Garces-Vinasco v. Counterpoint Counselling & Educational Cooperative Inc., 2014 HRTO 982

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adolfo Garces-Vinasco Applicant

-and-

Counterpoint Counselling & Educational Cooperative Inc. Respondent

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle Date: July 4, 2014 Citation: 2014 HRTO 982 Indexed as: Garces-Vinasco v. Counterpoint Counselling & Educational Cooperative Inc.

WRITTEN SUBMISSIONS

Adolfo Garces-Vinasco, Applicant Self-represented

Introduction

1On December 12, 2013, the Tribunal issued its Decision in this Application, Garces-Vinasco v. Counterpoint Counselling & Educational Cooperative Inc., 2013 HRTO 2055, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

background

2The Tribunal's Decision found as follows:

• All of the applicant's allegations but three were dismissed on the basis of delay. The allegations related to events occurring more than one year prior to the filing of his Application, the events were found not to constitute a series of events and the applicant was found not to have demonstrated that the delay was incurred in good faith.
• With respect to the three allegations which were found to be timely, the applicant was not able to point to evidence to link the respondent's alleged actions with the grounds of discrimination cited by the applicant, and they were dismissed as having no reasonable prospect of success.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

b. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

4The Tribunal did not require the respondent to file a Response to the applicant's Request for Reconsideration.

DECISION

5Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal's Rules.

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.

6The 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 amended most recently April 2014). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

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.

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.

8As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen 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.

9I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

10As indicated above, the applicant relies on Rule 26.5 (c) and (d). He submits that he has provided proof of his allegations, and he submits an audit performed by the Attorney General regarding the respondent's hiring policies found them to be "inappropriate and non-transparent"; he also provided a May 9, 2012 decision from Human Resources and Skills Development Canada, which found that he voluntarily left his employment with the respondent "with just cause". Parenthetically, I note that the April 4, 2011 letter from the office of the Attorney General, which references the respondent's hiring practices, indicates "inappropriate and non-transparent hiring/ appointment of senior management". The applicant does not indicate that he was a member of, or sought to become a member of, senior management at the respondent. In respect of the allegations which the Decision found to be untimely, he submitted that even if the Tribunal "considers them out-dated for processing, the documented events are mainly used here to contextualize my claims by showing the long term hardship I had to endure".

11Generally, the applicant appears to take exception to the fact that the Decision refers to his complaints by saying "he alleges", and in his Request he again asserts that his allegations are fact. The summary hearing, of course, is not a proceeding where evidence is sworn and at a summary hearing no allegations are proven. The language of the Decision reflects this, and is not an indication of disrespect or disbelief.

12The applicant also takes exception to the fact that the Decision indicates that one of his allegations was that in 2009 he was not eligible for benefits and was earning too little to qualify for Employment Insurance benefits. He states that in fact he was approved for Employment Insurance benefits at the time, but that as he was underpaid and without benefits, he was not able to "take the necessary rest and recovery treatment". He does not disagree that the allegation was with respect to events in 2009. There is nothing in his submission about this allegation which would alter the fact that it is not part of a series of events and he has not established a good faith reason for the delay in making the allegation. Accordingly, there is nothing which would alter the Decision in respect of this allegation.

13With respect to the allegations which were found to be untimely, the applicant again asserts that it was unsafe for him to discuss these matters earlier. He submits that he had to be cautious and could not raise the allegations as he felt fearful at work. This was a repetition of the applicant's submissions at the summary hearing and has already been disposed of in the Decision.

14With respect to one of the allegations which was found to be untimely, namely the allegation that the respondent did not pay him as much as it paid others to perform "paperwork", he asserts that the respondent kept paying him less, being $19 per hour, for administrative duties right up to February 2012, when he left his employment there. He also indicates that for doing the administrative duties associated with a "split" position, he was paid "the regular $26/hr coop member's rate". At the summary hearing in this matter, the applicant indicated that when he was assigned administrative duties in his "split" position in October, 2011, he was offered $25.00 per hour and he contrasted this with an earlier period of time when he had done the work for $15.00 per hour, and then $19.00 per hour. Even considering the way the applicant frames the allegation in his Request for Reconsideration, would not alter the ultimate result in the Decision, namely, dismissal of the Application in its entirety. I note here that if he himself received two such different wages for different administrative duties, it would likely be even more difficult for him to establish that the reason he received $19.00 per hour for some duties was due to discrimination, when he received the rate he felt was appropriate it for other duties. In any event if the applicant is making a timely allegation that he was paid at two different rates for two different groups of duties, one of which was the "regular" rate which he feels he should have received for both duties, he has not pointed to evidence which would link the respondent's alleged actions to the grounds of discrimination he claims, and his allegation would have no reasonable prospect of success, resulting in dismissal on that basis.

15With respect to one of the timely allegations, that a posted position was later split, denying him full time work, he submits that the Decision misstates his allegation, as it says that a full time position was split in two, he was given half and alleged that this was in order to prevent him from having the job. He submits that in fact, the position which was split was not a full time position, but the fact that it was split and he only received part of the hours associated with it, meant that he did not get a full-time position. Any such discrepancy makes no difference to the question of whether the applicant was able to provide a link between the respondent's alleged actions and the grounds of discrimination he cited, and accordingly, would not alter the result in this Decision in any way.

16Interestingly, in his Request for Reconsideration he also states that he "never said splitting the position was discriminatory". He submits that he "explained clearly enough" that the position was split "to avoid giving me that, so I could then up to a formal full-time contract that should guarantee me the much needed health benefits and other to take care of my personal condition". Yet, later in his Request, he submits "we can easier infer the discriminatory intention when splitting the position I asked for". At the summary hearing into this matter, the applicant repeatedly asserted that the position was split in order to manipulate the situation and not give him the job. Whether the applicant takes the position that the splitting of the position was discriminatory or not, it does not alter the result of the Decision, which was to dismiss the Application in its entirety. It continues to be the case that he has not indicated evidence which would establish a link between the respondent's alleged actions and the grounds of discrimination which he cites in his Application.

17With respect to another allegation which was found to be timely, namely that his supervisor was not there on his last day to receive his keys and documents, in his Request for Reconsideration he submits that "I did not feel discriminated against because my supervisor was not there to receive my position, nor that I wanted her to cheer me up or needed to see her at that time." He submits that he was treated differently to other people because there was no exit interview or evaluation of him. Again, even framing the applicant's allegation as a matter of an exit interview and evaluation would not change the result of the Decision. There continues to be nothing the applicant has pointed to which would establish a link between the respondent's alleged conduct and the grounds of discrimination cited in the Application.

18With respect to the final timely allegation, namely that the respondent did not pay him severance pay when he left its employ, in his Request for Reconsideration, he submits that though the Decision states his allegation was that when he resigned he was not paid severance pay in accordance with the Employment Standards Act, in fact he alleged that the respondent had not paid him severance pay in accordance with a policy which he alleges is evident by the fact that a Board member was paid severance pay in 2009 and another individual was paid severance pay in 2006. Again, this does not alter the fact that the applicant has not indicated what evidence he would use to establish that the respondent's alleged failure to pay him severance pay when he resigned from his part-time position (in which he states he worked more than full-time hours) in 2012 was discriminatory on the basis of ethnic origin or national origin.

19In support of its Request, the applicant essentially repeats arguments made orally before the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

20The applicant has not provided new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

21It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson, above, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

22While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that his submissions on this Request do not establish that the Tribunal's Decision conflicts with established jurisprudence.

23In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal's Decision. The Request is denied.