Cybulski v. Canadian Corps of Commissionaires, Ottawa Division, 2014 HRTO 638

Cybulski v. Commissionaires Ottawa (No. 3)

2012-11076-I

2014-05-05

2014 HRTO 638

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tyler Cybulski Applicant

-and-

Canadian Corps of Commissionaires, Ottawa Division Respondent

Adjudicator: Paul Aterman Date: May 5, 2014 Citation: 2014 HRTO 638 Indexed as: Cybulski v. Canadian Corps of Commissionaires, Ottawa Division

WRITTEN SUBMISSIONS

Canadian Corps of Commissionaires, Ottawa Division, Respondent: David Law, Counsel

RECONSIDERATION DECISION

BACKGROUND

1The respondent requests reconsideration of Decision 2014 HRTO 312 [reported 78 C.H.R.R. D/440], which found that it had discriminated against the applicant with respect to services because of creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The discrimination arose when the applicant was interviewed as part of a screening process used by the respondent to determine which of its employees it would recommend for consideration for a Top Secret security clearance by the Government of Canada.

2Two grounds are advanced in support of the request. The respondent says the Decision conflicts with established jurisprudence. It also says that there are other factors in favour of reconsideration that outweigh the public interest in the finality of Tribunal decisions.

3Before I address these arguments, I think it is worth mentioning a few facts about the context in which the hearing was conducted. The applicant did not deny trying to publicise his case in advance of and during the hearing. The respondent had concerns about the impact that media attention would have on the employment situation and security of at least one of its witnesses. Because of this it requested a complete publication ban and sealing of the Tribunal file.

4In Interim Decision 2013 HRTO 1773 [CHRR Doc. 13-2273] I granted a partial publication ban. At paragraph 6 of the Interim Decision I noted that a member of the media was present at the hearing and that I explained the scope of the partial ban to her and the parties. I also explained that a written decision would follow explaining both the scope and the reasons for the partial ban. As is indicated at paragraphs 19-20 of the Interim Decision, one of the reasons for ordering the partial ban was to enable the respondent to call the witnesses it needed to in order to present a defence.

5The respondent neither challenged the Interim Decision nor did it call either of the panel members who interviewed the applicant. As a result the only evidence about what took place during the interview came from the applicant. Although the respondent did challenge the applicant in cross-examination as to the meaning to be attributed to the exchanges between him and the panel members, it did not challenge the applicant as to what was said.

THE TEST FOR RECONSIDERATION

6Section 45.7 of the Code provides the Tribunal with authority to reconsider its decisions. Rule 26.5 of the Tribunal's Rules of Procedure provides that 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;

(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;

(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 and orders.

7The Tribunal's Practice Direction on Reconsideration states the following:

Parties may ask the HRTO to reconsider a final decision. The HRTO may also reconsider a decision on its own initiative where it considers it appropriate.

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

The rules for reconsideration are found in Rule 26 of the Rules of Procedure. A request for reconsideration will only be granted if the request meets one of the requirements in Rule 26.5.

Examples of situations where the HRTO has refused a request for reconsideration are where:

• the request asks for review of an interim decision which does not finally decide the party's rights or interests;
• the request repeats arguments the party has made at the hearing or in written submissions;
• a party disagrees with and wishes to challenge a finding of fact, including findings made about the credibility of witnesses;
• a party wishes to raise new arguments that were not made, but could have been made at the hearing or in written submissions;
• a party received notice that an application could be dismissed as abandoned if steps were not taken, but did not follow the Tribunal's directions by the deadline.

Examples of situations where the HRTO has reconsidered its decision are:

• where a party, through no fault of its own, did not receive notice of a hearing or request for submissions; or
• where exceptional factors exist that outweigh the public interest in the finality of decisions including inconsistencies in the HRTO's case law.

IS THE DECISION IN CONFLICT WITH ESTABLISHED JURISPRUDENCE AND DOES IT INVOLVE A MATTER OF GENERAL OR PUBLIC IMPORTANCE?

8The respondent maintains that I erred in law in concluding that the applicant had established discrimination.

9It argues that in order to establish a prima facie case of discrimination an applicant must make allegations that, if believed, provide a complete and sufficient basis for finding in the applicant's favour, before considering any respondent evidence. This seems to me to be a correct statement of the law in that it is consistent with what the Ontario Court of Appeal articulates as the standard in Peel Law Association v. Pieters, 2013 ONCA 396 [reported 77 C.H.R.R. D/177] ("Peel") at paras. 64-66.

10The respondent then goes on to argue that the applicant's evidence was full of "shifting and inconsistent allegations of facts regarding the episode where he claims to have suffered discrimination", that the applicant's evidence "contradicted itself on certain points" and that it "varied wildly". The respondent does not explain what the inconsistencies, contradictions and wild variations actually are.

11The respondent then asserts that the evidence is clear that at the interview the applicant first stated that he could not support Canada's overseas efforts and only thereafter made it clear that his answer was linked to his religious beliefs. It argues that the interview panel made its decision based only on the first part of the applicant's answer, which contained no references to creed. Whatever the applicant said after that regarding his religious beliefs made no difference to the decision the panel had already taken.

12There is no evidence to support the respondent's argument. The applicant's evidence was that he could not remember verbatim what he said, but that he communicated his disagreement with Canada's overseas policy and tied this disagreement to his religious beliefs. Notwithstanding the existence of a partial publication ban resulting from the respondent's own request and that was aimed at facilitating the respondent's presentation of its case, it chose not to call any evidence to contradict the applicant's account of what took place at the interview.

13This argument in support of reconsideration fails for two reasons. First, the respondent made the very same argument at the hearing and I dealt with it at paras. 71-73 of the Decision. The respondent is simply trying to reargue its case on this point and it is well settled that this is not what the Tribunal's reconsideration process is for.

14Second, although the ostensible ground that the respondent puts forward for reconsideration is that the Decision conflicts with established jurisprudence, the findings I made on this point are findings of fact. A party's disagreement with findings of fact is not a basis for reconsideration.

15The respondent also argues that I improperly drew an adverse inference from its failure to call evidence from either member of the interview panel. The respondent appears to argue that an adverse inference can only be drawn from its failure to call evidence after the applicant has established a prima facie case and that I failed to follow the sequence of reasoning that the law demands. Rather, (or so it appears from what the respondent is saying) I drew an adverse inference in order to determine that the applicant had made out a prima facie case, and in doing so I erred in law.

16I reject this argument for two reasons. First, it seems to me that the respondent has not stated the law correctly. The respondent advances a compartmentalised approach to the analysis of the evidence as the only correct way to analyse the evidence. The Court of Appeal considered this issue at some length in Peel (at paras. 80-90) and stated at para. 87:

I would leave to tribunals how they structure their analysis of the evidence. No matter how a particular tribunal conducts its analysis, at the end of the day, the tribunal must consider all the evidence that both supports and undermines the application in determining whether discrimination has occurred.

17Second, the conclusion I drew from the respondent's failure to call either panel member to give evidence was a finding of fact. As noted above, the purpose of the reconsideration process is not to allow a losing party to contest factual findings.

ARE THERE FACTORS THAT OUTWEIGH THE PUBLIC INTEREST IN THE FINALITY OF TRIBUNAL DECISIONS?

18Here the respondent argues that I allowed the applicant to intimidate the respondent and its potential witnesses, that I rewarded this intimidating conduct by finding in favour of the applicant and that a result which is arrived at through such means brings the administration of justice into disrepute.

19In particular, the respondent says that, despite the partial publication ban, "the applicant flagrantly invited media to the proceedings, secured newspaper coverage and made it clear that he would take every action necessary to publicize the identities of the respondent witnesses, despite the risks to those persons".

20This argument fails for the following reasons. There is a compelling public interest in the transparent administration of justice. In the case of the Tribunal this entails conducting proceedings in public. Parties are within their rights to solicit the interest of the media in these public proceedings. That is what the applicant did. The media was entitled to attend and report on the hearing.

21Limits, in the form of a partial publication ban, were placed on what both the applicant and any media representatives could communicate about the case. These were communicated to the applicant and the representative of the media present at the hearing, and again in written form. They both indicated that they understood the terms of the ban and would abide by them. There is no evidence that they did not.

22Despite what it alleges in paragraph 19 above, the respondent has no basis for asserting that once the partial ban was in place the applicant made any threats to breach the ban. At no time in the course of the hearing did the respondent suggest that the ban had not been respected.

23The respondent may not have liked how the applicant conducted himself during this case, but nothing that he did, including inviting the media to attend, amounts to "intimidation" as alleged by the respondent. It was the respondent's decision not to call either panel member to give evidence, despite the safeguards put in place enabling it to do so.

24The respondent has not shown how the public interest in the finality of Tribunal decisions is outweighed by any factors in favour of reconsidering the Decision.

ORDER

25The request for reconsideration is denied.