Norrena v. Primary Response Inc., 2014 HRTO 39

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dwight Norrena

Applicant

-and-

Primary Response Inc. and Andre Hilton

Respondents

RECONSIDERATION DECISION

Adjudicator: Judith Keene

Date: January 10, 2014

Citation: 2014 HRTO 39

Indexed as: Norrena v. Primary Response Inc.

WRITTEN SUBMISSIONS

Dwight Norrena, Applicant

Melissa Mark, Counsel

Primary Response Inc. and Andre Hilton, Respondents

Yvonne MacDonald, Representative

1This is a Decision on a Request for Reconsideration filed on July 23, 2013. The respondent requested that the Decision in 2013 HRTO 1175 be reconsidered. The Request was delivered to the applicant on the same date. The applicant was given an opportunity to make submissions, and he requested and received an extension of time to do so. The applicant sent a response to the Request for Reconsideration dated September 27, 2013.

2In their Request, the respondents asked that the above noted Decision and the Order contained in it be set aside, and in addition requested that the Tribunal assign the reconsideration to another Vice-chair and make an order for punitive damages.

3I should deal first with the respondents’ request that another Vice-chair be assigned to reconsider this matter. Requests for Reconsideration are assigned by the Associate Chair of the Tribunal and in this case the Request was assigned to me.

4My understanding of the respondents’ submissions on this point is to an extent, a reading between the lines. In this case, the respondents have asserted that, among other things, I “fabricated” and “omitted” certain parts of the evidence, and it appears that they believe that I could not therefore deal fairly with their Request for Reconsideration. The respondents have not requested that I recuse myself. However, in consideration of the fact that the respondents are not represented by counsel, I have considered whether this situation would justify recusing myself. I have concluded that it does not.

5Perhaps the most common reason cited in recusal motions is that there would be a reasonable apprehension of bias if the adjudicator were to continue dealing with the matter. In Toneguzzo v. Kimberly-Clark Inc., 2005 HRTO 9, the Tribunal discussed the jurisprudence relevant to a request to an adjudicator to recuse him- or herself at paras 28-30:

...the leading authority on the general principles governing the determination of the existence of a reasonable apprehension of bias is the dissenting judgment of de Grandpré J. in Committee for Justice and Liberty v. National Energy Board (1976), 1976 CanLII 2 (SCC), 68 D.L.R. (3d) 716 (S.C.C.) (“Committee for Justice and Liberty”). Secondly, there is no case law dealing with a factual situation on all fours with this one. Thirdly, the closest factually relevant authority is the judgment of the Court of Appeal for Ontario in Benedict v. Ontario 2000 CanLII 16884 (ON CA), (2000), 51 O.R. (3d) 147 (C.A.) (“Benedict”). Thereafter, in furtherance of their respective positions on my continued participation, the two counsel took diametrically opposed positions on how de Grandpré J.’s statement of principle and the Court of Appeal’s judgment in Benedict related to the facts of this case.

6In Committee for Justice and Liberty, at 735, de Grandpré J. set out the now standard test:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information… [T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think it is more likely than not that the [decision-maker], whether consciously or unconsciously, would not decide fairly.

7He did, however, go on to state, at 735-36, that the grounds for any such apprehension must be “substantial”, and, quoting from the Federal Court of Appeal’s judgment in that case, not the product of a “very sensitive and scrupulous conscience”.

8In other cases, particularly those in which Superior Court and provincially-appointed judges have been asked to recuse themselves on the basis of a reasonable apprehension of bias, the sentiment that there must be substantial grounds for disqualification is reflected in propositions such as that a judge “should not easily accept a motion to recuse”: Samson Indian Band & Nation v. Canada (1997), 1997 CanLII 6390 (FC), [1998] 3 F.C. 3 (T.D.) at para. 23, affirmed (1998), 227 N.R. 386 (C.A.). If motions for recusal are allowed too readily on insubstantial grounds, parties to proceedings will be provided with a potentially powerful instrument for engaging in adjudicator shopping and delaying proceedings, and, more generally, the law’s grip on practical realities will be loosened. Indeed, as the following extract from the judgment of Cory J. in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at 532, reveals, there are other reasons of policy for insisting that such challenges not be made or allowed lightly:

Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of a real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed, an allegation of reasonable apprehension of bias calls into question not only the personal integrity of the judge, but the integrity of the entire administration of justice… Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegation. Yet, it is a serious step that should not be undertaken lightly.

9In this case, the respondents have not alleged any personal interest of mine that might raise an apprehension of bias, nor does such an interest exist. This situation is more similar to the facts in Cann v. Rona Incorporated, 2012 HRTO 1065, in which the applicant submitted that the adjudicator had not duly considered the evidence, submissions and case law in making his decision, and that the adjudicator was biased and not competent to hear the matter. Referring to Committee for Justice and Liberty (above) the Tribunal dealt with the issue of bias (at para 14) as follows:

The threshold test for reasonable apprehension of bias is a high standard. The fact that I may not have referred to the submissions of the applicant’s representative to the degree the applicant feels I should have in my Decision does not give rise to a reasonable apprehension of bias. There is no requirement that the Tribunal summarize or refer to every submission made by a party at a hearing. The Decision only briefly referred to specific submissions or arguments where necessary. A reasonable person viewing these circumstances would not find that the reasons of the Decision gave rise to a reasonable apprehension of bias simply because not all submissions made by either party were referred to.

10In this case, where the respondents have raised only my alleged shortcomings as an adjudicator in requesting that another adjudicator be assigned, I am particularly concerned about the possibility, noted in Toneguzzo v. Kimberly-Clark Inc. above, that “[i]f motions for recusal are allowed too readily on insubstantial grounds, parties to proceedings will be provided with a potentially powerful instrument for engaging in adjudicator shopping and delaying proceedings, and, more generally, the law’s grip on practical realities will be loosened.”

11In the circumstances, assuming the respondents’ submissions amount to a request that I recuse myself, I would dismiss such a request.

12I find that the respondent has not established that subsections (a), (c) or (d) of Rule 26.5 applies to its situation, nor that any other part of Rule 26.5 applies. In addition, I do not find that fairness requires that the Decision in this matter be set aside. My reasons are set out below.

ANALYSIS

13Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it to reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.

14It is useful to consider the Tribunal’s Practice Direction on Reconsideration, which states in part:

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

15The issue of the remedy requested by the respondents should be addressed at the outset. If the respondents had been successful in obtaining reconsideration, the Decision would be set aside, but there would be no question of punitive damages—the Tribunal has no jurisdiction to award damages of any nature to a respondent.

16The respondents cite subsections (a), (c) and (d) of Rule 26.5.

17To successfully claim reconsideration based on subsection (a) of Rule 26.5, the respondents must identify “new facts or evidence that could potentially be determinative of the case”. Counsel for the applicant argues that no new facts or evidence have been asserted, and on review of the respondents’ submissions, I agree with this. The respondents have not established grounds for reconsideration under this subsection.

18To successfully claim reconsideration based on subsection (c) of Rule 26.5, the respondents must establish that “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”. As noted by counsel for the applicant, the respondents have not referred to any decisions of the Tribunal in their submissions. Nor have they identified any aspect of Tribunal procedure with which this Decision might conflict. The respondents have not established grounds for reconsideration under this subsection.

19I turned to whether the respondents have established that “other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions”, for the purposes of subsection (d) of Rule 26.5.

20All of the submissions made by the respondents refer to what was said and done at the hearing. The Tribunal does not routinely record hearings, and neither party requested that the hearing be recorded in accordance with the Tribunal’s Practice Direction on recording hearings. In view of the submissions of the respondents, it is unfortunate that the hearing was not recorded, but I took notes throughout, which I used in writing the Decision. I should state at the outset that I am of the view that the Decision in 2013 HRTO 1175 accurately reflects the statements and submissions made before me during that hearing.

21In their submissions, the respondents refer to paragraphs 6, 23, 27, 39, 52, 57, 63, and 68 of the Decision.

22The first of the respondents’ complaints concern certain audio recordings that they submitted as part of pre-hearing disclosure of evidence. The respondents assert that the audio recordings were referenced in the Decision as not relevant, and assert that they were not allowed to present or speak of the recordings in the hearing.

23The respondents have not raised any issue relevant to the content of paragraph 6. It is paragraph 7 rather than paragraph 6 of the Decision that refers to the recordings:

[7] With their documentary evidence, the respondents filed 3 audio files. They appear to be recordings of phone calls. In one, there is a voice mail greeting in which someone gives the applicant's name. In the other two, a similar voice gives the name of an organization that has not been mentioned in any of the filed documents. The respondents did not refer to this evidence in the course of their testimony. I see no reason why it might be relevant, and I have not taken it into account in assessing the evidence in this matter.

24I continue to be of the view that paragraph 7 of the Decision accurately reflects both the respondents’ evidence at the hearing and the lack of relevance to the Application of the subject-matter of the recordings.

25The respondents denied that certain testimony was given. They state that

a) The personal respondent “did not testify that he asked the applicant if he required assistance as a result of him having a service dog”;

b) Ms MacDonald did not advise Mr Hilton not to allow the wearing of the device requested by the applicant, but told him to use his own judgement;

c) One of the witnesses, Mr Beekham, “at no time indicated [that the applicant] might have said “don’t touch my dog”.

26Subparagraph 26 (a), above, clearly refers to paragraph 23 of the Decision. Presumably, the respondents believe that my understanding of the personal respondent’s testimony as reflected in paragraph 23 was a reason for the finding that the Code had been breached. This is not the case; there is nothing intrinsically discriminatory in a service-provider or employer inquiring whether an individual who appears with a service animal requires assistance, and there was no such finding in this case.

27Subparagraph 26 (b), above, clearly refers to paragraphs 27 and 50 of the Decision:

[27] The respondents admit that Mr. Hilton checked with Ms. MacDonald concerning the request. Mr. Hilton testified that Ms. MacDonald said that it was up to him. The respondents’ Response states that Ms. MacDonald advised Mr. Hilton not to comply “as Mr. Norrena when he met with myself earlier in the morning had been asked if he required any accommodation and he responded in the negative”, and because “we did not know if the request was a recorder, which is not allowed by participants due to our confidentiality policy and thirdly and most importantly, as a guard you must have adequate hearing to perform the duties of a guard”.

...

[50] Several reasons were given at the hearing for the refusal to use the device as requested. Mr. Hilton stated that the applicant did not ask politely, and had not given notice of his request prior to the beginning of the lecture. The corporate respondent’s evidence was that Ms. MacDonald had advised Hilton not to comply “as Mr. Norrena when he met with myself earlier in the morning had been asked if he required any accommodation and he responded in the negative”, and because “we did not know if the request was a recorder, which is not allowed by participants due to our confidentiality policy and thirdly and most importantly, as a guard you must have adequate hearing to perform the duties of a guard”

28The respondents’ concern as stated in subparagraph 26 (b) is difficult to understand, given that, in my view, paragraphs 27 and 50 of the Decision reflect both the testimony they say was given, and the relevant text of their written Response. As counsel for the applicant correctly points out, the respondents’ Schedule “A” reflects this evidence.

29Subparagraph 26 (c), above, clearly refers to paragraph 40 of the Decision, which is set out in part below:

[40] Mr. Beekham testified that he came out into the hall on his way to the washroom after the applicant and the other three unsuccessful candidates have been called into the hall. He confirmed that the applicant asked him to watch his dog, but he said that he couldn't do that because he was going to the washroom. In cross examination, Mr. Beekham indicated that the applicant might have said “don't touch my dog”.

30Paragraph 40 certainly reflects my understanding of this witness’s testimony. However, even if my recollection were incorrect, Mr Beekham’s testimony as to what the applicant said at that point would remain peripheral to, and ultimately would not have changed, my reasons for determining that the respondents had breached the Code.

31The respondents also urge that certain assertions were not taken into account in the Decision, with the implication that, had they been taken into account, the Decision would have been different. They state that:

a) The applicant was one of 3 persons who met with Ms Macdonald prior to the start of the class;

b) The personal respondent asked “the ‘entire room’ of applicants [if they] required assistance”;

c) The personal respondent asked the class, including the applicant, whether he could hear the personal respondent and see the board. The respondents indicate that, had this evidence been taken into account, it would have established that the respondents “actually did accommodate” the applicant.

32The respondents’ concern as stated in subparagraph 32 (a) above is presumably related to paragraphs 18-19 and 43-45 of the Decision, and to my conclusion that Ms McDonald breached s. 23(2) of the Code. The Decision reflects my understanding of the evidence given. However, had I heard and accepted that Ms McDonald had interviewed two other persons prior to the start of the class, this would not have changed my finding or my reasons for determining that the corporate respondent had breached s. 23(2) of the Code. As noted in the Decision, s. 23(2) focusses on the content of “a written or oral inquiry” rather than whether the applicant was the sole person interviewed on the day in question.

33In subparagraph 32 (b) above, the respondents assert that the personal respondent asked “the ‘entire room’ of applicants [if they] required assistance”. I should point out first of all that only evidence relating to the respondents’ dealings with the applicant was relevant to the Application. The respondents’ concern as stated in subparagraph 32 (b) appears to relate to paragraphs 30 and 48 of the Decision. These paragraphs reflect my understanding of the evidence given by both parties. They accept that the personal respondent asked the applicant if he could hear in class, that the applicant said he could, but that the applicant’s response was a misplaced attempt at sarcasm, and was understood to be sarcasm by the personal respondent:

[30] The applicant moved to the front, but he testified that this was of little or no use to him. The parties agreed that Mr. Hilton asked the applicant if he could hear him, and that the applicant smiled (according to the respondents, “sarcastically”) and said yes. Hilton also stated that during the class the applicant was able to answer questions and make comments on the lecture.

…

[48] The applicant also admitted that he was late for class, and it is clear that the class started late because the applicant took his dog out of the building. He was not courteous enough to speak to Mr. Hilton in advance about his need to be late for class because of having to attend to the dog, despite the fact that he clearly had the opportunity to raise this before he left the building. These omissions may have been careless, or they may have been because the applicant was already irritated at what he considered discriminatory questions at the beginning of the orientation process. Understandable or not, these omissions made it less likely that a request for accommodation would be met in the circumstances. Finally, the applicant admits that he answered “yes” on at least one occasion when asked if he could hear, despite the fact that he was having some difficulty. As noted above, this response was recognised by the respondents to be sarcastic, but the applicant certainly risked being misunderstood.

34In subparagraph 32 (c) above the respondents assert that the personal respondent asked the class, including the applicant, whether he could hear the personal respondent and see the board. The respondents assert that, had this evidence been taken into account, it would have established that the respondents “actually did accommodate” the applicant. As noted above, the Decision indicates that this evidence was taken into account, but did not establish accommodation to the point of undue hardship for the purposes of the Code.

35The respondents also appear to suggest that, because the written test taken by the applicant was “based on the 40 hour security course all guards do in Ontario and not the class that day”, the applicant’s disability as it affected his ability to hear in the class could not have been the reason why his mark was unsatisfactory. Had the respondents established this with evidence, this would not of itself have led to a different conclusion than those reached in the Decision.

36The respondents suggest that the Decision “supports” the applicant’s use of a racial slur. I do not agree that any such conclusion is warranted. The Decision deals with the racial slur as follows:

[58] On the facts of this case, consideration of the applicant for further employment by the respondent was affected by the applicant’s unmet request for accommodation, the personal respondent’s untested assumptions about his previous employment experience, and the fact, which I have accepted, that the applicant lost his temper and called Mr. Hilton a “stupid Chink”. At this point in his interaction, the applicant had reason to be annoyed, but racist slurs are inexcusable. Racist slurs by a candidate for employment are a perfectly valid reason to refuse that employment. However, even if valid and non-discriminatory reasons exist for an adverse decision affecting employment, if one of the reasons for a decision involves a prohibited ground of discrimination, that decision infringes the Code. It is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: see for example Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 1989; CanLII 97 (S.C.C.), Filion v. Capers Restaurant, 2010 HRTO 264, 2010 HRTO 264.

...

[62] Because of the early stage of the applicant’s dealings with the respondent as a candidate for employment, it is fair to say that what was lost here was an opportunity for future employment, rather than a loss of employment, which can be quantified more exactly. The Tribunal has dealt with the assessment of opportunity loss in several decisions; see for example Ravi DeSouza v. 1469328 Ontario Inc., 2008 HRTO 23, 2008 HRTO 23, and Rocha v. Pardons and Waivers of Canada, 2013 HRTO 537, 2013 HRTO 537. In this case, the parties led no evidence that would go to the probability of employment for the applicant with the respondent after the application process. In addition, there is the matter of the racist slur uttered by the applicant after he was told that he had not been successful. Mr. Hilton gave evidence that, in addition to the fact that he understandably felt hurt and affronted by the slur, it made him wonder whether the applicant might repeat this behaviour on the job, where he would be dealing with the public, sometimes in difficult situations. I conclude that, for this reason, there was little possibility that the applicant would have been offered work, and I decline to make an order in respect of lost opportunity for employment.

...

[63] Subsection 45.2 (1) 1 authorizes monetary “compensation for injury to dignity, feelings and self-respect”. In the light of my remarks above in respect of the racist slur uttered by the applicant, I note that my reading of this provision, informed by the discussion in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 2008 CanLII 39605 (ON SCDC), is that it provides no authority to punish the conduct of any party. The inquiry under subsection 45.2 (1) 1 should be limited to an assessment of how the respondents’ breach of the Code affected the applicant.

37The respondents suggest that the Decision is flawed because I did not wear the applicant’s ameliorative device at the hearing of the Application. It is not clear to me as a matter of law that the respondents could rely on a suggested breach of the applicant’s rights during the hearing as a reason for reconsideration. However, I note that the applicant, in his response to the respondent’s request, asserts that he was properly accommodated during the hearing. The Decision describes the accommodation in paragraph 8:

The applicant had brought with him to the hearing a portable microphone that he uses to assist him in hearing speech clearly. The microphone could be used by only one wearer at a time, which made this device not well suited for the requirements of the hearing, in which, for example, the applicant would have to be able to hear the respondents’ representative’s questions, the answers given by a witness being questioned, and any questions or directions I might need to make during the witness's testimony. I suggested that the applicant use the microphones supplied by the Tribunal at each desk, which would also communicate wirelessly with his hearing aid. After a brief period of testing the equipment, this turned out to be a workable solution. I asked the applicant to let me know immediately if the equipment was not working properly, and checked with him several times during the course of the hearing as to whether he was hearing the participants clearly. On a couple of occasions he could not, but the equipment was adjusted and statements were repeated

38Because the decision to reconsider or not is a discretionary one, it is open to the Tribunal, in my view, to consider whether, despite the respondent’s failure to establish the applicability of any of the considerations noted in Rule 26.5, fairness demands that a final decision be reconsidered. In all of the circumstances, I do not think that fairness requires that the Decision in this matter be set aside.

DECISION

39The Request for Reconsideration is dismissed.