Parris v. Toronto (City), 2016 HRTO 1048

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harold Parris

Applicant

-and-

City of Toronto

Respondent

-and-

Toronto Civic Employees Union, Local 416

Intervenor

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: August 9, 2016

Citation: 2016 HRTO 1048

Indexed as: Parris v. Toronto (City)

WRITTEN SUBMISSIONS

Harold Parris, Applicant

Self-represented

Introduction

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2016 HRTO 794 dated June 10, 2016, which dismissed the Application pursuant to section 45.1 of the Code, and as an abuse of process. The Tribunal held the substance of the Application had been appropriately dealt with in a grievance arbitration decision. In the alternative, the Tribunal held it would be an abuse of process to hear the Application.

2On July 8, 2016, the applicant filed a Request for Reconsideration of the Tribunal’s decision.

analysis

Test for Reconsideration

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 on the Tribunal’s exercise of its reconsideration powers. Rule 26 of the Tribunal’s Rules of Procedure states:

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.

5The Tribunal’s Practice Direction on Reconsideration states reconsideration is a discretionary remedy: there is no right to have a decision reconsidered by the Tribunal. It affirms that reconsideration is not an appeal or an opportunity for a party to change the way he or she presented their case.

Grounds for Reconsideration

6The applicant relies upon two grounds for reconsideration: One, there are new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier. Two, the substance of the Application was not appropriately dealt with in the grievance arbitration decision.

New Evidence

7The events at issue in the grievance proceeding and in this Application took place in the spring of 2013. The new evidence relied upon by the applicant is an Assessment Report dated January 28, 2016. In my view, a report that is created almost three years after the events at issue is not relevant to the allegations set out in the Application. Because the Assessment Report is not relevant, it cannot be potentially determinative of the issues in this case.

Substance of the Application Not Dealt With

8The applicant submits the grievance arbitration proceeding did not address the Application because it dealt with events that occurred on May 29, 2013 (which led to his suspension and termination), and did not address events that preceded that date. By way of analogy, the applicant argues the grievance proceeding dealt with the “length of the chain”, but denied existence of the “individual links” that made up the allegations of discrimination set out in the Application. The applicant states the suspension and termination grievances were before the arbitrator: the accommodation grievance was not.

9I disagree with the applicant’s submission that because the accommodation grievance was not formally before the arbitrator, she failed to address his accommodation allegations.

10In the Decision, I held the arbitrator dealt with the issue of whether or not the applicant could perform the work that he had been assigned when she decided the suspension and termination grievances because it was a key issue in those grievances. The arbitrator devoted a significant part of her decision to this issue and held the respondent had no basis to accept the applicant’s professed inability to do the assigned work was medically supported. As a result of the arbitrator finding the applicant was physically able to do the assigned work, there was no duty to accommodate. It was for this reason that I held the arbitration decision appropriately dealt with the substance of the Application – the alleged failure of the respondent to accommodate the applicant’s disability in the assignment of work.

11I understand that the applicant disagrees with the arbitrator’s finding. However, that disagreement does not mean that his Application was not appropriately dealt with in the arbitrator’s decision.

12I also appreciate that the applicant disagrees with my dismissal of the Application under section 45.1 of the Code. However, his disagreement is not an appropriate basis upon which to reconsider the Decision. The Tribunal’s Practice Direction is clear: reconsideration is not an appeal process, nor is it an opportunity for the applicant to re-argue his case.

13In any event, entirely apart from the issue under section 45.1 of the Code, this Application was also dismissed as an abuse of process, on the basis that to allow the applicant to parse out a discrete allegation that was integral to the other issues raised in the arbitration was an abuse of the Tribunal’s process. The alleged failure to accommodate was a key part of the events that led to the applicant’s suspension and termination. The applicant cannot take the accommodation piece out of the events and argue that separately before the Tribunal in the hope of getting a different finding. To allow the applicant to do this would constitute an abuse of the Tribunal’s process on the basis that it constitutes an impermissible attempt by the applicant to split his case and violates the principles of judicial economy and the integrity of the administration of justice.

14The applicant has failed to meet the test for reconsideration and as such, his Request for Reconsideration is denied.

Other matter

15On June 20, 2016, the applicant wrote to the Tribunal and requested production of the grievance arbitration transcripts. The applicant referred to his 2015 response to the respondent’s request to dismiss the Application in support of his request. The applicant states the Tribunal failed to rule on this request.

16There is no question that the applicant referred to the transcripts in his response to the respondent’s dismissal request. He stated the transcripts should be before the Tribunal. While he made this statement in his response, he did not request the transcripts. In the absence of a request for production of the transcripts, no decision was made as to whether they should be produced.

17The Tribunal has no authority to consider this request now because the Application has been dismissed and the Reconsideration Request has been denied. In light of these decisions, the Tribunal has no jurisdiction to rule on this request. Its authority over the matter is now over.

order

18The Reconsideration Request is denied.