Myers v. William Osler Health System, 2016 HRTO 1005

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tara Myers

Applicant

-and-

William Osler Health System and Laura Albisu

Respondents

-and-

Teamsters Union Local Union No. 419

Intervenor

RECONSIDERATION DECISION

Adjudicator: Naomi Overend

Date: July 29, 2016

Citation: 2016 HRTO 1005

Indexed as: Myers v. William Osler Health System

WRITTEN SUBMISSIONS

Tara Myers, Applicant

Self-represented

1The applicant requests Reconsideration of the Tribunal’s February 11, 2016 Decision, 2016 HRTO 199, dismissing this Application.

2The circumstances in which reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s Rules of Procedure:

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.

3The applicant relies upon Rules 26.5(c) and (d) in her Request for Reconsideration (the “Request”). It would appear that the applicant takes issue with the Decision on the basis that: (1) there were breaches of her right to procedural fairness; and (2) that the Tribunal excluded evidence and overlooked expert testimony and law.

4The Tribunal dismissed the Application after the applicant’s case on the basis that she had failed to establish discrimination or reprisal on the balance of probabilities. The respondents were not required to call their evidence to refute her allegations.

5With respect to the alleged breaches of fairness, the applicant suggests that the Tribunal “ignored a request for the respondent to transcribe illegible hand-written documents.” It is not clear from the applicant’s submissions what request was made that was ignored, although the applicant makes reference to a October 21, 2015 Interim Decision, 2015 HRTO 1407.

6This Interim Decision addresses the applicant’s paralegal’s October 21, 2015 request for an adjournment of the upcoming November 4 and 5, 2015 hearing. There was no parallel request to require the respondents to transcribe this material, although one reason offered in support of an adjournment was that there were 20-25 pages of hand-written documents in the respondents’ materials. The request for adjournment was denied for the following reasons:

Last minute retention of counsel does not constitute exceptional circumstances. In addition, there is no explanation for why witnesses who need to be summonsed have not been or, for that matter, cannot be summonsed in the time remaining. The applicant has been in possession of the allegedly illegible handwritten documents for close to four months. She has done nothing about her inability to read the documents in the intervening period. Specifically, no attempt has been made to identify which documents are problematic and no request for transcription has been made to the respondents. [Emphasis added.]

7Any concerns about illegible material could, and should, have been addressed by the applicant and/or her representative in advance of the hearing. In any event, the applicant has not indicated which notes were actually illegible or how this influenced the fairness of the proceedings.

8The applicant submits that respondents’ representatives improperly subjected her to scents, and that when she asserted her rights on this front, by moving away from counsel, she was “personally attacked and mocked” by counsel. I would note that counsel vehemently denied at the time the applicant’s assertion that she was in contravention of the scent policy.

9The applicant does not suggest that the alleged presence of scents in the hearing environment, per se, prevented her from proceeding with her case, and it is difficult to understand how this constitutes a breach of procedural fairness, as she suggests.

10In addition, the applicant suggests that my reaction to counsel’s behaviour indicates bias on my part. I would note more generally that counsel, in the midst of cross-examination, can be short and/or aggressive with the person whom they are examining. For the person on the receiving end of such questioning, particularly if they have not had much exposure to the adversarial process, this conduct may seem unacceptably aggressive or rude.

11I am always alert to the possibility that counsel may be crossing the line in the midst of litigation, and will independently intervene if I believe their actions are running afoul of the Social Justice Tribunals Ontario Rules of Procedure requiring the parties to act toward the Tribunal and each other with courtesy and respect. Moreover, the applicant’s representative was present at the hearing and did object from time to time. In this case, the issue was raised and I addressed it at the time.

12The applicant has suggested that I should be “recused” for exhibiting bias. Since I do not find that there is either actual bias or a reasonable apprehension of bias, I decline to recuse myself.

13The 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. [Emphasis added.]

14The applicant appears to be suggesting that, in disregarding some allegations as untimely, I was acting in direct contravention of an earlier Interim Decision on her Application, 2014 HRTO 1331. I would note that this Interim Decision, which followed a summary hearing, was simply determining whether there was “no reasonable prospect of success.” In declining to find that this test had been met, the Tribunal was in no way fettering the discretion of the person hearing the applicant’s actual (as opposed to proposed) evidence.

15The applicant’s submissions do not establish that the Decision is in conflict with established jurisprudence or Tribunal procedure. Her Request does not identify factors that outweigh the public interest in the finality of Tribunal decisions. In many respects, her submissions are largely re-argument of the case, which is an improper use of the reconsideration process.

16The Request for Reconsideration is dismissed.