Truscott v. Landmark Student Transportation, 2014 HRTO 911

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alan Truscott Applicant

-and-

Landmark Student Transportation Respondent

RECONSIDERATION DECISION

Adjudicator: Beverly Harris Date: June 20, 2014 Citation: 2014 HRTO 911 Indexed as: Truscott v. Landmark Student Transportation

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2014 HRTO 607 dated April 30, 2014, which dismissed this Application.

2On May 6, 2014, the applicant filed this Request for Reconsideration of the Tribunal’s Decision.

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).

5The Tribunal’s Practice Direction on Reconsideration begins with 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 et al., 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 his request for reconsideration satisfies the criteria set out in Rule 26.5 relied upon by the applicant.

10The applicant relies on sections (b) and (d) of Rule 26.5. I have paraphrased the applicant’s arguments for reconsideration below:

1. He did not receive the Case Assessment Direction dated April 2, 2014 and, as a result, his comments in response to the respondent’s affidavit were compromised. He seeks an opportunity to submit evidence to rectify that situation (the CAD issue).
2. The findings of fact with respect to drivers hired in the Collingwood area in the spring of 2013 are wrong and do not align with the evidence he adduced at the hearing (the evidence issue).

11In what follows, I will evaluate each of these two arguments in turn.

The Case Assessment Direction (CAD) issue

12At the conclusion of the hearing and before I had issued a decision, I found that there was no direct evidence from either party on the question of whether the respondent had any vacancies on any of the Collingwood routes in the summer of 2013. In a Case Assessment Direction (CAD) dated April 2, 2014, I explained why I was taking the unusual step of requesting further evidence after the close of the hearing. I set out a process and a timetable for filing that evidence (by the respondent) and hearing from the applicant in response to the new evidence.

13The CAD was served on both parties by both mail and email. The addresses used for the applicant correspond to the addresses for him in the Tribunal’s file and there is no record of the email to the applicant being “undeliverable”.

14The respondent filed an affidavit on April 14, 2014 and served it on the applicant by email. The applicant filed two emails commenting on the affidavit on April 14 and April 15, 2014 respectively.

15The applicant states that he did not receive the mailed copy of the CAD until after his return home from Florida in May 2014. He also states that he did not receive the emailed copy of the CAD. The question for me is whether this amounts to a failure to receive notice of the proceeding sufficient to warrant re-opening the matter to hear further evidence from the applicant.

16There were several email communications between the applicant, the respondent and the Tribunal in the days following both the hearing and the issuance of the CAD. All of the emails both to and from the applicant used the same email address. Because it is important to the question of whether the applicant had notice of the proceeding, I have set out the dates and substance of those email communications below:

• On March 31, 2014 the applicant wrote to the Tribunal with some observations about the hearing process.
• On April 4, the Tribunal wrote the applicant at his email address attaching the CAD.
• On April 14 the respondent served the affidavit on the applicant by email.
• On April 14 the applicant responded to the affidavit in an email sent to the respondent and the Tribunal.
• On April 15 the applicant filed further comments on the respondent’s affidavit.

17The only email out of this series that the applicant claims not to have received is the one attaching the CAD on April 4. I am satisfied that there was no error in the email address used by the Tribunal for this delivery as it is the same email used for other successful deliveries to the applicant. Under the circumstances, I find it highly unlikely that the applicant did not receive the email attaching the CAD that was sent to him by the Tribunal in early April. Accordingly, I do not accept the applicant’s assertion that the first time he received the CAD was when he returned from holiday to find a hard copy of the document in his regular mail.

17In addition to the likelihood of the applicant receiving the CAD by email April 4, I find there are a number of other events that ought to have triggered the applicant’s notice of a proceeding underway.

18The respondent’s email attaching the affidavit refers to it being filed “further to the Case Assessment Direction of Adjudicator Beverly Harris”. The applicant received that email and corresponded with the Tribunal thereafter. Clearly, he was aware of the proceeding underway and availed himself of his right to make submissions to the Tribunal on the affidavit that was filed.

19I am surprised that the applicant did not make any inquiries of Tribunal staff about the reasons for an affidavit being filed at this stage. Even more surprising, given the language of the covering email from the respondent, the applicant did not ask about the Case Assessment Direction referred to therein. These would have been reasonable inquiries to make under the circumstances.

20I am not satisfied that this is a case where the applicant did not have notice of a proceeding and the matter should be re-opened. To the contrary, I find the applicant was aware of the proceeding and made submissions to the Tribunal in a timely way.

The evidence issue

21The Applicant also alleges a mistake in the findings of fact in the final decision. For ease of reference, I have reproduced the findings in dispute below:

[18] The respondent’s evidence is that all 13 Collingwood routes were assigned to drivers who previously worked for Sinton.

[29] Landmark assigned drivers using a matching process that matched drivers to the route closest to their residence. They began by matching the Sinton drivers and were able to match Sinton drivers to each of the 13 routes in the immediate vicinity of Collingwood.

[41] …. I am further persuaded that all 13 [Collingwood] routes were awarded to former Sinton employees to whom Landmark owed a primary duty to place in jobs.

22The Applicant alleges that these findings are contrary to the evidence adduced at the hearing. Again, for ease of reference, I have reproduced the applicant’s submissions on this point below:

I testified to the fact [sic] Perry Shaw and Charlie Hewitt, both fellow drivers from Parkview Transit had been hired by Landmark in spite of my having superior qualifications. Both are younger than I. Both are on the payroll of Landmark Transportation.

Perry Shaw and Charlie Hewitt (formerly Parkview drivers) got 2 of [the Collingwood] routes. And they were the same routes as they held previously.

23In fact, the applicant first referred to his former colleague, Charlie Hewitt, in his opening statement where he stated that Charlie drove with him at Parkview for 15 years and that Charlie was hired by Landmark.

24In his direct evidence, the applicant gave his most extensive testimony of the hearing about other Parkview drivers who had been hired by Landmark over him. This time he referred to Perry Shaw who, he noted, was the longest serving Parkview employee and at 68 years old was younger than the applicant by almost seven years. He described Perry as not as experienced a driver and not as highly educated as the applicant. That was the only reference in his direct evidence to another driver from Parkview having been hired by Landmark.

25Ms. Lubke Storry testified on behalf of the respondent. She testified about the process for matching drivers to routes and noted that after placing all the former Sinton drivers, there were approximately 90 candidates for jobs for whom there was no route available.

26In his cross-examination of Ms. Storry, the applicant asked a number of questions relating to whether any drivers hired for Collingwood routes were over the age of 75. He also asked whether the driver hired for route 430 (the applicant’s route with Parkview) was a former Sinton employee. He did not question her about his friends Charlie and Perry being hired by Landmark to drive routes when he was not hired.

27After the applicant had completed his cross-examination, I asked questions of Ms. Storry. Specifically, I asked whether all 13 Collingwood routes were assigned to former Sinton employees. Ms. Storry responded in the affirmative.

28In argument, the applicant repeated his understanding that “to my knowledge all my friends at Parkview were hired [by Landmark]” (emphasis added) and “I think I am the only exception amongst Parkview drivers” (emphasis added). He stated that it was particularly hurtful to him that all the drivers at Parkview were younger than him.

29To summarize this rather lengthy recitation of the facts and argument, it is accurate to say (as the applicant asserts in this Request for Reconsideration) the applicant asserted (in his opening statement and in evidence) that his colleagues, Perry Shaw and Charlie Hewitt, were hired by Landmark. It is also fair to say that the applicant asserted (in evidence and in argument) that his qualifications were superior to those of his younger colleagues from Parkview.

30It is not fair to say, as the applicant does in his Request, that the evidence before me at the hearing was that both Charlie Hewitt and Perry Shaw were hired by Landmark to drive Collingwood routes. The applicant did not advance this proposition at the hearing; indeed, it flies in the face of specific evidence given by the respondent’s witness at the hearing to the effect that only Sinton drivers were assigned to the 13 Collingwood routes. The applicant did not attempt to refute this assertion by the respondent’s witness either in cross-examination, by giving further evidence in reply, or in his final argument. One would have expected that, if he had evidence to the contrary on this point, he would have raised it at any of those times.

31I am not persuaded that I made an error of fact in finding that all 13 Collingwood routes were assigned to drivers who formerly drove for Sinton, given that this finding was based on specific evidence given before me by Ms. Storry which was not refuted. Accordingly, I am not satisfied that the applicant has made out a case of compelling and extraordinary circumstances that warrant reconsidering the decision on this basis.

32Further, even if the applicant had adduced evidence at the hearing that these two Parkview drivers were assigned to Collingwood routes, that evidence would not have changed the ultimate decision in this case. I would still have been left with two explanations for the respondent’s decision to hire other drivers (and in particular, two younger colleagues from Parkview) over the applicant. On the one hand, there was the applicant’s explanation that he was more experienced and better educated than Perry Shaw and Charlie Hewitt; therefore, the only logical explanation for not hiring the applicant was age discrimination. On the other hand, there was the respondent’s explanation that drivers were assigned to routes based on a system that matched drivers to routes closest to their homes in order to minimize costs. I would still have found the respondent’s explanation to be a rational and non-discriminatory explanation that is credible on all the evidence.

33For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.