Human Rights Tribunal of Ontario
B E T W E E N:
Haruyo Taucar Applicant
-and-
The University of Western Ontario, Donna Pennee and Lisa Ann Korab Respondents
RECONSIDERATION DECISION
Adjudicator: Mark Hart Date: January 15, 2014 Citation: 2014 HRTO 63 Indexed as: Taucar v. University of Western Ontario
1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2013 HRTO 1725, dated October 11, 2013, which dismissed certain aspects of this Application.
2On November 12, 2013, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. While the Request for Reconsideration originally was filed by e-mail at 5:08 p.m. on November 8, 2013, I note that Rule 1.19 provides that documents received by fax or e-mail after 5 p.m. are deemed to have been received on the next business day. As November 11, 2013 was Remembrance Day, which is a holiday (at least for the Tribunal and other government offices), the Request for Reconsideration is deemed to have been filed on November 12, 2013. While Rule 26.1 requires a party to file a reconsideration request within 30 days (which in this case expired on November 11, 2013), Rule 1.10 provides that when the time for doing an act expires on a holiday, the act may be done on the next day that is not a holiday. Accordingly, I am satisfied that the Request for Reconsideration was filed within 30 days as required by the Tribunal’s Rules.
3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”) provides as follows:
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.
4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The 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).
5The Tribunal’s Practice Direction on Reconsideration includes 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.
6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.
7In 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 parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.
8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:
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.
9As a result, I need to determine whether the material filed by the applicant in support of her request for reconsideration satisfies the criteria set out in Rule 26.5. The applicant relies upon the criteria identified in Rule 26.5(c) and (d).
10Rule 26.1 provides that reconsideration may be requested in relation to a “final decision” of the Tribunal. While the Tribunal’s Decision dated October 11, 2013 was styled as an Interim Decision, I am satisfied that it nonetheless was a “final” decision within the meaning of Rule 26.1 in relation to the aspects of the Application that were dismissed as a result of the summary hearing. As stated in Sigrist and Carson, above, at para. 41, it is reasonable to view a “final decision” as one that disposes of some or all of the central issues in the Application as between the parties. In the instant case, the October 11, 2013 Decision did dispose of some of the central issues in the Application, and to that extent, in my view is properly regarded as a “final decision”.
11The applicant takes the position that another Tribunal member, other than myself, should decide this Request for Reconsideration, on the basis that the October 11, 2013 Decision indicates a “reasonable apprehension of bias” towards the applicant. This is said to be based upon my alleged “utter callousness and shocking attitude towards the applicant’s suffering”, my alleged “failure to have regard to the requirements of the Code concerning accommodation short of undue hardship”, my alleged “newly invented ultra vires reasonableness criteria”, and my alleged “multiple conjectures / findings based on no evidence whatsoever and contradicted by evidence not referred to”.
12As stated by the Divisional Court in Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 at para. 16, “the mere fact that an adjudicator determines a request for reconsideration of his or her own decision does not, in and of itself, create a reasonable apprehension of bias in the context of this legislative scheme”. The test for reasonable apprehension of bias, as summarized in the Landau decision, is “whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly”. While I appreciate that the applicant does not agree with my Decision, I do not see anything in the Decision that gives rise to a reasonable apprehension of bias that would disqualify me from determining her reconsideration request.
13The applicant submits that I changed the test for summary hearings and applied a “new test”. In particular, the applicant submits that I departed from the established test of whether or not there is a “reasonable prospect of success” and applied a “new test”, which is “whether reasonable inferences can be drawn from any facts or evidence that the applicant is able to point to which tend to support the applicant’s belief that she has experienced discrimination” and “whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics”.
14In fact, the statements from my decision referenced by the applicant actually are more specific articulations of the “reasonable prospect of success” standard, and are consistent with this Tribunal’s case law in relation to the test to be applied in the context of a summary hearing: see McMullen v. Maackon Corporation, 2013 HRTO 233, and numerous summary hearing decisions since then. The Tribunal’s approach to summary hearings does not involve “weighing” the evidence as would be done at a full hearing on the merits, as alleged by the applicant. Rather, the issue on a summary hearing is whether, on the basis of the evidence reasonably available to the applicant, does she have a reasonable prospect of success in establishing a violation of the Code, which necessarily includes the need to be able to point to evidence that connects the discriminatory treatment received by the applicant with the ground(s) of discrimination alleged. In the instant case, the communications at issue which the applicant is relying upon to support her requests for accommodation are entirely set out in writing. Accordingly, in relation to the two aspects of the Application that were dismissed, no issue of “weighing” the evidence arises. The issue addressed in the Decision was whether, on the basis of the written communications filed with the Tribunal and relied upon by the applicant, the applicant has a reasonable prospect of establishing a violation of the Code. For the reasons set out in the Decision, I found she did not.
15The applicant also submits that I ignored the established jurisprudence that “the Tribunal must be attentive to the fact that, in some cases of alleged discrimination, information about the reasons for the actions taken by the respondent are within the sole knowledge of the respondent”. In fact, para. 13 of my Decision provides a summary or plain language version of this very statement, which was considered by me in making my determination.
16With regard to Complaint No. 2, the applicant appears to mischaracterize the basis of my decision. I take no issue, at least at the summary hearing stage, with the fact that the applicant had a disability at the relevant time and that, at least as of the June 20, 2009 letter, there was a request that Ms. Korab not communicate with the applicant directly for reasons related to her disability. The issue addressed in my Decision relates to the scope or extent of this request for accommodation. The request made in the June 20, 2009 letter was for the University and Ms. Korab not to contact the applicant directly. The problem is, what kinds of communications with the applicant does this request relate to?
17As stated at para. 16 of the applicant’s submissions in support of her reconsideration request, “the applicant did not object to general administrative matters communicated directly to her [as] these did not cause her damage to mental health”. This statement is consistent with the submissions made to me at the time of the summary hearing. As noted in my Decision, following the June 20, 2009 letter from applicant’s counsel, an e-mail was sent on June 25, 2009 by a University representative directly to the applicant and to the applicant’s alleged harasser, and copied to Ms. Korab and others, addressing office arrangements arising out of the applicant’s complaints about the alleged harasser. Not only was no objection taken to this direct communication, the applicant personally responded (with a copy to Ms. Korab) regarding her preference.
18The July 15, 2009 communication at issue in Complaint No. 2 relates to a request by Ms. Korab for a consent to allow her to discuss the details of the applicant’s harassment complaint with the applicant’s husband, who was (and still is) acting as her counsel. As stated in my Decision, the issue is whether Ms. Korab knew or ought reasonably to have known that communicating directly with the applicant about obtaining a consent to speak with her husband / legal counsel was the kind of communication that was captured by the request for accommodation of the applicant’s disability: see Sollitt v. Trillium Lakelands District School Board, 2013 HRTO 1128 at para. 27. For the reasons articulated in my Decision, I found that the applicant did not have a reasonable prospect of success in establishing that Ms. Korab knew or ought reasonably to have known this. Having reviewed and considered the submissions made in support of the applicant’s reconsideration request, I see no sufficient basis to cause me to change this view.
19There appears to be a misunderstanding by the applicant that I concluded in my Decision that Ms. Korab’s July 15, 2009 communication related to a consent to speak to the applicant about office arrangements. No such conclusion was made by me. It appears clear to me that the consent sought by Ms. Korab was for the purpose of speaking with her husband / legal counsel about the details of the applicant’s internal harassment complaint. The point of making reference to the June 25, 2009 e-mail, as stated in my Decision and above, is that it is clear that not all direct communications were contra-indicated by the applicant’s disability, even where the communication arose directly from her harassment complaint (as with the June 25, 2009 e-mail and the need to make alternate office arrangements for the applicant and the alleged harasser). So it is in these circumstances that I needed to assess whether the applicant had a reasonable prospect of success in establishing that Ms. Korab’s July 15, 2009 communication about the consent constituted a denial of accommodation and violation of the applicant’s Code rights. For the reasons given in my Decision, I found that there was not, and find nothing in the submissions in support of the reconsideration request to change my view.
20This is not, as alleged in the reconsideration request, about the imposition of a requirement for formalism or some kind of special incantation in order to render a request for accommodation effective. Rather, it is about the need for clarity in order for an employer to properly know the scope and extent of the accommodation request, so that the employer properly can respond to it. Here, the problem is that, while the June 20, 2009 accommodation request was expressed in absolute terms (no direct communications by the University or Ms. Korab with the applicant), it is clear from the applicant’s own submissions and actions that this was not taken literally (the University could communicate with her about “administrative matters” or about the need for alternate office arrangements arising from her harassment complaint). It is in the context of this lack of clarity as to the scope and extent of the accommodation request that I needed to assess whether the applicant had a reasonable prospect of success in establishing that Ms. Korab knew or ought reasonably to have known that communicating directly with the applicant about obtaining a consent to speak with her husband / legal counsel was the kind of communication that was captured by the request for accommodation.
21This analysis does not require an assessment of the “undue hardship” defence available to an employer in a duty to accommodate case. Before getting to the issue of undue hardship, an applicant needs to establish discrimination because of disability in respect of employment. In the context of the accommodation of a disability, this includes being able to establish that a request for accommodation because of disability was made and that the respondent failed to act in compliance with that request. It is at this stage of the analysis that I found the applicant had failed to establish a reasonable prospect of success.
22With regard to Complaint No. 3, the applicant first takes issue with my determination that imposing the June 25, 2009 deadline was not a violation of the Code related to the applicant’s disability. The applicant submits that the duty to accommodate requires an employer to consult with an employee as to any accommodation required, and the University failed to do so before imposing the deadline. While there is no doubt that accommodation is a multi-party process and involves discussions between an employer and employee as to the specifics of the accommodation to be provided, no authority is cited by the applicant for the proposition that, in the absence of an employee having identified any need for accommodation in terms of meeting a deadline, an employer has a duty under the Code to consult with the employee before imposing a deadline. In fact, the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate (which are relied upon by the applicant), state that it is the person with a disability who has the responsibility to “make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation”: see section 4.4. As stated at para. 42 of my Decision, “there is no indication in [the June 4, 2009] letter that due to her disability the applicant would be unable to meet an eight day deadline to submit material”.
23With regard to the issue of the brief delay in responding to the extension request, the applicant essentially repeats the same arguments made at the summary hearing. In summary, the applicant, through her counsel, made an extension request late in the day on a Friday and was notified that Ms. Korab was unavailable until the following Thursday (which was the day of the deadline). Counsel sought a response from Ms. Korab’s administrative assistant. Ms. Korab responded the day before the deadline to grant the extension and did so as soon as she had access to her e-mail and saw the request. I remain of the view that these circumstances do not support that the applicant has a reasonable prospect of success of establishing a violation of the Code arising from Complaint No. 3, and see nothing in the submissions in support of the reconsideration request to change my view in this regard. With regard to the applicant’s submission that the original e-mail seeking the extension also was copied to other individuals at the respondent University, this argument was made by the applicant at the summary hearing and addressed at para. 48 of my original Decision.
24With regard to my decision to grant the respondents’ request that paras. 110-128 of the Application be struck, once again the applicant essentially repeats the same arguments made at the summary hearing. With regard to the submission that these paragraphs “support an argument of similar fact evidence and/or a pattern of behaviour of hostility and deceptiveness toward the applicant”, I note that at the summary hearing, the applicant conceded that these paragraphs in and of themselves do not purport to set out any alleged infringement of a right of the applicant’s under the Code. Accordingly, it is difficult for me to understand how the allegations raised in these paragraphs could be advanced as “similar fact” or “pattern” evidence. Indeed, the applicant’s submission appears to be that, because the University was “hostile” and “aggressive” towards the applicant on some other occasion, such allegations should be allowed to remain as part of the Application on the basis that they are relevant to a determination as to whether the University discriminated against the applicant on a different occasion and in different circumstances. In my view, reliance on allegations for such a purpose would constitute inadmissible character-type evidence. I see nothing in the submissions filed in support of the reconsideration request to cause me to change my decision to strike these paragraphs.
25Accordingly, having carefully reviewed and considered the applicant’s Request for Reconsideration and the submissions and materials filed or referenced in support of this request, I find that the applicant has failed to establish my Decision is in conflict with established jurisprudence or Tribunal procedure, and has further failed to satisfy me that other factors exist that outweigh the public interest in the finality of Tribunal decisions.
26For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.
27Finally, the applicant requests that this matter be deferred if her reconsideration request is not granted, on the basis that she intends to seek judicial review. Such a request is premature at this time, in the absence of an application for judicial review actually having been filed and in the absence of submissions from the respondents. If the applicant does proceed with an application for judicial review of the October 11, 2013 Decision and this Reconsideration Decision, then she may renew her deferral request at that time by serving and filing a Request for Order during Proceedings (Form 10).
ORDER
28For all of the foregoing reasons, I hereby make the following order:
a. the applicant’s Request for Reconsideration is denied; and
b. the applicant’s request for deferral pending judicial review is denied as premature.
Dated at Toronto, this 15^th^ day of January, 2014.
“Signed by”
__________________________________
Mark Hart Vice-chair