HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mahesh Malik
Applicant
-and-
Sears Canada Inc.
Respondent
RECONSIDERATION DECISION
Adjudicator: Eli Fellman
Indexed as: Malik v. Sears Canada
BACKGROUND
1This Application was filed on May 15, 2014 and alleges discrimination with respect to employment because of race and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2By Case Assessment Direction (“CAD”) dated September 26, 2014, the Tribunal directed a summary hearing on whether the Application should be dismissed as having no reasonable prospect of success. The Tribunal granted the parties’ request to conduct the summary hearing in writing.
3Having considered the submissions, I issued Interim Decision 2015 HRTO 476 (Interim Decision) on April 15, 2015.
4With respect to the ground of race, paragraph 23 of the Interim Decision states: that I cannot find that the applicant’s assertion that he was subject to discrimination on the basis of race, has no reasonable prospect of success. The Tribunal has therefore scheduled a hearing to consider this part of the Application.
5With respect to the ground of disability, I found as follows at paragraphs 14-18 of the Interim Decision:
The applicant appears to be asserting that the respondent is responsible for his post-employment medical problems because his termination was unfair and unwarranted. However, as identified in the September 26, 2014 CAD, the only issue that the Tribunal can consider is whether the respondent discriminated against him on the basis of a disability when it terminated his employment. The Tribunal has jurisdiction over claims of discrimination related to the Code, not general allegations of unfairness related to employment that are unconnected to a Code ground.
Therefore, the Tribunal can only consider whether the respondent’s refusal to extend the applicant’s leave of absence and its decision to terminate his employment when he failed to return to work were discriminatory because they were related to his disability.
The applicant does not allege that he told the respondent about any medical issues or disability prior to the termination of his employment on May 16, 2013. The applicant was in India at the time his symptoms allegedly first developed, meaning the respondent’s employees could not have known about his medical issues unless the applicant chose to disclose them.
If the respondent had no knowledge of the applicant’s alleged disability prior to the refusal to grant him a further leave of absence and the decision to terminate his employment, the Tribunal cannot find that the applicant’s alleged disability was A factor in respondent’s conduct.
As there is no basis for the Tribunal to find that the respondent discriminated against the applicant because of disability, there is no reasonable prospect of success with respect to this part of the Application.
RECONSIDERATION REQUEST
6On June 8, 2015, the applicant filed a Request for Reconsideration of that portion of the Interim Decision which finds that there is no reasonable prospect of success with respect to the allegation of discrimination on the ground of disability.
7The applicant asserts that as a result of the respondent’s illegal termination and harassment he has developed panic attacks and chronic anxiety which renders him useless for work. The applicant has submitted several medical reports to support this allegation.
8Under 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.
9The 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.
10The 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.
11As 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.
12Under Rule 26.1, only “final” decisions qualify for a reconsideration request. A decision will only be considered a final decision where the decision has the effect of finally determining the substance of the dispute or a central element of the dispute between the parties. See for example Ontario Human Rights Commission v. Ontario Teachers’ Federation, 1994 CanLII 10578 (ON SC), 19 O.R. (3d) 371.
13In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal determined that even an interim decision may be “final” where it disposes of some or all of the central issues in the application.
14I am satisfied that the Interim Decision in the matter before me disposes of the allegation that the applicant was discriminated against on the ground of disability, which is one of the central issues in the Application. Therefore, the Tribunal’s reconsideration process is available.
DECISION
15In support of the Reconsideration Request, the applicant essentially repeats his arguments respecting disability made during the summary hearing.
16In Sigrist and Carson, above, the Tribunal stated that reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. 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 amount to additional argument on an issue already considered by the Tribunal during the summary hearing.
17As explained in Interim Decision 2015 HRTO 476, the applicant’s argument with respect to disability, even if true, would not amount to an independent breach of the Code. The Code prohibits an employer from firing or otherwise discriminating against an employee on the ground that the employee has a disability. The applicant by his own admission did not have a disability prior the termination of his employment. Once the applicant’s employment was terminated, his employment relationship with the respondent ended. Therefore, the facts as alleged by the applicant cannot result in a finding that the respondent discriminated against him on the ground of disability during the employment relationship.
18However, the applicant’s arguments with respect to the impact of the termination upon his mental health may be relevant at the hearing if the applicant is able to establish that he was subject to discrimination on the basis of race. In considering the appropriate remedy where an applicant is successful, the Tribunal commonly considers the impact of the discriminatory conduct upon the applicant.
19For the above reasons, I find that applicant has not met the burden of establishing any of the threshold criteria contained in Rule 26 justifying Reconsideration. The Request for Reconsideration is denied.
Dated at Toronto, this 17th day of June, 2015.
Signed By
Eli Fellman
Vice-chair