Li v. University Health Network, 2015 HRTO 126

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yong Xiang Li

Applicant

-and-

University Health Network

Respondent

-and-

Canadian Union of Public Employees, Local 5001

Intervenor

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson

Date: January 28, 2015

Citation: 2015 HRTO 126

Indexed as: Li v. University Health Network

WRITTEN SUBMISSIONS BY

Yong Xiang Li, Applicant ) Self-represented

1On October 17, 2014, the Tribunal issued its Decision in this Application, 2014 HRTO 1550, finding that the applicant had been subjected to discrimination, and ordering a remedy. The applicant has asked the Tribunal to reconsider its Decision.

Background

2In the Application, the applicant alleged that he was subjected to discrimination in employment on the basis of disability when he was denied necessary accommodation, or modified work, and when his employment was terminated.

3The Tribunal’s Decision found that the respondent breached its duty to accommodate the applicant in the workplace, both procedurally and substantively, and that it also subjected him to discrimination on the basis of disability within the meaning of the Code when it terminated his employment.

4The Tribunal issued the following Order with respect to remedy:

1. Within 30 days of the date of this Decision, the respondent shall pay the applicant $15,000.00 for injury to dignity, feelings and self-respect;

2. Pre-judgment interest is payable on the above amount from January 24, 2011, to the date of this Decision, in accordance with the Courts of Justice Act. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision, in accordance with the Courts of Justice Act.

THE REQUEST FOR RECONSIDERATION

5In his Request for Reconsideration (“Request”), the applicant submits that he disagrees with paragraphs 140 to 142 of the Tribunal’s Decision, wherein the Tribunal determined that it was not appropriate to award compensation for lost income, as follows:

The applicant testified that, after his employment was terminated, he commenced employment on September 26, 2011, first in British Columbia, and then in Alberta. He essentially testified that he waited until his back was better before commencing employment, and that he no longer does a physical job.

In cross-examination, the applicant confirmed that he “stayed at home” for more than half a year until he felt comfortable to work again, and then he found another job. The respondent essentially submitted that, with respect to the applicant’s claim for lost wages, there is no evidence of mitigation.

It appears from the applicant’s own evidence that he did not make efforts to find alternate employment for more than half a year, and, when he did so, he found another job. While the applicant testified that he still had medical restrictions at the time his employment was terminated, there is no evidence that his medical restrictions would have precluded the applicant from attempting to seek alternate employment after his employment with the respondent was terminated. In the absence of any evidence whatsoever that the applicant attempted to mitigate his losses by seeking alternate employment for several months after his employment was terminated, I do not find that it is appropriate to award compensation for lost income. See Duliunas v. York-Med Systems, 2010 HRTO 1404, at paras. 92-97.

6The applicant also disagrees with paragraph 150 of the Tribunal’s Decision, wherein the Tribunal declined to order the respondent to provide an apology, as follows:

While the applicant seeks a public apology in his Application, he did not repeat his request for any apology at the hearing. In any event, the Tribunal has generally declined to order parties to provide an apology on the basis that such orders are viewed as inappropriate, or an ineffective remedy, and raise potential freedom of expression concerns. See Abdallah v. Thames Valley District School Board, 2008 HRTO 230, at para. 110, and Turnbull v. Famous Players, (2001) 2001 CanLII 26228 (ON HRT), 40 C.H.R.R. 333 at para. 264. In the present case, I decline to order the respondent to provide an apology.

DECISION

7Under 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.

8The 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 June 2008). 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.

9The 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.

10As 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.

Lost income

11In his Request, the applicant submits that he lost income between January and September 2011, following the discriminatory termination of his employment. He submits that the Decision ignores that he was still in “modified duty status”, that the respondent did not question his lost income, and that there was not a discussion on the details of him looking for a new job.

12The applicant submits that he started looking for a new job in April 2011, and that he got some interviews, but that he could not get a new job because he was asked about the reason he left his last job. The applicant also submitted new documents in support of his Request. In particular, the applicant included what appears to be email correspondence in relation to the applicant applying for approximately four jobs in April, and one job in July, 2011. He disagrees that he “did not make efforts to find alternate employment for more than half a year.”

13As is evident from the Tribunal’s Rules, and made explicit in the Tribunal’s relevant Practice Direction, reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. Once the parties to a case 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. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 at para. 56.

14At the hearing, the applicant testified that, after his employment was terminated, he commenced employment on September 26, 2011, in British Columbia. He essentially testified that he waited until his back was better before commencing employment. In cross-examination, the applicant was specifically asked about his request for lost wages. The applicant confirmed that he stayed at home for more than half a year until he felt comfortable to work again, and then he found another job.

15I also note that, in final submissions at the hearing, the applicant submitted that, after his employment was terminated, he did not have any income for eight months, until he found a new job. In response, the respondent submitted that the applicant did not provide any evidence that he attempted to mitigate lost wages. The applicant provided no further submissions with respect to lost wages in reply.

16I find that, in requesting that the Tribunal reconsider its determination with respect to the applicant’s claim for lost wages, the applicant is essentially attempting to re-argue or repair deficiencies in the presentation of his case. While the applicant has provided some documentation which suggests that he made some attempts to find alternate employment commencing in April 2011, no such evidence was presented at the hearing, and there is no indication that this information was ever shared with the respondent, or provided to the Tribunal, prior to the applicant filing his reconsideration Request. It also appears that the applicant had this information in his possession since 2011, and he has provided no explanation as to why this information could not have been provided earlier, and, in particular, prior to or at the February 2014 hearing.

17Having regard to Rule 26.5(a) of the Tribunal’s Rules, the applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. I find that the applicant’s submissions in this Request concerning lost wages amount to additional argument on issues already fully canvassed before the Tribunal.

18I also find that the applicant has not established the existence of any of the other criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision with respect to lost income, including that any factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

19This aspect of the applicant’s Request is denied.

Apology

20The applicant submits that he still requests that the respondent make an apology. He submits, among other things, that the respondent is a large organization and should take social responsibility.

21I 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 with respect declining to order the respondent to provide an apology.

22This aspect of the applicant’s Request is also denied.

Additional issue

23The applicant also submits in his Request that he received the monetary remedy that the Tribunal ordered for injury to dignity, feelings and self-respect; however, he did not receive any amount for pre-judgement interest, which he requests.

24The Tribunal does not enforce its own orders. Rather, the authority to enforce an order of the Tribunal lies with the Courts, pursuant to s. 19 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

25While the Tribunal does not enforce its own orders, I simply note that the Tribunal did order in its Decision that the respondent provide the applicant with pre-judgement interest, as well as post-judgement interest on any amount not paid within 30 days of the date of the Decision, as set out above.

Conclusion

26In 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.