HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sandra Viegas
Applicant
-and-
BANIF Banco Internacional do Funchal, S.A. and José Faria
Respondents
RECONSIDERATION DECISION
Adjudicator: Kathleen Martin
Indexed as: Viegas v. BANIF Banco Internacional do Funchal, S.A.
WRITTEN SUBMISSIONS
Sandra Viegas, Applicant
Self-represented
BANIF Banco Internacional do Funchal, S.A. and Jose Faria, Respondents
Andrew W. MacDonald, Counsel
1On November 18, 2013, the Tribunal issued its Decision, 2013 HRTO 1903, dismissing the Application. The Tribunal found that although the facts in the case were close to the line, on balance, it was satisfied that the Application was outside of the Tribunal’s jurisdiction because the operation of the respondent BANIF Banco Internacional do Funchal, S.A. (“BANIF Banco”) and its labour relations were subject to federal jurisdiction.
2On September 24, 2014, the applicant wrote to the Tribunal enclosing a copy of a decision of the Canadian Human Rights Commission (“Commission”). On September 10, 2014, the Commission decided not to deal not to deal with the applicant’s analogous complaint on the basis that the respondent was not a federally-regulated bank. The applicant has asked the Tribunal to reconsider its Decision.
3I have decided to grant reconsideration. My reasons follow.
BACKGROUND
4The Application alleged discrimination in employment. The applicant alleged that she was subjected to inappropriate questions and comments during an interview for a position in a foreign bank representative office. The respondents filed a Response in which they raised an objection to the Tribunal’s jurisdiction on the basis that BANIF Banco’s operation and its labour relations are federally-regulated. While notice was provided to the Attorneys General of Ontario and Canada, neither sought to intervene and a preliminary hearing was scheduled.
5During the hearing, the respondents called evidence which was largely uncontested and made submissions in support of their position that the corporate respondent is federally regulated. The respondents submitted that BANIF Banco is a foreign bank within the meaning of the Bank Act, S.C. 1991, c. 46 (“Bank Act”), is subject to the federal regulatory regime governing banks and is engaged in the business of banking. The applicant, who was self-represented, made only brief submissions to the effect that the corporate respondent is an office representing a bank and therefore was within the Tribunal’s jurisdiction.
6Prior to the Tribunal issuing its Decision, the applicant contacted the Commission. According to the applicant, the Commission requested a decision in writing from the Tribunal before it would process her complaint.
7As indicated above, the Tribunal issued its Decision on November 18, 2013. The Tribunal defined the issue in the case as whether the representative office which the respondent operated in Toronto was engaged in banking either directly or as an integral part of a federal undertaking. The Tribunal found that the respondent was a foreign bank, which if operating a branch in Canada would be a federal undertaking. On the basis of the facts presented, the Tribunal concluded that it was satisfied that the representative office is part of a federal undertaking or in any event integral to a federal undertaking.
8On June 27, 2014, the applicant filed the Request for Reconsideration (“Request”). In the Request, the applicant submitted that there are new facts and evidence and that the Tribunal’s Decision is in conflict with established case law. In her submissions, the applicant stated that that the respondent is not federally-regulated as it is not listed in Schedules I, II or III of the Bank Act, and that none of its regular and habitual activities fall under any other federal head of power. The applicant referenced a report received from the Commission. No decision from the Commission was included.
9On July 11 and 15, 2014, the Tribunal issued directions to the parties. Among other things, the Tribunal directed the applicant to file a copy of the Commission’s Decision when received and directed the respondents to file a response to the Request following their receipt of the same. The Tribunal also provided notice to the Attorneys General of Ontario and Canada.
10On September 24, 2014, the applicant filed the Commission’s Decision. The Commission decided not to deal with the complaint under paragraph 41(1)(c) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6. The Commission adopted the following conclusion as its reasons:
It is plain and obvious that Banif Banco Internacional do Funchal, SA is not a federally regulated bank as it is not listed in Schedules I, II or III of the Bank Act. Furthermore, none of the respondent’s regular and habitual activities fall under any other federal head of power. As such, the complaint is beyond the Commission’s jurisdiction.
11On November 3, 2014, the respondents filed their Response to the Request. The respondents state that they do not oppose the applicant’s Request. The respondents express the view that while there may be good reason to resist the request, prolonging it further will not serve anyone’s interests.
12Neither of the Attorneys General sought leave to intervene. In the case of the Ministry of Attorney General, the representative stated that Ontario did not feel it was necessary to weigh in and make constitutional submissions as it understood based on its inquiries that the respondents were prepared to proceed with the Application on the merits or in any event not object to the granting of the request and in the particular circumstances of this case, the respondents were prepared to attorn to the constitutional jurisdiction of the Tribunal and were not maintaining or pursuing their submission that it be brought or initiated at the Commission.
DECISION
13Under 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.
14Rule 26 states in part:
26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days from 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.
15The first issue I need to address is the timing of the applicant’s Request. In this case, the Decision was issued on November 18, 2013, and the Request was not filed until June 27, 2014.
16Although the Tribunal’s Rules of Procedure require that a request for reconsideration be made within 30 days of the date of the decision, I have the discretion to waive or vary time limits in the Rules. In this case, it would appear that the applicant did not file the Request until she received a copy of a report to be considered by the Commission on the jurisdictional issue which appears to be a report of the resolution services division recommending that the complaint was outside of the Commission’s jurisdiction. I am prepared to waive the time limit for filing. In my view, there appears to be a good faith explanation for the applicant’s delay insofar as the applicant filed her Request promptly once she received this report. Further, there is no claim of prejudice by the respondents. Indeed, the respondents raise no objection on any basis to the applicant’s Request.
17The next issue is whether or not the applicant has established any of the criteria justifying reconsideration. As set out above, the applicant relies on there being new facts or evidence (Rule 26.5(a)) and that the Tribunal’s Decision is in conflict with established case law (Rule 26.5(c)).
18There is no basis for granting reconsideration under Rule 26.5(a). While restating some of the facts presented in the hearing, the applicant has not cited any new facts or evidence that would potentially be determinative of the case and that could not reasonably have been obtained earlier.
19I also find that there is no basis for granting reconsideration under Rule 26.5(c). The Decision considered and applied the relevant case law and there exists no case that directly deals with the unique constellation of facts present in this Application.
20However, I do find it appropriate to grant reconsideration having regard to Rule 26.5(d).
21As indicated above, the respondents are no longer advancing the position that BANIF Banco is outside the Tribunal’s jurisdiction. While the respondents’ submissions have been limited, the respondents do not appear to be maintaining their position that BANIF Banco is federally-regulated. Notably, the material provided by the applicant suggests that the respondents did not make any submissions during the Commission process and while directed to clarify their position in a Case Assessment Direction dated January 22, 2015, the respondents declined to do so other than by reiterating that they do not oppose the applicant’s Request.
22Further, the Commission has taken the position that it does not have jurisdiction.
23While I acknowledge that there is a significant public interest in the finality of decisions, there is likewise a significant public interest in a party being able to have the merits of human rights allegations heard. The applicant has been to this Tribunal, has attempted to have the Commission hear her case, and is now trying again to have the Tribunal proceed with the case. Granting reconsideration will provide a forum where the parties’ substantive legal dispute can be determined.
24Finally, the law with respect to determining the jurisdiction of labour relations in banking operations is complex and arguably supports differing interpretations and jurisdictional results for the particular facts presented. As mentioned above, the facts in this Application related to the jurisdictional question were close to the line and a closer review of the relevant jurisprudence, including Canadian Pioneer Management Ltd. et al. v. Labour Relations Board of Saskatchewan et al., 1979 CanLII 180 (SCC), [1980] 1 SCR 433, supports a determination that the respondents are not engaged in banking.
25Having regard to all of the foregoing reasons, the Request is granted and the Decision is set aside. The Tribunal finds that the Application is within the jurisdiction of the Tribunal.
NEXT STEPS
26The Application will continue. The Tribunal will convene a conference call with the parties at the earliest possible date to determine next steps including the parties’ interests in mediation, mediation/adjudication and/or proceeding directly to hearing.
27A copy of the Tribunal’s Mediation/Adjudication agreement will be forwarded to the parties by the Registrar.
Dated at Toronto, this 11th day of March, 2015.
“Signed by”
Kathleen Martin
Vice-chair