Ian MacLeod v. The Corporation of the County of Lambton, 2015 HRTO 604

Human Rights Tribunal of Ontario

B E T W E E N:

Ian MacLeod by his Substituted Decision Maker

Applicant

-and-

The Corporation of the County of Lambton

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: May 11, 2015

Citation: 2015 HRTO 604

Indexed as: MacLeod v. Lambton (County)

WRITTEN SUBMISSIONS

Jeff Brooks, Sandra Johnson, Jon Cann, and Stephen Robinson, Employees of the Respondent

Andrew Camman, Counsel

1On April 29, 2014, the Tribunal issued its Decision in this Application, 2014 HRTO 597, granting the Application in part. Amongst other remedial Orders the Tribunal ordered that the respondent reinstate the applicant to his former position as Manager of the Emergency Medical Services Department (“EMS”) of the respondent. This Order was subject to a number of terms and conditions.

2Four employees of the respondent have sought leave to request reconsideration of the Tribunal’s Order reinstating the applicant to his former position. The employees are each employed in EMS and were employed by the respondent during the time that the applicant was the Manager of EMS. All four employees claim to have been victims of the applicant’s abuse and harassment during the time that he was their Manager. All four employees gave evidence in the hearing on behalf of the respondent. All four employees claim to have suffered significant mental health consequences as a result of the Decision and the “impending” return to the workplace of the applicant.

The Legal Framework

3Under 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.

4The 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.

5The Tribunal may also reconsider a Decision on its own initiative and has made Rules accordingly:

26.9 The Tribunal may reconsider a decision on its own initiative where it considers it advisable and appropriate to do so.

26.10 Where the Tribunal decides to reconsider a decision on its own initiative, it will determine a procedure for rehearing all or part of the matter, which will include an opportunity for the parties to make submissions.

6The 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.

Decision

The Standing Issue

7It is my view that the employees have no standing to file a Request for Reconsideration. It is clear from the language of the Code and the Tribunal’s Rules that it is the parties to the proceeding that have that right and no one else. The employees might have been entitled to file a Request for Reconsideration had they sought and been granted intervenor status. However, they did not do so, even though, as noted below, they were not only on notice of the proceeding but indeed testified as witnesses. I would dismiss this Request on this basis alone.

Reconsideration on the Tribunal’s Own Initiative

8In arguing that the Tribunal should reconsider the Decision the employees make three main arguments:

a. That there are new facts or evidence that could be determinative of the remedy granted and could not reasonably have been obtained earlier.

b. That there is a conflict between the Tribunal’s decision to reinstate Mr. MacLeod and established jurisprudence on reinstatements and that reinstatements involve a matter of general and public importance.

c. That there are inconsistencies with how reinstatements are decided by the Tribunal which merits a thorough review and reconsideration by the Tribunal.

9As 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. As set out in the Practice Direction it will generally only reconsider a decision where there are compelling and extraordinary reasons to do so.

10The Tribunal also has the power to reconsider its Decisions on its own initiative. It has done so only very rarely and generally where through administrative error on its part there has been an evident denial of procedural fairness or natural justice; such as where the Tribunal inadvertently failed to provide notice to, or consider written submissions made by, a party. It has not done so where a non-party to the proceeding with an interest in the Decision takes issue with some aspect of it after the fact. In effect, by asking the Tribunal to reconsider its decision “on its own motion” what the employees are seeking to do is avoid the issue of standing by characterizing their own request as one made on the Tribunal’s own motion. Of course it has not been made on the Tribunal’s own motion and for this reason I would not give effect to this aspect of the employee’s request.

Substantive Issues Raised in the Request

11In the alternative, if for some reason I am wrong and the requestors somehow have standing to bring this Request for Reconsideration, in my view it would not be appropriate in these circumstances for the Tribunal to exercise its discretion to re-open this case and reconsider the Order reinstating the applicant to his former position subject to a number of pre-conditions.

12In coming to these conclusions I have assumed without deciding that the employees’ assertions of mental health consequences for them of the applicant’s conduct in the past and his potential return to the workplace are capable of being proved.

13There are a number of difficulties with the employees’ argument. First, in my view the new facts upon which the employees seek to rely are not new facts within the meaning of the Rule but ex post facto facts – that is they are not facts which existed at the time of the hearing or when the Decision was released but are facts that only came into existence after the fact. In my view it is not appropriate to re-open a final decision after the fact because of new facts which only came into existence after a final decision was made.

14Second and without discounting in any way the concerns of the employees, what they are seeking to reconsider is an Order that in fact has not been implemented, and although they claim that the applicant’s return to work is “impending” in fact the applicant is not in the workplace at the moment. A request for reconsideration in such circumstances is both premature and speculative.

15I am also not persuaded that these new facts would necessarily be determinative of the issue before the Tribunal because these issues were already canvassed at the hearing. To the extent that the employees argue that the Tribunal came to incorrect conclusions about these issues, that is not a proper basis for reconsideration of a final decision. As noted above, even for the parties themselves, Reconsideration is not an appeal or an opportunity to repair deficiencies in the presentation of their case.

16The Tribunal was alive to the concerns of the employees at the hearing. Evidence was called on these points; indeed the four employees making this request gave evidence about these issues. They each had an opportunity to express their concerns. The Tribunal considered the employees’ evidence and the parties’ submissions on these points and came to certain conclusions.

17The Tribunal also acknowledged that there might be difficulties with the reintegration of the applicant into the workplace and as a result his return to his former position was conditional. The Tribunal also ordered that should the conditions precedent for the applicant’s return be met the respondent was required:

to retain an expert in workplace restoration, who has knowledge of mental disabilities, and implement a process to repair the damaged and compromised relationships between the applicant and the EMS staff whom he verbally abused…

18I also do not agree either that the Tribunal’s Order reinstating the applicant is inconsistent with established jurisprudence or that the Tribunal has taken an inconsistent approach to reinstatement which merits a thorough review of the issue.

19The Tribunal stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules.

20The employees argue that in making its Order, the Tribunal did not correctly balance the rights of those potentially affected by its Order and did not properly assess the viability of the employment relationship. The employees clearly disagree with the Order but that is not an indication of an inconsistent or divergence in approach to reinstatement that would call for the extraordinary device of a reconsideration of a final decision.

21The employees argue that the approach taken to reinstatement in this case is inconsistent with the Decision of the Tribunal in Macan v. Stronco LP, 2013 HRTO 841 (Macan). The part of Macan to which the employees refer is set out here:

The Tribunal has the jurisdiction to reinstate an applicant, but this order is rarely requested or ordered in human rights cases. See Krieger at para. 182. In cases in which an applicant has been ordered reinstated, the applicant has been a unionized employee for a large employer (Kreiger) or has been employed in a relatively unskilled position (Dhamrait v. JVI Canada, 2010 HRTO 1085). Unlike Dhamrait, in which there were no other reasons for which the applicant was terminated, in this case I have determined that the applicant’s disability was a factor but not the sole reason for her termination.

22It is not at all clear to me that the passage from Macan is indicative that the Tribunal has taken an inconsistent approach to reinstatement and in my view the passage above does not evidence that the Order reinstating the applicanat in this case represents a “clear and surprising departure” from a settled legal principle or rule.

23The employees also argue that decisions made by the Tribunal should not result in the pitting of one person’s human rights against another. The employees also argue that the Tribunal did not properly balance the interests of all those affected by its Decision reinstating the applicant to his former position. In their submission one person’s rights to accommodation should not trump the human rights of others without providing everyone affected with natural justice including the right to make full representations.

24The difficulty with these arguments is that the employees were all aware of the proceeding and gave evidence against the applicant. The applicant was clear throughout the process that he was seeking reinstatement. It is clear from the description of their evidence that the employees each knew what the issues were in the case and more importantly they knew that the reinstatement of the applicant was a possibility because they were all questioned about that possibility and gave evidence against the applicant. They were heard and it is clear from the Decision that they were heard.

Conclusions

25The Tribunal exercised its discretion after hearing many days of evidence and full submissions from the parties to the proceeding. The questions raised by the employees about the viability of the employment relationship were raised and addressed in the hearing. The Tribunal has made its Decision. The employees, not unreasonably perhaps, have concerns about the result. However, in my view they do not have standing to request reconsideration of the Tribunal’s decision. If I am wrong in this, I find in the alternative that it would be neither fair, just or expeditious nor consistent with the clear language and intent of the Code and the Tribunal’s Rules to reconsider the Tribunal’s Order reinstating the applicant to his former position.

26For all of these reasons the employees’ request is denied.