Hitchcock v. Lafarge Canada Inc., 2015 HRTO 1296

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stanley Hitchcock

Applicant

-and-

Lafarge Canada Inc. and Christopher White

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson

Date: September 30, 2015

Citation: 2015 HRTO 1296

Indexed as: Hitchcock v. Lafarge Canada Inc.

WRITTEN SUBMISSIONS

Stanley Hitchcock, Applicant ) Ian A. Wilson, Counsel

1On June 4, 2015, the Tribunal issued its Decision in this Application, 2015 HRTO 731, dismissing the Application. On July 8, 2015, the applicant filed a Request for Reconsideration (“Request”).

background

2The applicant was employed by the organizational respondent as a “Ready Mix” truck driver. The Application alleged discrimination in employment on the basis of disability, and concerned events in 2007 and 2008.

3More particularly, the applicant essentially alleged that, in 2007, the respondents failed to accommodate his disability by insisting that he keep working, until he provided a medical note in November 2007. The applicant also alleged, among other things, that he was subjected to discrimination when the respondents failed to accommodate a disability-related absence, placed unreasonable requirements on him regarding the provision of medical documentation in relation to his absence, and terminated his employment in October 2008.

4The Tribunal’s findings in the Decision included that the applicant had a kidney stone condition that constituted a disability within the meaning of the Code, but that he did not actually request any accommodation, or reasonably make any disability-related needs known, prior to providing the respondents with a medical note in November 2007.

5The Tribunal also found that it was not clear that the applicant had a disability-related need to be absent from work in October 2008, but that, if he did, the respondents would not have reasonably been aware that he had any disability-related needs requiring accommodation. In particular, the Tribunal did not find that the respondents failed to accommodate the applicant in terms of not providing him with a reasonable opportunity to provide medical documentation.

6The Tribunal also did not find that disability was a factor in the termination of the applicant’s employment. Rather, the Tribunal found that the applicant’s employment was terminated because the respondents were not able to contact him and he was not able to communicate with them about the requirement to provide a medical note for his absences, because he was in police custody, and not for any reasons related to disability. The Tribunal also found that the evidence did not support the applicant’s contention that the respondents terminated his employment because they did not want to accommodate him, having done so in 2007, or that perceived disability may have been a factor in the termination of his employment.

THE REQUEST FOR RECONSIDERATION

7In the Request, the applicant submits that the Tribunal’s Decision contains the following errors:

i. The applicant’s credibility was unfairly and improperly damaged by extremely prejudicial and irrelevant evidence that should have been excluded by the Tribunal;

ii. The substance of the applicant’s allegation of disability based discrimination was not entirely dependent on his credibility, and was sufficiently supported by other independent and objective direct and circumstantial evidence;

iii. The Tribunal did not take into account the logical inference, from all of the circumstances, including the applicant’s prior absence from work for at least 6 weeks in November and December of 2007 for kidney stones and subsequent lithotripsy, his medical treatment and pain medication prescribed in August and September of 2008, that the applicant had reasonably raised, and acting objectively reasonably would have raised, the kidney stone issue in the period October 16, 2009 [sic] and the following week;

iv. The respondent employer had a ‘duty to inquire’ about whether disability was involved in the applicant’s continued absence from work as of mid-day October 16, 2008, which issue, perhaps due to the respondent’s improper colouring of the complaint as being about the applicant’s character, the Tribunal unfortunately failed to consider and address the logical inference from the entire circumstances that the disability was sufficiently known to the employer to trigger that duty to inquire;

v. There was absolutely no time sensitivity justifying the respondent’s precipitous termination of the applicant, given that it was late October and the end of the cement season, and accordingly a discriminatory motive should further be inferred; and,

vi. The Tribunal improperly ignored general and public interest matters.

8The applicant’s Request also includes submissions addressing the alleged errors, which the Tribunal has considered.

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 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; and

• 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(c) and (d) of the Tribunal’s Rules in his Request.

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 alleged error i.

15The applicant submits in his Request that the Tribunal appears to have been influenced by irrelevant and extremely prejudicial information regarding criminal offences that he was charged of, and eventually pled guilty to five years later as a result of a lack of bail. He submits that the offences to which he pled guilty are odious and reprehensible, but they are not relevant to his Application. The applicant submits that the Tribunal did not embark on a full inquiry because of “this prejudice”.

16With respect to the applicant’s assertion that his credibility was damaged by extremely prejudicial and irrelevant evidence that should have been excluded, it was the applicant who insisted on testifying about his criminal charges and what they related to in his evidence-in-chief, despite the Tribunal raising concerns about the relevance of that evidence to the issues of alleged discrimination before the Tribunal.

17In any event, the applicant’s assertion that the Tribunal appears to have been influenced by irrelevant but extremely prejudicial information is a bald assertion. The Tribunal’s Decision is based on the evidence summarized in the Decision that is relevant to the applicant’s allegations of discrimination. While the Decision refers to evidence that the police attended the applicant’s home on October 23, 2008, placed him under arrest and took him into custody, there is no mention of the applicant’s charges in the Decision. I find that the applicant has simply made a bald assertion that the Tribunal’s Decision was influenced by irrelevant information, but he has not shown how or where in the Decision this has actually occurred.

18The applicant also submits that his true legal surname was brought into question by the respondents, as well as the fact that he misrepresented his name to a criminal court and, as a result, was charged with perjury. The applicant submits that “this further admittedly discomforting information about [his] credibility” became a large “red herring” that pervaded the hearing, and ultimately appears to have tainted the Tribunal’s analysis and Decision.

19As the Tribunal noted in a “Background” section of the Decision, the applicant confirmed in cross-examination that his last name is Mercer, but he uses Hitchcock, which he described as a pseudonym. It also appeared from a court document the respondents provided at the hearing that the applicant has different birth dates and middle initials related to each name.

20Again, the applicant’s assertion that information about his true legal surname appears to have tainted the Tribunal’s analysis and Decision is a bald assertion. As stated above, there is no mention of the applicant’s charges in the Decision, including that the applicant was charged with perjury. While the Decision refers to the applicant’s evidence that he uses a pseudonym, the applicant did not explain, nor was he asked at the hearing, why he uses a pseudonym. Ultimately, there is no basis to suggest that the applicant’s use of a pseudonym factored into the Tribunal’s Decision, including any credibility determinations involving the applicant. Again, I find that the applicant has simply made a bald assertion that the Tribunal’s Decision was tainted by particular information, but he has not shown how or where in the Decision this has actually occurred.

21I am not satisfied that the applicant has established that the Tribunal’s Decision was based on any irrelevant considerations that would warrant reconsideration.

Applicant’s alleged error iv.

22The applicant submits that the “duty to inquire” was raised by the circumstances of this case and required a reasonable effort by the respondents to determine what the applicant’s true medical situation was. He submits that, in order to trigger the duty to inquire, all that is needed is some information to cause the employer to be reasonably aware that disability may have been a factor in the inability to attend work. The applicant submits that, in this case, the threshold was met, but the Decision does not consider the issue. In support of his argument, the applicant refers to a decision of the British Columbia Human Rights Tribunal (the “B.C. Tribunal”), Mackenzie v. Jace Holdings and another (No. 4), 2012 BCHRT 376, and cases cited therein. In Mackenzie, at para. 31, the B.C. Tribunal noted that a respondent’s failure to make inquiries regarding the health of an employee before taking steps that adversely affect that employee’s employment situation, where the respondent has reason to suspect that a medical condition may be impacting the employee’s ability to work, has been found to be discriminatory in certain instances.

23In my view, the present case is quite different from cases where an employer is aware, or reasonably ought to be aware, that there may be a relationship between an employee’s disability and performance, and makes an adverse decision based on performance without inquiring into the possible relationship between the employee’s disability and performance. See Mackenzie, at para. 38, referring to Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37.

24In the present case, the Tribunal found that it was not clear that the applicant had a disability-related need to be absent from work in October 2008, but that, if he did, the respondents would not have reasonably been aware that he had any disability-related needs requiring accommodation. In any event, the respondents were seeking medical documentation from the applicant concerning his absences from work. In particular, the Tribunal found that the applicant met with the individual respondent on October 22, 2008, and agreed to return to work the next day with a medical note. The Tribunal ultimately found that the applicant’s employment was terminated because the respondents were not able to contact him on October 23 and 24, 2008, and he was not able to communicate with them about the requirement to provide a medical note for his absences, because he was in police custody, and not for any reasons related to disability. The applicant was deemed to have abandoned his position, after he was absent and did not reasonably communicate with the respondents.

25In the circumstances, I do not find that the Tribunal’s Decision is in conflict with established case law, and I am not satisfied that the Mackenzie case and the cases cited therein, addressing the duty to inquire, provide any basis for reconsideration in the present case.

Applicant’s alleged errors ii., iii., v. and vi.

26In the remainder of the applicant’s submissions in support of his Request, the applicant appears to be simply re-arguing his case before the Tribunal. 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.

27Having considered the applicant’s remaining submissions in the Request, I find that the applicant makes additional arguments concerning the weight he believes the Tribunal ought to have given to various aspects of evidence. I find that the remainder of the applicant’s submissions in his Request amount to additional argument on issues already fully canvassed before the Tribunal, and are not a proper basis for reconsideration.

Conclusion

28I 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.

29In the circumstances, I need not address that the Request was made beyond the 30-day time period for requesting reconsideration in Rule 26.1 of the Tribunal’s Rules.