HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Misulki Gleeson

Applicant

-and-

Kingdom Hotel Toronto Ltd. and United Food and Commercial Workers International Union, Local 333

Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: January 27, 2014

Citation: 2014 HRTO 105

Indexed as: Gleeson v. Kingdom Hotel Toronto

APPEARANCES

Misulki Gleeson, Applicant

Doug McLeod, Counsel

[1] On December 3, 2013, the Tribunal issued its Interim Decision in this Application, 2013 HRTO 2002, dismissing the Application. The applicant has asked the Tribunal to reconsider its Interim Decision.

[2] In the Interim Decision I dismissed this Application pursuant to s. 45.1 of the Code because in my view its substance had been appropriately dealt with in another proceeding.

[3] In her Request the applicant argues that the Request should be granted because:

a. The Decision is in conflict with established jurisprudence and the proposed reconsideration involves a matter of general or public importance; or

b. Other facts exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

DECISION

[4] Under 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.

[5] The 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.

6The 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.

7As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

[8] I find that the applicant has not met the burden of establishing that the Interim Decision is inconsistent with Tribunal jurisprudence or that there are other factors which outweigh the public interest in the finality of Tribunal decisions.

[9] By way of brief background the applicant amongst many other employees lost her long standing employment with the respondent hotel. Pursuant to an agreement between the hotel and her trade union she was entitled to enter a competition for a position with the hotel in a new location. She was in effect entitled to apply for a position the same as or similar to that which she had been doing for decades. The seniority she had with the hotel would have quite diminished significance in this process. As I described it in the Interim Decision the hotel did not want good employees it wanted the best. The applicant was unsuccessful in this process. As part of the process an employee who felt aggrieved by the result of the competition could take their grievance to a Review by an experienced labour arbitrator. The arbitrator had the authority to “ensure that the criteria used by the Hotel (for the job selection of the individual) was applied equally”. The applicant appeared before the arbitrator and made essentially the same allegations in the review process as she made in this Application. In the result the arbitrator concluded that there had been no discrimination in the application of the selection criteria to the applicant.

[10] The essence of the applicant’s argument is that the Review process was procedurally unfair and that unless the trade union makes an application for judicial review there will be no adjudication of that issue. This is essentially the same argument that was made at the hearing. In Sigrist and Carson v. London District Catholic School Board, 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

[11] Nonetheless I have considered the applicant’s submissions and do not find them persuasive.

[12] The applicant argues that the Interim Decision is in conflict with established jurisprudence on procedural fairness and natural justice. The applicant relies on the test set out in Figliola v. British Columbia (Workers Compensation Board) 2011 SCC 52. but argues that knowing the case you have to meet requires knowing the information or evidence upon which the decision will be based and that natural justice requires that the applicant have an opportunity to call witnesses and cross-examine witnesses. The applicant also argues that while I had reviewed an audio recording of the Review hearing I did not refer to what are said to be clear indications of procedural unfairness and denials of natural justice.

[13] The applicant argues that this is a case where the Tribunal should exercise its discretion because there are issues of procedural fairness that cannot be addressed in another forum, including by judicial review. This is so says the applicant because her trade union had carriage of the grievance and only her trade union can seek judicial review of the decision from the other proceeding.

[14] I am not convinced that the conclusion reached in the Interim Decision is in conflict with established jurisprudence. The Tribunal stated in Sigrist and Carson, above that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the applicant clearly disagrees with my conclusion, she points to no clear and surprising departure from the established legal rules with respect to the application of section 45.1.

[15] I note that in 2013 HRTO 818 (reconsideration denied in 2013 HRTO 1225) the Tribunal came to the same conclusion in a case involving another employee who filed a grievance and sought Review before the arbitrator. I found that the cases were indistinguishable and I agreed with and adopted the reasons in that Decision. I am also not persuaded by the applicant’s argument that the Interim Decision represents a departure from a settled understanding of the content of procedural fairness and natural justice. As I noted in the Decision the review process was clearly an expedited one and quite different from many forms of adjudication but it is not clear how, based on the material before me, how the applicant did not know the case she had to present to the arbitrator and indeed she made the same allegations almost word for word that she made in the Application. The reviewer heard those allegations and then heard the evidence of the hotel with respect to the selection criteria and the applicant’s failure to meet the standards expected. As I noted in the Decision while a stripped down process it was more fulsome than the summary hearing process employed by the Tribunal in many cases. Most importantly as I concluded in the Interim Decision the applicant had a choice of forum in which to proceed and must accept the consequences of that choice.

[16] As regards the public interest argument I do not see how the particular issues the applicant might wish to raise about the review process is any different in principle from any other case where an applicant received a negative result in the other proceeding. When considering the situation of a grievance arbitration the trade union does have carriage of the grievance and as I understand the current state of the law the grievor/applicant does not have standing to bring an application for judicial review of the arbitrator’s decision. In my view this procedural consequence of the applicant’s choice of forum is one of the factors that should be considered by an aggrieved employee covered by a collective agreement. There are advantages and disadvantages of the choices available to an employee covered by a collective agreement, however that should not change the fundamental principle that a responding party should not have to respond to the same issues and allegations in two proceedings.

[17] For these reasons I find 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 Interim Decision. The Request is denied.