricia Sullivan-Taylor and Greg Webster

Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir

Decision Date: May 15, 2013

Citation: 2013 HRTO 824

Indexed as: Palmer v. Canadian Institute for Health Information

WRITTEN SUBMISSIONS

Brenda Palmer, Applicant

Self-represented

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of sex, disability and reprisal. This Decision deals with a Request for Reconsideration filed by the applicant.

2A hearing was held in this case on September 10 and 11, 2012. I heard the applicant’s evidence in chief. After a brief cross-examination the respondent sought an Order dismissing the Application that had lead insufficient evidence to establish a prima facie case of discrimination, or having heard the evidence of the applicant the Application had no reasonable prospect of success and should be dismissed for that reason. In order to afford the applicant an opportunity to address the issue raised by the respondent the applicant was given an opportunity to respond in writing. I received submissions from the applicant on October 2, 2012 to which the respondent responded. The applicant made further submissions on December 5, 2012 which were reviewed.

3The Application was dismissed on the basis that having heard the applicant’s evidence it had no reasonable prospect of success.

4Section 45.7 of the Code provides as follows:

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.

5The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a decision in accordance with Rule 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.

6It is also useful 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.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

7Reconsideration is a discretionary remedy. That is, while the Tribunal has the authority in certain circumstances to reconsider its own decisions, it is not obliged to do so. As is clear from the Code the Tribunal may decide when reconsideration of a Decision is appropriate, both through the making of rules governing the exercise of the discretion and in the determination on a case-by-case basis of how the rules will be applied.

8The applicant argues that the Decision is inconsistent with Tribunal procedure and jurisprudence and raises a matter of general public importance. The applicant also alleges that there is fresh evidence that was not available to her that may be determinative of the issues.

9The applicant made lengthy submissions in support of her Request, however for the most part it is a detailed analysis of how my findings of fact were incorrect. This is not a proper basis for reconsideration of a final decision.

10The Request is dismissed.

11The applicant argues that I did not follow Tribunal procedure in accepting the respondent’s document brief although filed late. It appears that this may be accurate however the receipt of the late documents did not effect in any way the outcome of the hearing which was determined largely because of the deficiencies of the applicant’s case.

12The applicant made a number of technical arguments related to the Summary Hearing process. Essentially the applicant argues that I did not follow the Summary Hearing procedure in Rule 19A. She is correct, but the respondents’ request that the Application be dismissed was made during the hearing and after hearing a substantial amount of evidence. Rule 19A does not apply to such circumstances and there was no need to utilize it. The applicant was given a full opportunity to respond to the issue raised by the respondent. There was no unfairness in the procedure followed.

13The applicant takes significant issue with my findings of fact. As indicated her submissions are a detailed analysis of many of the paragraphs of my Decision. For example the applicant continues to claim that a telephone message asking her to change her voice mail message was a command to come into the office while on a sick leave to change her voice mail. A request for reconsideration is not an opportunity to re-argue a case. I appreciate that the issue of this telephone message is important to the applicant. I also appreciate that she continues to disagree, however I have made my findings about that issue.

14The applicant argues that my conclusion that the termination of the applicant’s employment for performance issues was not a failure to accommodate in the circumstances is inconsistent with Tribunal jurisprudence. In my view it is not. The applicant appears to believe that because the employer was in the course of providing some accommodations, a mouse and a new keyboard, that they could not terminate her employment for reasons unrelated to the applicant’s alleged need for accommodation. This is not a correct statement of the law. As I said in the Decision an employer has an obligation to accommodate its employees but it is not obligated to maintain the employment of someone it intends to dismiss solely for the purpose of continuing the accommodation process.

15The applicant relies on a several new documents which she delivered and filed on December 5, 2012. These materials were not tendered at the hearing. It is not clear why the applicant was not able to provide them in a timely manner and I am not satisfied that they should be considered for that reason, however having reviewed them and the applicant’s submissions about them they do not appear to be potentially determinative of the issues raised in the Application.

16I am not satisfied that any of the factors set out in the Rule are present here and accordingly the Request for Reconsideration must be dismissed.