Ronald Ihasz v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Revenue, 2014 HRTO 376

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ronald Ihasz

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Revenue

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: March 17, 2014 Citation: 2014 HRTO 376 Indexed as: Ihasz v. Ontario (Revenue)

APPEARANCES

Ronald Ihasz, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Revenue, Respondent

Paul Meier, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal or threat of reprisal. This Interim Decision addresses a Request for an Order During Proceedings filed by the applicant seeking the production of documents and for the Tribunal to conduct the hearing of this matter by “desk review”; the applicant’s request for adjournment of the hearing, scheduled on April 22 and 25, 2014; and provides direction regarding the respondent’s request for the Tribunal to declare the applicant to be a vexatious litigant.

2The background to the Application was summarized in Ihasz v. Ontario (Revenue), 2013 HRTO 2112 as follows, at paragraphs 2 and 3:

The applicant worked for the respondent as a Tax Administration Manager (“TAM”). The respondent identified the applicant as one of its employees to be transferred to the Canada Revenue Agency (“CRA”) as part of the Harmonized Sales Tax initiative. The transfer process was delayed because the applicant went on a disability leave and ultimately not completed because the applicant did not meet the CRA’s criteria for employment.

In the Application, the applicant states that the respondent informed him that his claim for long term disability benefits had been denied on January 20, 2012. As a result, the applicant decided to return to work. The applicant alleges that the respondent by designated him as surplus, on January 26, 2012, instead of accommodating by him placing him in a TAM position, as he requested.

3The procedural history of the Application is summarized in Ihasz v. Ontario (Revenue), 2013 HRTO 2112 and Ihasz v. Ontario (Revenue), 2013 HRTO 784 and need not be recounted here.

The Applicant’s Request

Disclosure / “Desk Review”

4In Ihasz v. Ontario (Revenue), 2013 HRTO 2112, the Tribunal denied the applicant’s request for production of document of which he learned pursuant to a request he made under the Freedom of Information and Protection of Privacy Act (“FIPPA”). The Tribunal summarized the applicant’s request as follows, at paragraph 5:

The applicant filed the Request on November 19, 2013 and the responded filed a Response to a Request for an Order on December 3, 2013. The applicant requests an order requiring the respondent to produce 2,001 e-mail messages from 2009 to present with his name on them. The applicant made the same request under the Freedom of Information and Protection of Privacy Act (“FIPPA”) and was advised that the search applying these criteria located e-mail messages totalling 3,649 pages. Access to some of the messages was denied under sections 17(2) and 65(6) of FIPPA because they related to tax information and labour relations or employment matters. Access was granted to 1,498 of the pages. The applicant submitted that he is confident that a large number of the e-mails to which he was not granted access are relevant to the issues in dispute in this Application and another application 2011-10019-I, which he withdrew.

5The Tribunal provided the following reasons for denying the applicant’s request, at paragraph 8:

The applicant has provided no basis for concluding that the documents he requested are arguably relevant. First, the scope of the request is indeed very broad and is well beyond the timeframe encompassed by the Application, i.e., the first few months of 2012. Second, the applicant’s bare assertion that he is confident that many of the documents request are relevant to this Application and his withdrawn application, i.e., 2011-10019-I, is not sufficient to establish that the documents may prove or disprove facts in issue in this dispute. Third, the applicant withdrew application 2011-10019-I and reconsideration of the Tribunal’s decision to grant the applicant’s Request to Withdraw was refused. See Ihasz v. Ontario (Revenue) 2013 HRTO 333, 2013 HRTO 333. Consequently, there are no live issues regarding the withdrawn application and whether some of the documents the applicant requested are arguably relevant to that application – which has not been established in any event – is entirely immaterial.

6The applicant’s request is a renewed request for the same documents. The applicant submits that his prior explanation may not have been detailed enough to permit the Tribunal and therefore provided additional submissions in support of his renewed request. The applicant provided a breakdown of the number of e-mail messages with his name on them held by four managers and a peer by year. For example, the applicant states that the applicant’s senior manager, Cathy Rae, was identified as having 97 such message in 2009, 294 in 2010, 656 in 2011 and 616 in 2012. The applicant submits that the other three managers, Mr. Grimsditch, Mr. Andersen and Ms. Wright are identified as having many e-mail messages with his name on them in 2009, 2010 and 2011. The applicant states that one of his peers, Ms. McDonough, has three messages about him in 2010. The applicant submits that Mr. Grimsditch, Mr. Andersen and Ms. Wright are motivated to retaliate against him because of human rights complaints/applications he filed in the past and that he would not have been selected for transfer to the CRA if not for the actions of Mr. Grimsditch and Mr. Andersen. The applicant states that Mr. Grimsditch, Mr. Andersen, Ms. Rae and another managerial employ did not accommodate him in 2010 and 2011.

7The applicant submits that the respondent should have applied the Employment Accommodation & Return to Work Operating Policy in his circumstances and did not have the right to declare him surplus or require him to participate in job competitions. The applicant submits that this policy applies to the Tribunal; therefore, the Tribunal can obtain a copy of it from Human Resources. The applicant submits the Tribunal can rule on this policy as it applies to him following a “desk review” without need for a hearing.

Adjournment / Accommodation

8In Ihasz v. Ontario (Revenue), 2012 HRTO 764, the Tribunal denied the applicant’s request to limit the duration of the hearing, to conduct the hearing by telephone and/or to change the venue of the hearing from Toronto to St. Catharines because the medical information the applicant provided was inadequate. In Ihasz v. Ontario (Revenue), 2012 HRTO 2112, the Tribunal ordered the Application to be set down for hearing, but stated as follows regarding accommodation, at paragraph 11:

The Tribunal is cognizant of the applicant’s disability and does not wish to deny an accommodation, if required, but requires sufficient information to grant any accommodation request. Accordingly, should the applicant require accommodation regarding the scheduling of the hearing the Tribunal requires an explanation of why the applicant’s disability requires any accommodation he may request. The Tribunal does not generally require that medical reports in support of a party’s request for accommodation before this Tribunal be disclosed to the other parties. Rather, the Tribunal would advise the respondent of the substance of any such documentation and would afford it with an opportunity to make submissions in response.

9On January 21, 2014, the Tribunal received a letter from the applicant’s doctor, dated January 10, 2014, confirming that the applicant was under his care and stated:

Due to medical reasons he (the applicant) is not capable of attending in person until further notice.

The respondent’s response

Accommodation / “Desk Review”

10The respondent submits that the applicant’s request amounts to a Request for Reconsideration of Ihasz v. Ontario (Revenue), 2013 HRTO 2112. The respondent submitted that the applicant did not file the request within the 30 day time limit for filing a Request for Reconsideration and did not provide an explanation for the delay. The respondent submits that the request does not meet any of the criteria for granting Reconsideration and, in any event, the applicant did not provide any basis for concluding that the documents he requests are arguably relevant. The respondent submits that the applicant’s request for the decision to render a substantive decision following a “desk review” is “more than unclear” and is not a proper interlocutory request.

Adjournment / Accommodation

11In a Case Assessment Direction dated February 19, 2014, the Tribunal informed the parties that it considered that the doctor’s letter provided by the applicant amounted to a request to adjourn the hearing indefinitely and directed the respondent to make submissions regarding the request. The respondent filed submissions on March 4, 2014 in which it submitted that the medical information the applicant provided provides no basis for an adjournment. The respondent submitted that the applicant must provide sufficient information to allow the Tribunal to make an informed decision regarding the scheduling of hearing dates, including: the accommodations, if any, that would permit the applicant to participate in a hearing and, if the applicant cannot participate in the hearing as currently scheduled, an estimate of when the applicant might be able to participate and any accommodation that would assist him.

Analysis and Decision

Disclosure

12I agree that the applicant’s renewed request for production of documents identified pursuant to the applicant’s FIPPA request is in effect a Request for Reconsideration. The circumstances in which Reconsideration may be granted are set out in Rule 26.5:

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.

13The 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.

14I also agree that the applicant has not established the criteria under Rule 26.5(a), (b) or (c), but I find, pursuant to Rule 26.5(d), that another factor, procedural fairness, exists that in my opinion outweighs the public interest in the finality of my decision denying the applicant’s request for these documents. The applicant also filed the request outside the 30 day time period set out in Rule 26.1, but in the circumstances I find it appropriate to exercise my discretion pursuant to Rule A4.2 of the Social Justice Tribunals Ontario Common Rules to vary or waive the application of any rule.

15The central allegation of this Application is that the respondent declared the applicant to be surplus when he returned to work in January 2012, rather than accommodating him by placing him in a TAM position. Ms. Rae, who the applicant states was his senior manager at the time, communicated this decision to him. The materials before me indicate that the applicant was placed on “duty assignment” at home, commencing January 30, 2012, for the six-month surplus notice period (which I understand was interrupted by the applicant commencing a medical leave). In other words, the applicant did not return to active employment and the only issue regarding his employment, at least in early 2012, appears to have been his surplus status. The applicant was denied these documents pursuant to sections 17(2) and 65(6) of FIPPA because they related to tax information and labour relations or employment matters and there is no indication that any tax issues were in play regarding the applicant. In these circumstances, it is not unreasonable to conclude that some of the 616 e-mail messages containing the applicant’s name dated in 2012 that Ms. Rae had been identified as having relate to the applicant’s surplus status. In my view, e-mail messages regarding the applicant’s surplus status are arguably relevant. As has been stated in previous Interim Decisions in this matter, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220.

16The applicant’s submissions regarding Mr. Grimsditch, Mr. Andersen, Ms. Wright and Ms. McDonough do not in my view establish that any of the messages they may hold are arguably relevant. None of them are said to have messages in the relevant time frame, i.e., 2012. The applicant’s submissions are to the effect that Mr. Grimsditch, Mr. Andersen and Ms. Wright retaliated against the applicant by causing him to be selected for transfer to the CRA, which is not the subject of this Application. The applicant provided no basis for concluding that the e-mail messages Ms. Rae has from 2009, 2010 and 2011 are related to his surplus status in 2012.

17My initial decision denying the applicant’s request was interlocutory and, while I agree that revisiting such orders is to be avoided, the finality of such a decision is not in my view as significant as for a merits decision disposing of the Application. The purpose of interlocutory/procedural decisions is to ensure that hearings are conducted in a fair, just and expeditious manner. Where circumstances indicate that an interlocutory decision may result in unfairness, finality may not be a sufficient reason to decline to reconsider it. Having found that it appears that the respondent may have arguably relevant documents, it would be in my view unfair to deny the applicant access to them and I find that procedural fairness outweighs the public interest in the finality of my initial interlocutory decision.

18I do not consider it necessary, however, to require the respondent to produce all 616 e-mail messages in which the applicant is named that Ms. Rae is said to have from 2012. Rather, I find it appropriate to direct the respondent to review its e-mail records for 2012 and produce all those held by Ms. Rae that in any way touch on the issue of the applicant’s surplus status.

19The Tribunal does not deal with Applications by performing a “desk review” or collect evidence for parties. Whether the respondent should have applied the Employment Accommodation & Return to Work Operating Policy to the applicant is a key issue in dispute that can only be resolved through evidence and argument at a hearing.

Accommodation/Adjournment

20In Ihasz v. Ontario (Revenue), 2012 HRTO 2112, the Tribunal informed the applicant that he needed to provide sufficient information to allow the Tribunal to grant any accommodation request. A one sentence note is not sufficient, particularly when the note provided no indication regarding why the applicant’s doctor considered the applicant to be unable to participate in a hearing scheduled to begin more than three months after the date of his letter. The applicant’s request for accommodation/adjournment is denied at this time. The applicant may renew his request for accommodation, but, if he does, must provide sufficient medical information to support it, including:

• A description of the applicant’s disability-related restrictions and how/why these restrictions prevent or limit his participation in a hearing;

• The accommodations, e.g., alterations to the typical hearing procedure, that would allow the applicant to participate in a hearing: and,

• If the applicant is unable to participate in a hearing, even with accommodation, an estimate of when the applicant will be able to participate in a hearing and, again, any accommodation required to assist him.

vexatious litigant request

21The respondent included a request to have the Tribunal declare the applicant a vexatious litigant along with its submissions regarding the applicant’s accommodation request. Because the respondent included this request with its response to a request by the applicant, the applicant’s entitlement to respond to it and the timeline for doing so were not clear, as would have been the case had the respondent filed a separate Request for an Order During Proceedings. Accordingly, the applicant may file with the Tribunal and deliver to the respondent a Response to a Request for an Order by March 31, 2014.

Order

22The Tribunal orders as follows:

1. The respondent shall review its e-mail records for 2012 and deliver to the applicant all e-mail messages held by Ms. Rae that in any way touch on the issue of the applicant’s surplus status, or confirm that no such messages exist, no later than the end of business on March 31, 2014 ;

2. The applicant’s request to conduct this matter by “desk review” is denied;

3. The applicant’s request for accommodation/adjournment is denied, but may be renewed, subject to providing sufficient supporting information, as described in paragraph 20, above; and,

4. The applicant may file with the Tribunal and deliver to the respondent a Response to a Request for an Order (Form 10) is response the respondent’s request to have him declared to be a vexatious litigant, no later than the close of business on March 21, 2014.