Banfill v. BASF Canada Inc., 2014 HRTO 1202

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Banfill

Applicant

-and-

BASF Canada Inc., Dean Clevett, G4S Secure Solutions (Canada) Limited and Robert Maiiloux

Respondents

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle

Date: August 11, 2014

Citation: 2014 HRTO 1202

Indexed as: Banfill v. BASF Canada Inc.

WRITTEN SUBMISSIONS

Christopher Banfill, Applicant

Self-represented

Introduction

1On February 14, 2014, the Tribunal issued its Decision in this Application, 2014 HRTO 216, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

background

2The Tribunal’s Decision found as follows:

• the Application was dismissed as being outside the Tribunal’s jurisdiction, as it was filed more than one year after the last alleged incident of discrimination and the applicant has not shown that the delay was incurred in good faith within the meaning of the Tribunal’s case law.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

b. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

4The Tribunal has not directed the respondents to file a Response to the Request for Reconsideration.

DECISION

5Under 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.

6The 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 last amended March 2010). 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.

7The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO 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 HRTO 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.

8As 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.

9I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

10As indicated above, the applicant relies on Rule 26.5 (c) and (d). He submits that the Tribunal did not properly consider his arguments regarding “fraudulent concealment”, discoverability and good faith. He also argues that in the Decision the Tribunal “introduced a new theory that was not mentioned” in the Notice of Intent to Dismiss (NOID), namely that there are “statements in [my] application that indicate a possibility that I was aware of my cause of action sooner than I claim and/or that I reasonably should have brought the case within one year of July 20, 2011”.

11In support of his Request, the applicant essentially repeats arguments made to the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

12The applicant makes reference to several court cases and submits that his Application should proceed “due to the dishonesty of the respondent”, as one of the respondents told him that his demotion in 2011 was not for Code-related reasons. He submits that the respondent’s alleged fraudulent concealment should “suspend the running of the limitation clock until such time as the injured party can reasonably discover the cause of action”.

13He also argues that the principle of discoverability should apply, as “[T]he new information that [the new employee] was interviewed and hired for my position allowed me to infer that my demotion occurred and was decided upon in a manner that was entirely different and for different reasons that what was advertised”.

14He argues that in his case, the Tribunal applied too restrictive a view of “good faith” in finding that the facts in his case did not indicate the “good faith” necessary to permit his Application to proceed.

15In his Application, the applicant indicates that the date of the last event was July 20, 2011. The Application was filed on November 6, 2013.

16The applicant’s narrative indicates that he was demoted from his job as supervisor and a new employee took over his duties effective July 20, 2011. He states that “Although I had no evidence of it at the time, I now contend based on the evidence discovered on August 6, 2013 that the decision to demote me was made prior to the events….that Bob was using as an excuse”. He goes on to recount, among other things, his communications with Bob Mailloux, the District Manager, regarding his demotion and the reasons for it, as well as his assertions to the District Manager regarding his suspicions that his rights under the Code were being violated.

17In its Decision, the Tribunal considered the effect of the alleged assertion by the District Manager that the applicant’s demotion was for non-discriminatory reasons. The Tribunal found that it was clear on the face of the Application that the applicant did not only come to believe in August, 2013 that he had been subject to discrimination with respect to his employment. The Tribunal found that according to his Application, he had come to believe that his demotion was for discriminatory reasons as early as July 12, 2011. At paragraph 27, the Decision states as follows:

In my view, the information the applicant received from the new employee about having been interviewed for the supervisory position, is not information that assisted him in discovering a potential case under the Code. Rather, it was evidence that in his view, supported his allegation of a violation of the Code.

18Though the applicant also submits that the Tribunal has been too restrictive in finding that his explanations for the delay and his assertion that he was attempting to investigate and pursue his rights in the period prior to the one year limitation period, do not demonstrate “good faith”, he essentially re-argues his position that the delay was incurred in good faith.

19I am not convinced that any findings made in the Decision are in conflict with established jurisprudence. The applicant refers in his Request to numerous court and tribunal decisions dealing with the general principles of discoverability and fraudulent concealment and how these doctrines relate to limitation periods. The allegations and facts asserted by the applicant in support of the applicability of these common law doctrines were analyzed in the Decision in the context of determining whether he had established good faith under section 34 of the Code.

20It is important to note that the issues raised in this Request were the subject of submissions to the Tribunal, and dealt with in its Decision. In 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

21As noted above, the applicant also submits that the Tribunal introduced “a new theory that was not mentioned” in the NOID, as it considers statements made by him in his Application. The Decision, however, notes that the NOID advised the applicant that it appeared that the Application is outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of discrimination described and advised him that he did not appear to have cited facts that constitute “good faith” within the meaning of the case law. It directed him to make written submissions on the matter. The applicant provided written submissions in which he addressed the issue of delay and cited several court and Tribunal decisions. The Tribunal considered the applicant’s submissions and in its Decision ultimately dismissed the Application “as it was filed more than one year after the last alleged incident of discrimination and the applicant has not shown that the delay was incurred in good faith within the meaning of the Tribunal’s case law”. The applicant had notice with respect to the issue he was required to address, and this was the basis on which the Application was dismissed. The NOID directed the applicant to provide his submissions, and indicated that the facts cited by the applicant in his Application were relevant to the determination of the issue of delay. The issue of delay and good faith required evaluating both his submissions and the original allegations made in his Application. The Decision made reference to statements made by the applicant in his Application and, in determining the issue of delay, has assumed the applicant’s own statements to be true. There is therefore no merit to his allegation that the Decision was based on new or unknown issues.

22While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that its submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence, nor has he established that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

23In sum, 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 Decision. The Request is denied.