Sau-Ling Hum v. Alma Mater Society of Queen’s University Incorporated, 2015 HRTO 1061

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sau-Ling Hum Applicant

-and-

Alma Mater Society of Queen’s University Incorporated Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson Date: August 10, 2015 Citation: 2015 HRTO 1061 Indexed as: Hum v. Alma Mater Society of Queen’s University Incorporated

WRITTEN SUBMISSIONS BY

Sau-Ling Hum, Applicant ) Self-represented

1On March 11, 2015, the Tribunal issued its Decision in this Application, 2015 HRTO 300, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

background

2In the Application, the applicant stated that she has a “visible mobility impairment” and “chronic medical conditions”. The Application alleged discrimination in employment on the basis of disability.

3More particularly, the applicant alleged that the respondent subjected her to discrimination by providing her with a limited number of taxi chits, even when she stressed that her mobility would be compromised during the winter. The applicant also alleged that she was subjected to discrimination when she was not provided with remote computer access, after requesting it and stating that it was an issue of accommodation. She also alleged that she was subjected to discrimination when her employment was terminated by letter only, because the respondent’s policy regarding termination requires both written notification and a meeting, but she was too ill to attend a meeting. She did not allege that the termination of her employment was discriminatory in and of itself.

4The hearing in this matter took place over two days and was scheduled from 2:30 p.m. to 8:30 p.m. to accommodate the applicant.

5The Tribunal’s Decision found that the applicant has a mobility impairment that constitutes a disability within the meaning of the Code, but when the applicant was employed by the respondent the respondent was not aware that she had a sleep disorder, or any other disability. The Tribunal found that the applicant had not established that she was subjected to discrimination in relation to the provision of taxi chits or computer access, or in relation to the termination of her employment. The Tribunal also indicated that the applicant gave considerable evidence at the hearing regarding issues that she had with the respondent that did not appear to be related in any way to disability within the meaning of the Code, or to any other Code ground. Ultimately, the Tribunal found that the applicant had not established that she was subjected to any discrimination within the meaning of the Code in relation to her employment with the respondent.

THE REQUEST FOR RECONSIDERATION

6The applicant’s Request for Reconsideration (“Request”) includes a four page narrative. The following points summarized from the applicant’s narrative appear to be the main reasons in support of the Request:

i. On the first day of the hearing, the applicant informed the Tribunal that she had only slept for about three hours and may require a break during the proceedings. The Tribunal was willing to accommodate her and she took breaks over the course of the day, which did mitigate some of the effects of her sleep deprivation and fatigue; overall, she was able to maintain a general level of coherence in presenting her case. She also asked if she could respond to the respondent’s cross-examination of her the next day, as she recognized her memory recall was somewhat compromised, and the Tribunal granted the request.

ii. On the second day of the hearing, the applicant informed the Tribunal that she had been unable to sleep the night before, and the Tribunal reiterated that if she needed to take a break to just let the Tribunal know. At the start of the hearing, she felt that this would be sufficient; however, her functionality experienced severe impairment as the day progressed.

iii. At the beginning of the hearing, the applicant conceded that what the respondent provided in terms of taxi chits (nine chits) was mostly sufficient. Had she been able to think clearly on the second day of the hearing, she would have requested that additional measures be taken to find a tenth chit that would have completely refuted the testimony of the respondent.

iv. One of the respondent’s witnesses denied that he offered to help the applicant move during her disciplinary meeting. Instead, he fabricated a non-existent five-second encounter to better fit the timeline of his narrative. The witness recorded the meeting and, had the applicant’s cognitive processes not been compromised, she would have made a request for the recording.

v. The applicant was confused about email that she thought indicated that she was too ill to attend meetings with the respondent, which she could not find in the email documents she provided to the Tribunal, and she asked the Tribunal about submitting her text messages. The Tribunal indicated that it seemed like a “fishing expedition”, and she was not able to properly respond as her memory recall and thought processes were confused and lacking clarity by that point.

vi. Part way through the hearing, the applicant lost the ability to complete simultaneous cognitive tasks, and had to stop taking notes and focus only on listening. She could not even recognize what was happening as it occurred, because what little remained of her deteriorating cognitive abilities was completely focused on trying to follow the proceedings. She was not even able to request a break.

vii. By closing arguments, the applicant’s thought processes had lost all coherence. Near the end, she was attempting to respond to one aspect of the respondent’s argument and she could not recall the details. She asked if the Tribunal could recount the information, and the Tribunal replied that it would not be fair to do so.

viii.The Tribunal questioned how most of the email documents the applicant provided to the Tribunal were relevant to the issue of discrimination, and the applicant simply could not answer the question; by that point, there was so much incoherence and confusion in the applicant’ thought processes.

7The applicant included some other reasons in her narrative in support of her Request, addressed below, which did not appear to be relevant to the Tribunal’s determinations. The applicant also made additional argument in support of her case.

8The applicant also attached to her Request a doctor’s letter referring to some difficulties the applicant reported having at the hearing. The doctor’s letter is dated August 27, 2014, and appears to have been prepared in support of the applicant requesting accommodation in a Small Claims Court proceeding.

DECISION

9Under 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.

10The 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. 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.

11The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

12As 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.

13In the present case, the applicant relies on Rules 26.5(a) and (d) of the Tribunal’s Rules in her Request. More particularly, the applicant submits that there is new evidence that can refute some of the respondent’s evidence, and that fairness is not present when a person is temporarily not capable of some basic cognitive functions.

14Having considered the applicant’s submissions, for the reasons that follow, I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

Applicant’s reasons i. and ii.

15As I understand it, the applicant essentially submits that she did not have a fair hearing because her functionality was impaired due to fatigue on the second day of the hearing. It is not clear to me, however, if the applicant is seeking a new hearing in this matter. In terms of the remedy or relief that she is seeking, the applicant simply stated in her Request that she is seeking financial compensation.

16In any event, I am not satisfied that reconsideration is warranted in the circumstances. The Tribunal granted the applicant’s request for accommodation and scheduled the hearing to take place from 2:30 p.m. to 8:30 p.m. At the hearing, the applicant also indicated that she may require breaks, and the Tribunal took regular breaks and permitted breaks whenever they were requested by the applicant. The applicant did not indicate to the Tribunal that she was having difficulty participating in the hearing due to fatigue, or any medical or disability-related reasons, such that an adjournment may have been appropriate, and she did not request an adjournment for any such reasons. Rather, after each break, the applicant simply continued to participate in the hearing. The applicant now raises for the first time, in her Request, that her functionality was impaired at the hearing.

17The Tribunal notes that, in addition to requesting breaks, the applicant made numerous other requests of the Tribunal at the hearing, some of which are addressed below. If the applicant’s functionality on the second day of the hearing was impaired such as she now submits, it is not clear to me why she could not have asked for an adjournment at the hearing. In fact, as set out below, while the applicant did not seek an adjournment for medical reasons, she essentially asked for an adjournment on the second day of the hearing so that she could determine if she might have some additional evidence.

18The applicant also engaged in lengthy and vigorous cross-examinations of the respondent’s witnesses, addressing many aspects of their evidence. With respect to final submissions, the applicant chose to rely on written submissions that she had filed earlier, but then made lengthy submissions in reply to the respondent’s submissions, addressing both the issue of delay and the merits of the Application. The applicant did not appear to be functionally impaired at the hearing, and she actively participated in a fulsome manner in the hearing.

19I also note that the applicant states in her Request that she had problems with memory at the hearing, and that she has an incomplete recollection of the second day of the hearing, and cannot recollect what her closing arguments were. It appears from a review of the applicant’s Request, however, that she actually has a good recollection of the hearing in light of what she submitted occurred at the hearing, including on the second day.

20I also note that the doctor’s letter attached to the applicant’s Request was drafted a few months after the hearing for the purpose of supporting the applicant’s request for accommodation in a Small Claims Court matter. The letter sets out what the applicant “reports” experiencing at the hearing before the Tribunal. In my view, the letter does not independently verify that the applicant experienced cognitive impairment at the hearing.

21The Tribunal also accommodated the applicant, and assisted the applicant as a self-represented party at the hearing, as appropriate, and to the extent the Tribunal was able to. In my view, the applicant has not established that she was not able to meaningfully participate in the hearing. I find that the applicant has not established that factors exist that outweigh the public interest in the finality of Tribunal decisions. See Rule 26.5(d) of the Tribunal’s Rules.

Applicant’s reasons iii., iv. and v.

22Prior to the hearing, the applicant delivered and filed a Request for an Order During Proceedings (“RFOP”) for production of documents concerning her use of taxi chits with the respondent. In response to the RFOP, the respondent provided the applicant with relevant documents and, at the outset of the hearing, the applicant confirmed that there were no outstanding issues with respect to the RFOP.

23In my view, it is simply not an appropriate basis for reconsideration for the applicant to now assert that she would have requested on the second day of the hearing that additional measures be taken to find a tenth chit. As the Tribunal’s Decision states, the respondent provided documentation indicating that an extensive search and review of respondent taxi chits was conducted for the period of the applicant’s employment, and a total of nine chits for the applicant’s transportation were located. The applicant was aware of this at the outset of the hearing. Had the applicant requested on the second day of the hearing that additional measures be taken to find a tenth chit, including possibly through the records of a third party, it is highly unlikely that the Tribunal would have granted such a request given that the applicant indicated at the outset of the hearing that there were no outstanding issues with respect to her RFOP, and that granting such a request in all likelihood would have required an adjournment of the hearing.

24The applicant also baldly asserts that a tenth taxi chit would completely refute the testimony of the respondent. The applicant does not explain how this would be so. The existence of a tenth chit may have supported the applicant’s evidence that she asked for taxi chits on an additional occasion in the winter term, and stressed that she would have additional mobility problems, or increased problems getting around; however, the Tribunal found that, in any event, even if the applicant stressed to the respondent that she would have additional mobility problems, or increased problems getting around, and was left with two chits, it would not have amounted to discrimination contrary to the Code in the circumstances. The Tribunal also found that, even if the applicant had a disability-related need for more chits, the respondent would not have reasonably been aware. The applicant has not explained how the existence of a tenth chit would have actually affected, in any way, the Tribunal’s finding that she was not subjected to discrimination in relation to the provision of taxi chits.

25I note that the applicant states in her Request that the Tribunal queried in the Decision why she did not directly ask for more taxi chits, or follow up with regards to remote computer access. She submits in her Request that it was readily apparent to her that such actions were “one of futility”.

26The applicant also gave evidence, and cross-examined her former supervisor, about her requests for taxi chits and the number of chits he provided to her. She also addressed the provision of taxi chits in her final submissions. In my view, the applicant was able to meaningfully participate in the hearing with respect to this issue.

27With respect to a tape recording of her disciplinary meeting, the applicant has not explained how, if a recording confirmed that a particular witness offered to help her move at the meeting, as opposed to on another occasion, it would have affected the Tribunal’s Decision in any way. In any event, the applicant fully cross-examined the particular witness on this matter at the hearing.

28While the applicant did not seek an adjournment at the hearing due to fatigue or medical reasons, she essentially asked for an adjournment during her reply evidence on the second day of the hearing, so that she could determine if she might have some text messages. The applicant submits in her Request that she was not able to properly respond to the Tribunal indicating that this seemed like a “fishing expedition”. The applicant, however, stated at the hearing that she was not certain about text messages. When the Tribunal asked her further about possible text messages, the applicant referred to “texts that might have gone back and forth near the end of her employment about meeting times”. She admitted that it was speculative. She also stated that she did not know what might exist. In the circumstances, the applicant’s adjournment request was denied. In my view, the applicant has not established that she was not able to meaningfully participate in the hearing with respect to this issue. The applicant essentially asked for an adjournment and thoroughly responded to the Tribunal’s inquiry about the purpose of the proposed adjournment. In any event, the applicant has not indicated in her Request if any such text messages actually exist and, if so, how they might have affected the Tribunal’s determinations in any way.

29In my view, the applicant has not established that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. The applicant has also not established that she was not able to participate in the hearing in a meaningful way with respect to these issues, and that factors exist that outweigh the public interest in the finality of Tribunal decisions.

Applicant’s reasons vi. and vii.

30As the applicant indicated in her Request, the applicant asked the Tribunal about testimony a witness gave and the Tribunal recounted the evidence from the Tribunal’s notes. On more than one occasion in her final submissions in reply, the applicant also asked the Tribunal to repeat what the respondent had submitted on particular issues in its final submissions, by reference to the Tribunal’s notes. The Tribunal assisted the applicant where it was able to do so.

31On one occasion, the Tribunal was not able to assist the applicant with the details of one aspect of the respondent’s final argument, as the Tribunal did not have verbatim notes of all of the respondent’s final submissions. The Tribunal also indicated to the applicant near the very end of the second hearing day that it was not appropriate to keep asking the Tribunal to read back the Tribunal’s notes. At the outset of the hearing, the Tribunal clearly advised the parties that the Tribunal does not take any official record or transcript of the proceeding. The Tribunal also advised the parties that the Tribunal would be taking notes, but that these notes would be for the Tribunal’s own use and would not be available to the parties. The Tribunal clearly indicated that the parties were responsible for taking their own notes as they saw fit. Also, at no point during the hearing did the applicant indicate to the Tribunal that she was having any difficulty taking notes. The applicant has also not explained how the inability of the Tribunal to read back the details of one aspect of the respondent’s final argument affected the outcome of the hearing in any way.

32In my view, the applicant has not established that reconsideration is warranted based on these reasons. As set out above, with respect to final submissions, the applicant relied on written submissions that she had filed earlier, and also made lengthy submissions in reply to the respondent’s submissions. She did not appear to be functionally impaired. The Tribunal also accommodated the applicant, and she was assisted at the hearing as appropriate, and to the extent the Tribunal was able to. In my view, the applicant has not established that she was not able to meaningfully participate in the hearing with respect to final submissions, and that factors exist that outweigh the public interest in the finality of Tribunal decisions.

Applicant’s reason viii. and other submissions

33In much of her submissions in her Request, the applicant appears to be simply rearguing her case. In 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 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.

34I find that much of the applicant’s submissions in her Request amount to additional argument on issues already fully canvassed before the Tribunal. For example, in her Request the applicant makes additional arguments about the provision of taxi chits. The applicant also states in her Request that the Tribunal questioned how most of her submitted email was relevant to discrimination. She states that she simply could not answer the question, and goes on to explain why she included seemingly irrelevant email evidence.

35In the Decision, the Tribunal states that the applicant gave considerable evidence at the hearing regarding issues that she had with the respondent that do not appear to be related in any way to disability within the meaning of the Code, or any other Code ground. The Decision states that, on more than one occasion at the hearing, the applicant was reminded that the Tribunal’s jurisdiction is limited to actions that are linked to Code grounds. The Tribunal determined that the applicant did not adequately explain how various matters related to disability or any other Code ground.

36Contrary to the applicant’s submission in her Request, when the applicant was asked about the relevance of various aspects of her evidence at the hearing concerning workplace issues that she had with the respondent, including considerable email evidence, she made various submissions. For example, the applicant submitted that she was explaining what her motivations were. She also essentially submitted that she was providing evidence relevant to the work environment with the respondent. She also rather baldly submitted that there was a lot of conflict in the workplace that was relevant to disability discrimination that occurred later, but she did not actually explain how it was relevant to her allegations of discrimination based on disability. In my view, the applicant is now making additional argument on issues already fully canvassed before the Tribunal. I also find that the applicant was able to meaningfully participate in the hearing with respect to these issues in light of the considerable evidence she gave, and the submissions she made, at the hearing regarding these issues.

37In her Request, the applicant also refers to her supervisor constructing a narrative in his evidence that included concerns about graduate students. She submits that, had she been aware of this prior to the hearing, she would have submitted additional evidence to refute that narrative. The applicant also refers to false allegations that were made by another individual. She submits that there is email evidence to refute the individual’s claims, and that she did not get the opportunity to request “those submissions” due to her circumstances on the second day. The applicant, however, has not explained at all how these matters concerning issues in the workplace about which there was conflict have any relevance whatsoever to her allegations of discrimination.

38In any event, the applicant gave considerable evidence about particular false allegations being made against her at the hearing, and she cross-examined her supervisor about the issue concerning graduate students. In my view, the applicant was able to meaningfully participate in the hearing with respect to these issues, and has not established that any other factors exist that outweigh the public interest in the finality of Tribunal decisions. I also find that the applicant has not pointed to any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

Conclusion

39In 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.