Marcello Bottiglia v. Ottawa Catholic School Board, 2015 HRTO 1599

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marcello Bottiglia

Applicant

-and-

Ottawa Catholic School Board

Respondent

RECONSIDERATION DECISION

Adjudicator: Eric Whist Date: November 26, 2015 Citation: 2015 HRTO 1599 Indexed as: Bottiglia v. Ottawa Catholic School Board

WRITTEN SUBMISSIONS

Marcello Bottiglia, Applicant

Pasquale Santini, Counsel

INTRODUCTION

1On September 4, 2015, the Tribunal issued its Decision, 2015 HRTO 1178 (the “Decision”), finding that the respondent had not discriminated against the applicant on the basis of disability or reprisal. The Tribunal determined that the respondent had met its procedural duty to accommodate the applicant, finding that the respondent’s actions, including requesting that the applicant undergo an Independent Medical Examination, (an “IME”) were reasonable.

2On September 30, 2015, the applicant filed a Request for Reconsideration (“Request”) of the Decision.

RELEVANT LAW, RULE AND PRACTICE DIRECTION ON RECONSIDERATION

3Under 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 relevant Tribunal Rule is Rule 26 which reads, in part, as follows:

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 and orders.

4The Tribunal’s Practice Direction on Reconsideration includes the following statements:

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.

5As 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.

6In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, (“Sigrist”) the Tribunal also indicated that 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.

REQUEST FOR RECONSIDERATION

7In his Request for Reconsideration, the applicant submits that the Tribunal’s determination that the respondent met its procedural duty to accommodate the applicant was not reasonable in view of the evidence and that it constitutes an error in fact and in law. The applicant submits that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5 (a) (c) and (d).

DECISION

8Having reviewed the applicant’s submissions, I find that the applicant has not met the burden of establishing that any of the criteria justifying reconsideration set out in Rule 26.5 apply in his case, and consequently his Request for Reconsideration is dismissed.

ANALYSIS

9The applicant submits that the Decision is in conflict with established jurisprudence which is, pursuant to Rule 26.5 (c), a basis for seeking a reconsideration. The applicant submits that the respondent made no effort to obtain relevant information about the applicant’s disability other than to demand the applicant undergo an IME, which the applicant submits is contrary to established Supreme Court of Canada jurisprudence and constitutes a significant change in an employer’s obligation to accommodate. The applicant submits that the respondent’s insistence on an IME before requesting information from the applicant and his treating physician is unprecedented and contrary to established jurisprudence of the Tribunal and other human rights tribunals across Canada.

10The issue of whether it was reasonable for the respondent to want to rely on an IME in order to obtain information related to the applicant’s medical condition and accommodation needs was addressed at length in the Decision. The respondent’s obligations to accommodate the applicant were set out in the context of the established jurisprudence, including the Supreme Court of Canada decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), and Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (S.C.C.), [1992] 2 S.C.R. 970 (“Renaud”), as well as additional case law including Adga Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, 295 DLR (4th) 425 (ON S.C.D.C.), and Baber v. York Region District School Board, 2011 HRTO 213. The Decision subsequently determined that it was reasonable for the respondent to seek a second medical opinion about the applicant’s condition and accommodation needs and to do so by means of an IME in order to meet its required duty to accommodate the applicant.

11In his Request for Reconsideration the applicant makes the general statement that this determination is at odds with established Supreme Court jurisprudence and the case law of the Tribunal and other human rights tribunals. However, the applicant does not cite any specific legal decisions to support his proposition nor to explain why the jurisprudential framework the Decision relies on is flawed. He has not provided any case law or argument to support his contention that the respondent’s requesting of an IME is either unprecedented or somehow at odds with a respondent’s duty to accommodate. Given these circumstances I am not persuaded that the Decision is in conflict with established jurisprudence.

12The applicant further submits that the Decision is not consistent with the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate that states that no one can be forced to submit to an IME. However, the respondent has not shown why this policy position should be given jurisprudential authority. Moreover, it is not clear that the Tribunal’s Decision is, in fact, in conflict with this policy. What the Commission specifically states in its Policy and Guidelines on Disability and the Duty to Accommodate (a passage that was quoted in the Decision) is that:

There may be instances where there is a reasonable and bona fide basis to question the legitimacy of a person’s request for accommodation or the adequacy of the information provided. In such cases, the accommodation provider may request confirmation or additional information from a qualified health care professional to obtain the needed information. No one can be forced to submit to an independent medical examination, but failure to respond to reasonable requests may delay the provision of accommodation until such information is provided.

13In its Decision the Tribunal found that there was a reasonable basis for the respondent to question the legitimacy of the applicant’s request for accommodation and the adequacy of the information he provided and to want additional information from a health professional. The Decision noted that when the respondent wrote to the applicant on September 21, 2012, stating that it was of the view that the circumstances of the applicant’s case warranted an IME, the applicant replied in a letter dated September 27, 2012, stating that while he was of the view that the respondent did not have the authority to oblige him to attend an IME he was prepared to undergo an IME (subject to certain conditions) because of his interest in returning to work. I fail to see, given these circumstances, that the Tribunal should have determined that the respondent’s actions were in conflict with the Commission’s policy.

14The applicant takes issue with how the Tribunal considered and weighed the evidence before it. He cites a number of instances in which he states the Tribunal made errors in fact and law when it made findings in relation to the evidence before it. The applicant submits that these errors included:

• the Tribunal ignoring the evidence that the respondent made no effort to assist the applicant to get well while he was absent from the workplace;
• the Tribunal preferring the evidence of Mr. Hanlon, a non-medical person to that of Dr. Levine the applicant’s psychiatrist;
• the Tribunal failing to find that the respondent had breached the conditions of the IME when it communicated with the IME examiner;
• the Tribunal not accepting that the applicant had reason to not attend the IME because of the prejudicial contact the respondent had with the IME examiner;
• the Tribunal preferring the respondent’s evidence about requesting an IME under its Management Guide to Workplace Accommodation for Employees and rejecting the applicant’s claim that his employment contract exempted him from the requirements of this guide.

15I do not need to address the specifics of these contentions. The applicant’s disagreement with the findings that the Tribunal made in relation to the evidence before it is not a basis for reconsideration under Rule 26.5. A Request for Reconsideration is not an opportunity to restate or re-argue evidence already advanced and considered (Sigrist). The Tribunal’s jurisprudence is clear that a Request for Reconsideration is not an appeal, an opportunity to re-argue a case or an opportunity for a party to add additional arguments; nor is it available simply because a party disagrees with a Tribunal decision. There must be more than disagreement with a decision or an alleged error to find that the conditions in Rule 26.5 have been reached. See, for example, Latronico v. York Region District School Board, 2012 HRTO 637.

16The applicant also submits that the Tribunal’s determination that it would not consider the applicant’s proposal for a further IME in February 2013 in its Decision because it occurred after the Application was filed in November 2012 was an error. He submits this is because the proposed further IME and other events after November 2012 were plead in an amended Application, evidence was led at the hearing about these events, and the Tribunal gave no notice to the parties that it was not intending to consider this evidence. The applicant submits that if these events were not relevant they should not have been allowed into evidence. The applicant submits that it was incumbent on the Tribunal to give clear and cogent reasons for not considering evidence that was before it and that the Tribunal’s decision not to consider this evidence goes against the practice of the Tribunal and the practice of the Courts. If nothing else the applicant submits the Tribunal could now consider the applicant’s efforts regarding a further IME in February 2013 as new evidence under Rule 26.5(a).

17The applicant’s summation is not entirely accurate. The applicant filed his Application in November 2012, alleging that the respondent had failed to accommodate his return to work. In April 2013, he filed a request to amend his Application explicitly on the basis that the respondent had subjected him to several acts of reprisal. The request to amend was allowed. It is noted that while the request to amend referred to a number of events after November 2012 (and until January 2013) none of these were in relation to the applicant making further proposals about an IME or in relation to the applicant’s allegations that the respondent had failed to accommodate his return to work. They were only in relation to alleged reprisal.

18The Tribunal did provide explicit reasons in its Decision for not considering the events in February 2013 about a proposed IME when it was assessing the respondent’s duty to accommodate. It stated:

It is important to state here that in considering the allegations of discrimination based on disability and the issue of whether the OCSB [the respondent] met a duty to accommodate the applicant I am considering the actions of the parties up until November 22, 2012, at which point the applicant filed his Application. I recognize that a duty to accommodate does not necessarily end when the person seeking accommodation files an Application with the Tribunal and there may be an issue, under these circumstances, as to what allegations are properly before a Tribunal panel. However, I note that in April 2013 the applicant requested that his Application be amended to include allegations related to events after November 2012. These additional allegations were only in relation to the issue of reprisal. The applicant raised no further allegations about the OCSB’s actions in relation to the accommodation process. Accordingly, I see no basis for considering events after November 22, 2012 in relation to the OCSB’s duty to accommodate.

19It is true that the Tribunal heard evidence about events after November 2012, including briefly about events in February 2013 related to the applicant’s resignation and the parties’ discussion about a further IME. This was evidence about how the applicant’s relationship with the respondent continued and then ended with his resignation in February 2013 and as such relevant. The fact that the Tribunal heard evidence about events in February 2013, including the applicant’s proposal about a further IME, does not necessarily mean that it had to consider this evidence in its final determinations on the specific issue of the respondent’s duty to accommodate. This was clearly stated in the Decision. I do not see the decision to not consider certain evidence to be at odds with the practices of the Tribunal, as has been suggested by the applicant. I also do not see that the events of February 2013 should now be considered as new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, pursuant to Rule 26.5(a). It is information that the applicant could have included in his request to amend his Application filed in April 2013 (and as an allegation of discrimination related to a failure to accommodate).

20Finally, the applicant also refers to Rule 26.5(d), submitting that the Tribunal should reconsider this matter on the basis that there are other factors that exist that outweigh the public interest in the finality of Tribunal decisions. Specifically, the applicant submits that the respondent’s failure to obtain relevant information about the applicant’s disability from the applicant and his attending physician rather than demanding an IME warrants reconsideration under Rule 26.5(d).

21I agree that when and why an IME should be utilized is an important issue. As noted in the Decision it is an issue has been the focus of many substantive legal arbitration decisions. It is also an issue that has not been particularly examined by the Tribunal. However, in this case the Tribunal has determined, based on the case law regarding the duty to accommodate and the facts of the case, that the respondent’s actions, including a request for an IME, were reasonable.

22For all these reasons the applicant’s Request for Reconsideration is dismissed.