Robert Pando v. College of Applied Arts and Technology Pension Plan, 2014 HRTO 254

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Pando Applicant

-and-

College of Applied Arts and Technology Pension Plan Respondent

RECONSIDERATION DECISION

Adjudicator: Kathleen Martin Date: February 25, 2014 Citation: 2014 HRTO 254 Indexed as: Pando v. Colleges of Applied Arts and Technology Pension Plan

WRITTEN SUBMISSIONS BY

Robert Pando, Applicant ) Self-represented

1These are two Applications made under the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Tribunal File 2009-01513-I is an Application filed February 27, 2009, under section 34 of Part IV of the Code. Tribunal File T-0199-08 is an Application arising from a complaint originally filed with the Ontario Human Rights Commission which was brought before the Tribunal on September 8, 2008, through an application made under section 53(3) of the Code. By Decision dated March 19, 2013, 2013 HRTO 465, the Tribunal dismissed both Applications.

2The applicant filed a Request for Reconsideration (the “Request”). The Tribunal did not require that the respondent file a Response.

3This is the Tribunal’s decision on the Request.

RECONSIDERATION OF A TRIBUNAL DECISION

4Section 45.7 of the Code provides the Tribunal with the authority to reconsider its decisions:

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 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). Rule 26 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.

THE REQUEST FOR RECONSIDERATION

8The applicant has filed lengthy written submissions detailing the basis of the Request. The applicant relies on the criteria in Rule 26.5 (c) and (d).

9Among other things, the applicant submits that the Tribunal’s finding that he had failed to make out a prima facie case of discrimination based on disability because he did not establish that he was disadvantaged by the respondent’s one-day policy is inconsistent with established case law, an oral ruling made during the proceeding and the evidence of one of the respondent’s witnesses.

10In addition, the applicant makes a number of other submissions which appear to be in support of his contention that there are other factors that outweigh the public interest in the finality of decisions. The applicant submits that the Decision was unfair and unjust because it relied on the applicant’s oral evidence (which the applicant states was found to be “vague”) instead of relying on the applicant’s written evidence (in particular the applicant’s request for accommodation dated November 5, 2007) for the purpose of determining whether or not the applicant had established a prima facie case of discrimination.

11Further, the applicant submits that the Tribunal Decision should be reconsidered because it failed to address allegations made by the applicant including that the respondents failed to meet its procedural and substantive duty to accommodate him and that the “policy” discriminated against him under s. 1, 9 and 11 of the Code.

DECISION

12I am not satisfied that the Decision is in conflict with established jurisprudence or Tribunal procedure or that there are other factors that outweigh the public interest in the finality of decisions.

13In support of his argument that the Decision conflicts with established jurisprudence the applicant refers to the Supreme Court of Canada decision in Ontario Human Rights Commission v. Simpson-Sears Ltd. (“O’Malley”), 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, and its articulation of the test for establishing a prima facie case of discrimination and the Tribunal decision in Lane v. ADGA Group Consultants Inc., 2007 HRTO 34. The applicant appears to rely on these decisions in support of his position that an applicant is not required to establish that s/he has been disadvantaged by the policy or action complained about. Rather, the applicant submits that it was sufficient to assert that he had a disability and required accommodation before the onus was shifted to the Plan to accommodate him, which in the applicant’s view he did by his letter dated November 5, 2007 (referenced in the Decision at para. 19).

14I do not find that the decisions relied on stand for the proposition advanced. In O’Malley, the Supreme Court of Canada addressed the issue of “adverse effect discrimination” (including whether intention was a necessary element of discrimination and where a prima facie case was established, which party bore the onus with respect to accommodation). Notably, in O’Malley, there was no question that the rule regarding work on Saturdays had an adverse effect on the complainant (see para 3). In fact, after setting out the oft-cited quote relied on by the applicant as the test for establishing a prima facie case of discrimination, the Supreme Court of Canada made it clear that the duty to accommodate arises only where adverse effect discrimination is established. The Court states:

…Where adverse effect discrimination on the basis of creed is shown and the offending rule is rationally connected to the performance of the job, as in the case at bar, the employer is not required to justify it but rather to show that he has taken such reasonable steps toward accommodation of the employee’s position as are open to him without undue hardship…(emphasis added)

15I also do not find that the Decision is inconsistent with Lane.

16The applicant references paragraph 25 (incorrectly referred to as para. 29) and paragraph 145 in Lane. In the former, the Tribunal addressed the test to be applied on a motion to dismiss a complaint after hearing only the complainant’s evidence and stated “…the only appropriate question is whether there is some evidence on each of the components of the Complaint that there has been a violation of the Code”. In the latter reference, the Tribunal stated that the applicant had “fulfilled his obligations by identifying the nature of his illness and asking (with suggestions) for accommodation”.

17The applicant submits that these references establish:

… that the key components and required evidence only involve identifying the nature of the disability and asking with suggestions for accommodation. Under Lane, there was no requirement to establish that I had the disabilities I alleged when making my request for accommodation; and there was no requirement to establish a distinct disadvantage because of my disabilities…Those requirements ought to be established, or not, as a result of the Plan fulfilling it [sic] procedural investigation duties which it failed to do”.

18I disagree with the applicant’s submission to the extent he suggests that if he identified the “nature” of his disability and asks for accommodation, he has proven that he has been disadvantaged by the policy in question. Neither of the references stands for the proposition that an applicant need not prove that he has a disability and that the action complained of disadvantaged him. As noted above, paragraph 25 addresses a motion to dismiss made only after the complainant had presented his evidence. After hearing all the evidence, the Tribunal in Lane expressly considered whether or not discrimination had been proven and found that the applicant had a disability (para. 135) and that the applicant had been dismissed because of his disability and perceptions as to the impact of that disability on workplace performance (para. 136). As for the reference in paragraph 145, this was made in the course of the Tribunal’s consideration of the duty to accommodate (and not whether or not the applicant had established a prima facie case of discrimination).

19I note that Lane was affirmed by the Divisional Court (ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC)). In that case the Court affirmed the need for an applicant to establish a prima facie case of discrimination at paragraph 96. The Court stated that such a case is made out when an applicant establishes that the disadvantage (being terminated) was because of, or in part because of, their disability. It was clear in Lane that the applicant had established that he had a disability within the meaning of the Code.

20Further, the applicant asserts that the Tribunal’s Decision is inconsistent with an oral ruling made during the hearing and that this justifies reconsideration. In particular, the applicant states that “during the first hearing day”, the Tribunal “addressed to the parties a comment to the effect that when the Tribunal first read my complaint it seemed to be a clear case of discrimination until the response of the respondent was read and then it was not so clear”. The applicant submits that it is in the public interest not to maintain the finality of this Decision which reverses an oral finding by the Tribunal in his favour and then apply a much higher level of proof in the Decision.

21While I appreciate the applicant has qualified his recollection (by stating “a comment to the effect”), I have no record of the alleged comment being made. Moreover, I confirm that at no time did the Tribunal make an oral ruling that the applicant had established discrimination. In fact, on the first day of hearing, the Tribunal addressed a number of preliminary issues and made oral rulings on several of these issues. A subsequent Case Assessment Direction dated October 19, 2010, issued after the first day of hearing, confirmed the rulings made and at paragraph 9 stated:

The above directions do not in any way constitute a finding of whether the applicant required accommodation by the respondent in respect of his inspections in 2007 and 2008, or if he did, the nature of the accommodation required.

22This reference makes it clear that the issue of whether or not the applicant could establish discrimination (such that accommodation was warranted) remained an outstanding issue in the hearing.

23Further, at the outset of closing submissions, I directed the parties to address in their submissions whether or not there was a breach of the Code and identified that as encompassing whether or not the applicant had a disability, whether or not he experienced adverse treatment and whether there was a nexus between his disability and any adverse treatment. I also asked the parties to address the issue of accommodation.

24The applicant also seeks reconsideration on the basis that the Tribunal Decision omits reference to one part of a witness’ evidence; evidence which the applicant states establishes the “key prima facie component” of the case. The applicant states that the “failure” to include this evidence denied him access to the Tribunal’s mandate that its decisions be fair and just and determined on the merits. The applicant also submits that it is not in the public interest that the Tribunal make findings that are inconsistent with the evidence before the Tribunal or permit a party to advance a position (as the respondent did in this case) which is contrary to the evidence of one of their witnesses.

25I agree that at one point the witness in question acknowledged that the respondent had accepted that the applicant had “legitimate issues” which required “accommodation”. In fact, the witness went on to state that that is why the respondent said it “would deliver the stuff” (referring to the respondent’s offer to deliver photocopies of pension documents). However, I do not find that the omission of this evidence from the Decision is a basis for reconsideration. First, I do not interpret this evidence as establishing that the applicant was disadvantaged by the one-day policy in the manner that the applicant alleged, as the acknowledgement of a legitimate issue and an offer of a form of accommodation is not the same as agreeing to the nature of disadvantage asserted by the applicant. Second, as the applicant notes in his Request, the respondent’s position in the hearing remained that the applicant had not established that he was discriminated against. As reflected in para 4. of the Decision while the respondent stated that the applicant may have certain medical conditions, which qualify as a disability, the respondent submitted that the applicant had not established a nexus between those conditions and any restriction imposed on him.

26Finally, and most importantly, based on all of the evidence and submissions, the Tribunal must reach its own conclusion as to whether or not the Code has been violated. In the Decision, I found that the applicant had failed to establish that he was disadvantaged by the one-day policy.

27The applicant also submits that the Tribunal should reconsider its Decision because its findings contradict the written evidence. Among other things, the applicant refers to the Tribunal’s consideration of the applicant’s oral evidence (which the applicant states was found to be “vague”) and argues that his written evidence should have been considered because that was the request he made. The applicant submits that no matter how vague his oral evidence, his clear written evidence was for “3 full days” and ought to have been the “best evidence relied on by the Tribunal”.

28The written and oral evidence in respect of the inspections at issue in the Applications is summarized in paragraphs 19-27 inclusive. The Decision had regard to both the written evidence and oral evidence. For example, in the course of making findings in respect of the 2007 inspection (which appears to be the incident of concern to the applicant), the Tribunal had regard to the written request (para. 35) and the oral evidence (para. 37 and following) in reaching its conclusions. In the circumstances, I do not find that the applicant has provided any reason to justify reconsideration.

29Further, the applicant submits that reconsideration is warranted because the Tribunal failed to address the issues of alleged discrimination that he raised in the Applications; namely, that the respondent failed to accommodate him and that the imposition of the policy governing inspections discriminated against him irrespective of his efforts to inspect pension records in 2007 and 2008.

30Addressing first the question of accommodation, given the Tribunal’s Decision, it was unnecessary to consider the issue of accommodation. While I can appreciate that the applicant wanted a determination on that issue given his perspective of the case, in my view, the Tribunal is not required to make findings that are unnecessary to its decision in a case.

31In addition, the applicant submits that the Tribunal failed to consider his argument that the imposition of the policy discriminated against him on the basis of section 1, 9 and 11 of the Code. While I have some difficulty understanding the applicant’s claim, it would appear that the applicant submits that the Tribunal should have addressed as a separate issue of whether or not the imposition of the policy in 2006 disadvantaged him (irrespective of his attempts to actually inspect the pension plan in 2007 and 2008). The applicant states at para 128 of the Request:

I argued that as a member of the group the policy “generally” applied to, the one day restriction disadvantaged me distinctly, because of my disabilities respecting any inspection request I would make as the above nexus established; and that the policy discriminated against me.

32While the Tribunal may not have addressed the applicant’s issue as the applicant specifically framed it, the Tribunal did address the central issue of whether or not the policy disadvantaged him when he attempted to conduct an inspection. In setting out the legal framework, the Tribunal specifically referenced sections 1, 9 and 11 of the Code and framed the first issue as whether or not the applicant had established a prima facie case of discrimination by treating him in a distinct and disadvantageous manner because of disability (i.e. s. 1); or that a requirement, qualification or factor had a distinct and disadvantageous effect on him because of disability (s. 11). The Tribunal made a Decision on this issue. While it is clear the applicant is not pleased with this Decision, I find that the central issue of whether or not the applicant was discriminated against was addressed.

33To the extent the applicant is asserting that the Decision should be reconsidered because it did not address whether or not the introduction of the policy alone is a separate infringement before it was applied to him, I disagree. In the present circumstances, I do not find that the applicant can be disadvantaged by a policy without it being applied to him in a given circumstance. This was addressed in the Decision in respect of the applicant’s effort to inspect the pension plan documents in each of the years complained about.

34While I have considered the applicant’s remaining submissions, I do not find it necessary to address each of the other points raised. Suffice to say, the applicant generally disputes the findings made and legal conclusions reached. As is apparent from the Practice Direction, reconsideration is not available simply because a party disagrees with the Tribunal’s decision and is not an opportunity to reargue the case.

35For all of the above reasons, I do not find that the applicant has provided any compelling reasons to justify reconsideration.

36The Request is dismissed.