HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jimmy Zaromitidis
Applicant
-and-
Toronto Police Services Board and Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community Safety and Correctional Services
Respondents
RECONSIDERATION DECISION
Adjudicator: Eric Whist
Indexed as: Zaromitidis v. Toronto Police Services Board
WRITTEN SUBMISSIONS
Jimmy Zaromitidis, Applicant
Self-represented
Introduction
1In 2010 the applicant applied to be a police constable under the Constable Selection System (“CSS”). The CSS is an application process developed by the Ministry of Community Safety and Correctional Services (the “Ministry”) in consultation with the Ontario Association of Chiefs of Police that utilizes standardized criteria and tests. The CSS consists of three assessment stages. Stage 1 consists of a series of six tests including a test of an applicant’s hearing acuity. Applicants who successfully complete Stage I of the CSS receive a Certificate of Results that allows them to then apply to any police service in Ontario that employs the CSS as part of its application process. Forty-three police services in Ontario rely on the CSS process including the Toronto Police Services (“TPS”).
2The applicant failed the CSS’s hearing acuity test and consequently failed to pass Stage 1 and to receive his Certificate of Results. The applicant subsequently filed an Application alleging that the hearing acuity test was discriminatory. He also made a number allegations against the TPS including allegations about their recruitment process and failure to accept him as an applicant because he did not have a Certificate of Results. He further alleged that TPS Inspector Mackrell subjected him to discrimination based on race, ethnic origin and age.
3In a Decision dated September 3, 2014, 2014 HRTO 1296, I determined that the Ministry had not met the onus of showing that the hearing acuity requirements that the applicant had failed to meet were bona fide occupational requirements. I ordered the Ministry to pay the applicant $8,000 as compensation for injury to dignity feelings and self-respect. I dismissed the applicant’s other allegations against the TPS.
4On October 3, 2014, the applicant filed a Request for Reconsideration asking that the Tribunal reconsider my Decision. The applicant provided written submissions in support of his request for reconsideration.
REQUESTS FOR RECONSIDERATION
5Under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (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 26.5 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.
6The Tribunal has also issued a Practice Direction to provide guidance on how the Tribunal exercises its reconsideration powers (Practice Direction on Reconsideration). The Practice Direction states, in part, that:
Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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.
7As is evident from the Rules and made explicit in the Practice Direction, reconsideration is discretionary. It is not an appeal or an opportunity to re-argue a case. As the Tribunal states in Espey v. London (City), 2009 HRTO 271, reconsideration is not an opportunity for a party to add additional arguments upon learning that its original position was unsuccessful. Also, as the Tribunal states in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, 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.
ANALYSIS
8The applicant’s written submissions raise a broad range of issues, not all of which relate to his Tribunal hearing and my subsequent Decision. He raises concerns, for example, about the Ministry of Transportation’s licensing requirements and the mediation discussions that took place between the parties prior to the hearing. The applicant raises other issues that do relate to my Decision, but it is not evident why the applicant believes these issues are a basis for a Request for Reconsideration. Other requests are clearer. I will address the issues that appear to be relevant to a Request for Reconsideration.
9The applicant submits that he was never aware of any of the information contained in the documents that the Ministry relied on at the hearing which included extensive documentation related to the Ministry’s efforts to establish and later amend the hearing acuity test standards. The applicant appears to be raising an issue that he was procedurally disadvantaged in the hearing process, an issue that could be potentially considered pursuant to Rule 26(5)(c) and (d).
10However, the documents in question were properly disclosed by the Ministry to the applicant in advance of the hearing and were entered into evidence by the Tribunal at the hearing (on the consent of all the parties). I do note that later in the proceedings the applicant did declare he did not want all these documents and that he just needed the respondents’ witness statements.
11I find there is no procedural unfairness arising out of the applicant’s stated unfamiliarity with some of the respondents’ documents and his apparent decision not to consider or rely on the documents that were properly disclosed to him (and which were referred to throughout the hearing). Accordingly, I find no basis for reconsideration pursuant to Rule 26.5 and in particular Rule 26.5 (c) and (d).
12The applicant refers in his submissions to a number of incidents he had with TPS personnel some of which were identified in his Application and/or were raised at the hearing, others not. Most of these relate to allegations of bribery while others provide additional information about alleged interactions the applicant had with Inspector Mackrell and with TPS recruitment officers.
13This new information does not constitute a basis for reconsideration pursuant to Rule 26(5)(a). The information about the alleged bribery is not potentially determinative of the case, as required by Rule 26(5)(a), given that it is not relevant to the issues I had to decide. At the hearing the applicant indicated that his allegations related to bribery were not Code-related and I subsequently ruled that I would not hear evidence about this alleged misconduct (see paragraph 89 of the Decision). The further information the applicant has provided about Inspector Mackrell and TPS recruitment officers is also largely irrelevant as it does not raise or relate to any allegations of discriminatory treatment. Moreover, none of this information constitutes new facts or evidence that could not reasonably have been obtained earlier (and thus presented at the hearing), a further requirement of Rule 26.5(a).
14The applicant submits that the TPS, as well as the Ministry, should have been held liable for discriminating against the applicant. It appears the applicant is of the view that the TPS should be held liable for both the CSS standard that I ultimately found to be discriminatory and the TPS’s further decision not to accept an application from the applicant on the basis that he failed to obtain a Certificate of Results, having failed to meet all of the Stage 1 CSS standards.
15However, these issues were fully canvased at the hearing. I heard submissions from the parties on the issue of liability of the TPS in the event I was to find that the hearing standards were discriminatory. I subsequently arrived at the following conclusions in my Decision at paragraphs 77 and 87:
I find no basis for holding the TPSB liable for the CSS hearing standards. The CSS process and the Stage 1 tests were developed by the Ministry and although this was done with input from representatives from various police forces the CSS process and tests are the intellectual property of the Ministry. The TPSB had no direct involvement in the applicant’s hearing test process. The applicant never had filed an application with the TPSB. Under the circumstances I fail to see why the TPSB would be anymore liable than any other police force. In my view it is only because the applicant proceeds to have other dealings with the TPSB that he seeks to have them found liable for his having failed the CSS Hearing test.
I do not agree…that the TPS should have been prepared to consider and accept an application from him [the applicant] and the failure to do so was discriminatory. I find that it was reasonable for the TPS to rely on the CSS process and to maintain that passing all of the Stage 1 tests was a necessary requirement before the TPS would consider an application to become a member of the TPS. The fact that I have now determined that the required level of hearing acuity for the Stage 1 hearing test was not a bona fide occupational requirement does not mean that there was a further act of discrimination when the TPS did not accept or consider accepting an application from the applicant after he had failed the CSS hearing test. Put another way I do not find that the TPS was required to make an independent assessment of the applicant’s hearing and whether he could be accommodated as a TPS officer.
16While the applicant clearly disagrees with these determinations not to find the TPS liable he has provided no arguments to indicate why these determinations should be reconsidered pursuant to Rule 26.5, for example because they are in conflict with established jurisprudence and involves a matter of general or public importance (Rule 26.5(c)) or there other factors that, outweigh the public interest in the finality of Tribunal decisions (Rule 26.5(d)). In the absence of these arguments, the submissions are simply an attempt to reargue a finding or an issue determined at the hearing.
17The applicant submits that I should have made further determinations regarding the Ministry’s testing process for persons who rely on hearing aids since he did express concerns during the hearing about this testing process.
18In the Decision, I considered the fact that the applicant’s allegations of discrimination were about how his hearing was tested and evaluated (by use of an audiogram) and that this testing methodology applies to how persons with hearing aids are also tested. While the applicant did make some reference to the Ministry’s testing of persons with hearing aids during his testimony, the further issue of how or why persons with hearing aids were subject to testing with and without their hearing aids was not a matter I needed to determine as it did not directly relate to how the Ministry treated the applicant. In my view I appropriately addressed this when I stated the following at paragraphs 45-47 of my Decision:
The applicant is, essentially challenging only one of the four standards used in the CSS hearing test, Unassisted Criteria II. It was the failure to meet this criteria that led to his failing the hearing test. Unassisted Criteria I is used only to initially screen candidates and Assisted Criteria I and Unassisted Criteria IA are applied to persons who rely on CIC Hearing Aids.
However, all four criteria rely on applicants meeting certain hearing thresholds or standards when their hearing is tested by means of an audiogram, the principal means the CSS process relies on to determine whether an applicant’s hearing acuity is sufficient to become a police officer. Consequently, in my view all four of these standards are similar in nature and my findings apply to the appropriateness of the CSS hearing test process relying on all of them.
However, that said it is important to note that the applicant is not challenging the fact that the CSS hearing test allows for persons with hearing aids (and only certain types of hearing aids) to be tested and that the CSS hearing test requires these persons to pass two sets of criteria, one while they wear their hearing aids and one when they do not. As a consequence I will not make findings as to whether how the CSS testing process considers persons with hearing aids (i.e. making them pass two sets of criteria) is discriminatory or a reasonable form of accommodation. (para 45
19The applicant submits that I should have explicitly ordered the Ministry to change its hearing testing process in light of my determination that this process was discriminatory. He submits this would have been an appropriate public interest remedy.
20In my Decision I clearly considered whether to order the Ministry to take certain actions and at paragraph 22 of the Decision decided against ordering a public interest remedy:
I have considered whether to make further public interest orders. However, I am satisfied that the Ministry has undertaken a comprehensive review of its hearing standards that will likely result in significant changes and that in the interim it has instituted an initiative so that it is no longer relying on the Unassisted Criteria II standard to reject applicants Accordingly, I find no need to make any further public interest orders.
21I do not believe that exercising my discretion in this manner is at odds with Tribunal jurisprudence or that there are any other factors under Rule 26(5) that would lead me to reconsider this determination, which considers the applicant’s understandable interest, namely future compliance with the Code.
22Finally, the applicant asks that if his Request for Reconsideration is granted that he would like to be provided with his Certificate of Readiness. For the purposes of this Decision I have considered whether this is, in itself, a basis for me to reconsider my Decision. Should the applicant be provided with a further remedy, namely a Certificate of Readiness?
23This is not a remedy the applicant requested at the hearing. Indeed, the applicant expressly stated on several occasions at the hearing that he no longer had an interest in pursuing a possible career in policing. The applicant has provided no explanation for why he wants or needs a certificate at this time. I see no reason, pursuant to Rule 26.5, to exercise my discretion and to reconsider my decision as to remedy now.
24For all of the above-noted reasons, the Request for Reconsideration is dismissed.
Dated at Toronto, this 10th day of March, 2015.
“Signed by”
Eric Whist
Member