Gahagan v. James Campbell Inc., 2014 HRTO 339

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cathy Gahagan

Applicant

-and-

James Campbell Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: March 12, 2014

Citation: 2014 HRTO 339

Indexed as: Gahagan v. James Campbell Inc.

WRITTEN SUBMISSIONS

Cathy Gahagan, Applicant

Self-represented

Introduction

1These Applications, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleged discrimination with respect to employment because of disability and reprisal. The applicant alleged the respondent discriminated against her when it failed to accommodate her physical restrictions and when it terminated her employment as a form of reprisal. The Applications were consolidated by the Tribunal. The consolidated Application proceeded to a hearing on October 7 and 8, 2013.

2By decision 2014 HRT0 14 (the “Decision”), the Tribunal dismissed the Application. The Tribunal held the respondent successfully defended the Tribunal’s finding of discrimination under section 17 of the Code by establishing the applicant could not perform the essential duties of her job with accommodation. The Tribunal held further that the applicant’s employment was terminated because the respondent believed her contract of employment was frustrated and not because the applicant filed the Application before the Tribunal.

3On February 6, 2014, the applicant filed a Request for Reconsideration on the basis that there were new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier. With the Request for Reconsideration, the applicant filed: (a) the respondent’s Quality in Employment Policy; (b) a letter dated November 28, 2005 recognizing the applicant as an Employee of the Year; (c) the applicant’s résumé; (d) a document from the Canada Pension Plan (“CPP”) indicating that the applicant was allowed to earn up to $5,000.00 in allowable earnings; and (e) various documents from the applicant’s WSIB file, including a report dated July 15, 2011 from Northern Lights on the applicant’s employment placement status.

decision

4The Request for Reconsideration is denied.

analysis

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. Rule 26 of the Tribunal’s Rules of Procedure states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days from 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 HRTO. 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.

8In the Request for Reconsideration, the applicant relies on a Return to Work memo by a return to work specialist with the Workplace Safety Insurance Board (“WSIB”) dated November 11, 2009. This memo was filed into evidence at the hearing and is not new evidence. The applicant also relies on a WSIB Return to Work Discharge Summary dated September 21, 2010. This report was not filed into evidence, but is contained in the applicant’s WSIB file that was produced by the applicant and filed with the Tribunal. There is no explanation from the applicant as to why this document was not filed into evidence.

9Both of the WSIB documents confirm that the respondent took the position with the WSIB that it could not accommodate the applicant and that it refused to allow the WSIB to examine the respondent’s workplace to determine whether the applicant could be accommodated.

10In the Decision, I found the respondent discriminated against the applicant when it failed to engage in any accommodation process. Having found discrimination, I then turned to the respondent’s defence under section 17 of the Code that the applicant was unable to perform the essential duties of her position, with accommodation. I found that because of the nature of the applicant’s physical limitations and the work space around the grill, she could not perform her grill job with accommodation. I found further that the applicant could not perform the alternate position of cashier because it involved the job of runner, a physically demanding job. Finally, I rejected the applicant’s argument that accommodation required the respondent to hire a shadow to help her do her job. As a result of these findings, I held the respondent had established a defence to the finding of discrimination under section 17 of the Code and dismissed the Application.

11The WSIB documents relied upon by the applicant in the Request for Reconsideration are relevant to the question of whether the respondent discriminated against the applicant for failing to engage in an accommodation process. I have already found that it did. The documents do not relate to the applicant’s capacity to work and my finding that the respondent established that she could not perform the essential duties of her job, with accommodation. The remaining documents filed by the applicant are not relevant to the issues in this case. For example, the fact that the applicant could earn up to $5,000.00 while on CPP disability benefits is not relevant to the question of whether she could do her job with accommodation. Further, the fact that the applicant was recognized as an Employee of the Year is not relevant because there is no dispute the applicant was a very valued and skilled employee.

12The Request for Reconsideration is essentially an attempt by the applicant to re-argue matters that were already presented or argued at the hearing. In my view, the applicant has provided no reason to conclude that compelling and extraordinary circumstances exist that outweigh the public interest in finality of decisions. The Request for Reconsideration is denied on that basis.

ORDER

13The Request for Reconsideration is dismissed.