HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
James Ellis and the Applicants listed on Schedule "A"
Applicants
-and-
Petro-Canada Inc.
Respondent
Reconsideration Decision
Adjudicator: Kaye Joachim
Indexed as: Ellis v. Petro-Canada Inc.
WRITTEN SUBMISSIONS
Robert Waddell, Applicant
Self-represented
The applicants listed on Schedule A, Applicants
Robert Waddell, Representative
INTRODUCTION
1This Decision addresses a Request for Reconsideration of the Tribunal's Decision, 2014 HRTO 163.
2On March 6, 2014, the applicants filed a Request for Reconsideration under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
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.
3Rule 25 of the Tribunal's Rules of Procedure for Transitional Applications provides any party may request reconsideration within 30 days of the date of the decision. Rule 25.1 provides that a party may request reconsideration of a final decision. Rule 25.5 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.
DECISION
4The applicants indicated three bases for reconsideration: new facts, lack of notice, and conflict with Tribunal case law.
5The new evidence submitted was a medical report dated January 25, 2012, from St. Joseph's Healthcare from a respirologist who had treated the applicant Waddell since 2000. This doctor had initially written a medical letter stating that the applicant should not return to work in 2005 due to irritating inhalant within the work environment. After being provided with an environmental assessment of the workplace, the respirologist submitted a revised letter indicating that it would safe for the applicant Waddell to return to the workplace.
6The new evidence in the 2012 letter was that the applicant had advised of second-hand smoke in the workplace and on that basis, the respirologist stated that the second-hand smoke made it an unsafe work environment for the applicant prior to 2005. In addition the respirologist stated that given the improvement in applicant Waddell's condition since leaving the workplace, this indicated that applicant Waddell had not been medically suited to work at the respondent workplace.
7During the hearing I refused to accept this evidence on the basis that it could have been, but was not, provided in a timely manner. That remains my decision. Also it is not evidence that would cause me to change my decision in the case of the applicant. I dealt extensively with the applicant Waddell's claims regarding exposure to second-hand smoke and his suitability to work in that environment in my previous decisions. This respirologist report does not cause me to alter those findings.
8The applicants raised several errors of fact in the final decision, such as the reference to 17 applicants rather than 18; that performance reviews commenced in 2004 and not 2003; and that the ranking list was created in 2003, before performance reviews, rather than in 2004, after and based on performance reviews.
9Alleging that the Tribunal has made factual errors is generally not considered a ground of reconsideration. Nonetheless I will address the alleged errors briefly.
10Regardless of the alleged errors in dates, the fundamental basis of my findings was that disability and/or disability-related absence played no role in either the performance reviews or the ranking list.
11The applicants alleged that I improperly curtailed cross-examination of a witness regarding the date of the creation of the ranking list. As a result of my conclusion above, such limitation of cross-examination, if it occurred is irrelevant.
12The applicants suggested I made errors regarding the confidentiality of health centre records and employee assistance program records. It is unnecessary to review at length the applicants' arguments. I am satisfied that I came to the correct decision regarding the respondent's substantial compliance with confidentiality of health centre records and employee assistance program records.
13In the final decision I referred to the failure of the applicants to obtain the resumes of the successful employees to compare them to the résumés of the applicants. Regardless of whether they requested them, I found that due to the passage of time, most were unavailable and therefore, no adverse inference was drawn against either party. Regarding the lack of résumés, I note that even the applicants were not able to produce their own résumés and covering letters regarding their attempts to obtain job postings.
14The applicant Kocken alleged that the decision erred in his case by failing to acknowledge 16 years of research lab experience from 1980 to 1996 in assessing his relative qualifications for the position of technologist in Research Development. Even if this were the case, I had concluded that the successful applicants had been in lab positions at the time of the completion, which made their recent experience more relevant than that of the applicant Kocken. With respect to the application for a Research Technologist position, I noted that the successful candidate held a current lab position and had a university degree in Applied Chemistry and Biology both of which the applicant lacked.
15The alleged errors of fact regarding applicant Cassady amount to no more than a disagreement with my conclusions.
16Although alleged in the Request for Reconsideration, the applicants presented no evidence or argument that they had failed to receive adequate notice, or that the decision was inconsistent with the prevailing case law.
17The Request for Reconsideration is dismissed.
Dated at Toronto, this 5th day of May, 2014.
"Signed by"
Kaye Joachim
Member
Schedule A
T-0190-08.................................................................................................................... James Ellis
TR-0511-09.......................................................................................................... Frank Kasmara
TR-0580-09............................................................................................................ William Brown
TR-0582-09......................................................................................................... Robert Paterson
TR-0584-09............................................................................................................ Richard Kelso
TR-0585-09............................................................................................................ George Heelis
TR-0617-09..................................................................................................... Thomas Saunders
TR-0618-09.......................................................................................................... Robert Waddell
TR-0623-09......................................................................................................... Radcliffe Meikle
TR-0626-09....................................................................................................... William Michaluk
TR-0632-09............................................................................................................. Steven Bowie
TR-0652-09............................................................................................................... Helen Solski
TR-0688-09......................................................................................................... Susan Cassady
TR-0695-09.............................................................................................................. Robert March
TR-0699-09.......................................................................................................... Dennis Reeves
TR-0712-09............................................................................................................ Morris Kocken
TR-0716-09......................................................................................................... Richard Dimock
TR-0759-09........................................................................................................... William Rainey
TR-0763-09............................................................................................... Robert Adam Kreuger