Trites v. New Directions Aromatics Inc., 2014 HRTO 582

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Trites

Applicant

-and-

New Directions Aromatics Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Jo-Anne Pickel

Date: April 24, 2014

Citation: 2014 HRTO 582

Indexed as: Trites v. New Directions Aromatics Inc.

WRITTEN SUBMISSIONS

New Directions Aromatics Inc., Respondent

Alex Thomas, Representative

1The respondent seeks reconsideration of the Decision, 2013 HRTO 2102, granting the Application.

2For the reasons set out below, I find that the respondent has not established the existence of any of the criteria in Rule 26.5 of the Tribunals Rules of Procedure (“Rules”) that would cause me to reconsider the Decision.

The Decision being challenged

3In the Decision, I found that the applicant had established on a balance of probabilities that her disability was a factor in her termination.

Applicable Principles

4In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the Tribunal has made a decision in a case, parties are entitled to treat the matter as closed, subject to limited exceptions.

5The circumstances in which a Request for Reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s Rules:

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.

THE REQUEST FOR RECONSIDERATION

6In the Request for Reconsideration, the respondent’s representative states that the respondent is a family-owned business established by immigrants who themselves experienced discrimination in Canada. The respondent’s representative repeats many of the same arguments that were made in the hearing and relies upon the evidence called at the hearing. He disagrees with the Tribunal’s assessment of credibility and findings of fact in this case. He claims that the applicant did not advance sufficient evidence to make out even a prima facie case of discrimination. Among other things, the respondent submits that it fully complied with the Employment Standards Act when it terminated the applicant’s employment during her probation period.

7He claims that the Tribunal must “pass a simple test of ‘Beyond a Reasonable Doubt’”. He alleges that I was biased because I asked numerous questions of the respondent’s witnesses during the hearing. He also claims that I exploited the lack of language proficiency of the respondent’s main witness and “twisted the facts”. In the Request for Reconsideration, the respondent asks for the case to be dismissed and for monetary compensation to be paid to the respondent for the “insult to dignity, feelings and self-respect and for the harassment and anguish suffered by [the respondent] due to the decision of the Vice-chair”.

Analysis

8It is common for an unsuccessful party to disagree with the Tribunal’s assessment of credibility and findings of fact and law. On its own, such a disagreement is not a ground on which to grant reconsideration of an Application.

9It has been recognized by the courts that most discrimination cases do not involve direct evidence of discrimination but instead turn on inferences made from circumstantial evidence. See, for example, Shaw v. Phipps, 2010 ONSC 3884, upheld, 2012 ONCA 155. In the Decision, I found that the applicant had advanced sufficient evidence to establish a prima facie case that her shoulder injury was a factor in her termination. I found that the respondent failed to provide a rational credible and full explanation of the reasons for the applicant’s termination. I note that a termination may comply with the Employment Standards Act but nevertheless breach the Human Rights Code, R.S.O. 1990 c. H.19, as amended (the “Code”) if there is a finding that a prohibited ground was a factor in an employee’s termination. There is no information in the request for reconsideration that would lead me to reconsider my assessment of the evidence or application of the law in this case.

10The respondent takes issue with the active approach to adjudication adopted by the Tribunal. The Code permits the Tribunal to “adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it”: s. 41 of the Code. Many hearings before the Tribunal involve self-represented parties. In such a case, it is common for the Tribunal to take an active approach to adjudication to ensure all relevant evidence is heard. Under subsection 43(3)(c) of the Code and Rule 1.7(m) of the Rules, the Tribunal has the power to question witnesses. The respondent’s claim that I “exploited” the witness’ lack of English proficiency is a bald and unparticularized allegation. I disagree that I “cross-examined” or exploited the lack of English proficiency of the respondent’s main witness. At all times, my questions were aimed at clarifying the testimony of witnesses and ensuring that I had a proper understanding of the witnesses’ evidence regarding the events in question.

11It is unclear what the respondent is referring to when he refers to having to prove a case beyond a reasonable doubt. Applicants in human rights cases do not have to make out their case beyond a reasonable doubt. They must instead meet the lower standard of a balance of probabilities. This is the standard that I applied in the Decision. It is possible that the respondent is suggesting that the Tribunal’s decision must conform to a standard of beyond a reasonable doubt. If so, this is incorrect. No such standard applies to Tribunal decisions. The Tribunal’s decisions on issues within its jurisdiction must be reasonable. I do not find that the respondent has advanced any information in the Request for Reconsideration that would cause me to reconsider re reasonableness of the Decision.

12No doubt, many parties will experience the impact of an adverse decision of the Tribunal in a personal way. This may especially be the case when a party has themselves experienced discrimination in the past. Parties are often certain about the justness of their case, and expect an impartial adjudicator to agree with them. This is understandable, since parties wish to succeed in their arguments.

13However, this does not lead logically to the conclusion that, if an adjudicator accepts one witness’ evidence over that of another, the adjudicator is biased, exploiting a witness’ characteristics or “twisting” the facts. When faced with conflicting testimony, as occurs in most cases, the adjudicator inevitably must make findings of fact based on his or her assessment of the relative credibility of witnesses having regard to how their testimony fits with the the preponderance of the probabilities in light of the evidence as a whole. Although the respondent does not agree with my assessment of the evidence advanced at the hearing and my assessment of credibility, I do not find any information in the respondent’s request that would lead me to reconsider the Decision.

14For all the reasons set out above, I find that the respondent has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal's Decision. In the Decision, I remained seized on the issue of remedy. A Decision on Remedy will follow this Reconsideration Decision.