Brettle v. General Motors of Canada Limited, 2015 HRTO 523

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerome Brettle Applicant

-and-

General Motors of Canada Limited Respondent

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle Date: April 23, 2015 Citation: 2015 HRTO 523 Indexed as: Brettle v. General Motors of Canada Limited

WRITTEN SUBMISSIONS

Jerome Brettle, Applicant Self-represented

General Motors of Canada, Respondent None

Introduction

1On August 8, 2014, the Tribunal issued its Decision in this Application, Brettle v. General Motors of Canada 2014 HRTO 1188 (Brettle), dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

2The Tribunal has not directed the respondent to provide a Response to the Request for Reconsideration.

3The Request for Reconsideration is denied for the reasons which follow.

Background

4The Tribunal’s Decision in Brettle found that the Tribunal lacks jurisdiction over this Application. The Application, filed July 15, 2013, is untimely and the Tribunal found that there was no good faith reason for the delay. Further, the Tribunal found that the central allegation in the Application was that the respondent failed to accommodate the applicant at work in 2002 and this allegation was previously subject of a 2007 complaint to the Ontario Human Rights Commission, which dismissed the complaint in 2008 on the basis of delay. The Tribunal also noted that this Application was not filed pursuant to s. 53(8) of the Code. Briefly, the background to this Application is as follows:

• the applicant was injured at the respondent employer in 2000 and was provided with an accommodated assignment, but in March, 2002, he had to leave the workplace due to illness and has not returned to work since that time. He alleges that the accommodated work was not appropriate and that the respondent failed to accommodate him properly.
• the applicant applied for and received Long Term Disability benefits in 2007 and retired from his job with the respondent on December 1, 2007.
• the respondent’s decision not to provide him with alternate accommodated work in 2002 was the subject of a complaint to the Ontario Human Rights Commission (OHRC) in 2007. The OHRC exercised its discretion and dismissed the complaint due to the applicant’s delay in filing it.
• the applicant met with representatives of the respondent in July, 2012, as he wished to discuss a letter from his doctor and he also sought a return to some form of accommodated work. He also made reference to documentation he said he received in August 2011 which he says confirms that the modified work he was performing in 2002 was not appropriate.

5The Tribunal found as follows:

• the Tribunal is without jurisdiction to consider the allegation of the respondent’s failure to provide accommodated work in 2002, as it is the same or substantially the same as the subject matter of the complaint he made to the OHRC in 2007, which was dismissed by the OHRC in 2008;
• the fact that the applicant cited a new document from August 2011 which indicated that the work the applicant had been doing at the respondent in 2002 was unsuitable, was not a new incident of discrimination, but at its highest was evidence supporting his allegations with respect to the respondent’s actions in 2002;
• the fact that the applicant met with the respondent on July 16, 2012 to discuss his restrictions and work at the respondent, was not a further incident of discrimination. No accommodated work was offered to the applicant at that time and the applicant alleges that this was a further incident of discrimination by the respondent. The Tribunal found that the meeting was not a further incident of discrimination but simply a continuing consequence of the respondent’s actions in 2002.
• there was no series of incidents.
• though the applicant submitted that he had diminished cognitive abilities which made him unable to appreciate the consequences of applying for Long Term Disability benefits and retiring in 2007, the Tribunal noted that he had pursued his rights with the Workplace Safety and Insurance Board, albeit with assistance, and he had been able to file a complaint with the OHRC in 2007. The applicant had not demonstrated good faith.
• Absent a series of incidents, and absent a good faith explanation for the delay in filing the application, the Tribunal dismissed the Application as outside of its jurisdiction for delay.

The Request for Reconsideration

6The Request for Reconsideration provides the following reason why the Tribunal should reconsider its Decision:

a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

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.

11I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

12As indicated above, the applicant relies on Rule 26.5 A (a). He submits that he has had to represent himself, but has suffered from depression and does not understand the “extensive legal complexities” of human rights. He submits that his good faith reason for not filing his Application earlier is that he suffered from depression and anxiety, and offers an August 24, 2014 letter from clinical psychologist Dr. S. Andrea Miller as “new evidence” of “depression since first being diagnosed by Dr. Muir 1995”. He submits that this is the reason he was unable to file his Application earlier. He submits that he did not really understand his diagnosis, and did not begin to take prescription medicine for his depression until August, 2014. He submits that he could not have provided the August 24, 2014 letter earlier due to his psychological condition. He reiterates his request for remedies.

13The applicant provides documentation relating to his Intent to Object to a Workplace Safety and Insurance Board Decision and the August 24, 2014 letter from Dr. Miller, and a December 11, 1995 letter from Dr. David C.F. Muir.

14The August 2014 letter from Dr. Miller states that the applicant is currently receiving therapy to address his major Depressive Disorder and symptoms of anxiety. The letter also states that “Based on Dr. David Muir’s December 1995 report, it appears that he was also exhibiting symptoms of depression at that time.” She notes that the applicant was not her client when he filed the Application, but states that as he “was experiencing symptoms of depression, it is likely that this interfered with his ability to meet deadlines”.

15The December 11, 1995 reporting letter from Dr. Muir to the applicant’s physician indicates that the applicant was seen by Dr. Muir as a referral to the Occupational Asthma Clinic. The bulk of the report deals with respiratory issues and the final paragraph states: “As a separate issue Jerome seems to be depressed. If you agree perhaps you would consider putting him on a suitable anti-depressive. He may not be receptive. I told him that I thought this might be a diagnosis, but he told me he did not wish to take treatment. I will be seeing him again on January 12, 1996.”

16The 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. Whatever weight may or may not be given to Dr. Muir’s evidence as expressed in the above-noted report which focuses on respiratory health, it is a report from 1995 and could reasonably have been obtained earlier. The August 2014 letter of Dr. Miller makes reference to the older, 1995 report and goes on to state what therapy he is “currently” receiving. She notes that she was not the applicant’s psychotherapist at the time he filed the Application though she states that he was experiencing symptoms of depression and opines that it “likely interfered” with his ability to meet deadlines. However, the applicant must provide a good faith explanation for why he did not file his Application within the one year period following the 2002 allegation of a failure to accommodate. It is not the applicant’s possible diagnosis at the time he filed the Application in July, 2013, some ten years later, which is relevant. Accordingly, while the applicant seeks to present Dr. Miller’s letter as “new facts or evidence”, even if it were to be accepted at its face value, it is not evidence which could potentially be determinative of this case.

17Further, with respect to the applicant’s submission that he does not understand the “extensive legal complexities” of human rights, he essentially repeats arguments made orally before the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. It is important to note that these issues raised in this Request was the subject of submissions before the Tribunal, and was dealt with in its Decision. In Sigrist and Carson, above, 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. I find that the submissions in this Request in respect of the applicant’s ability to understand the process, amount to additional argument on an issue already fully canvassed before the Tribunal.

18In 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.