Abdalla Mohamed Ali v. AvisCar Inc. and Ajmer Pabla, 2016 HRTO 1234

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abdalla Mohamed Ali

Applicant

-and-

AvisCar Inc. and Ajmer Pabla

Respondents

-and-

United Food and Commercial Workers Canada, Local 175

Intervenor

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: September 22, 2016

Citation: 2016 HRTO 1234

Indexed as: Ali v. AvisCar Inc.

WRITTEN SUBMISSIONS

Abdalla Ali, Applicant

A. Chima, Counsel

Introduction

1This Decision addresses a Request for Reconsideration filed by the applicant on July 22, 2016, in relation to the Tribunal’s decision, 2016 HRTO 853 (the “Decision”), which dismissed the Application under section 45.1 of the Code and as an abuse of process.

analysis

Test for Reconsideration

1Under 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.

2The 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.

3The 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

4The applicant relies on the following reasons in support of his Request for Reconsideration:

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

b. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance;

c. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

5More specifically, the applicant alleges that I erred in finding the Application had been appropriately dealt with in the grievance arbitration decision for two reasons:

a. The arbitration decision dealt with the termination of the applicant’s employment: it did not deal with the pattern of discrimination preceding the termination;

b. The union and the employer (respondent) agreed not to raise human rights issues at the arbitration in order to preserve the Application before the Tribunal. The applicant asserts that he had no status at the arbitration to address his human rights issues.

The Application

6The Application alleges discrimination on the basis of disability and reprisal. The applicant alleges that the termination of his employment during a sick leave in October 2010 discriminated against him on the basis of his disability. He alleges further that his employment was terminated as a form of reprisal because the applicant stood up for his employment rights set out in a number of statutes, including the Code.

7In the Application, the applicant alleges the respondent employer was motivated to terminate his employment because of the “history of harassment and discrimination”. The Application sets out a number of incidents between 2007 and 2009 in support of this allegation. They are summarized as follows:

a. December 3 and 4, 2009, the applicant was harassed by his manager who violated the applicant’s seniority-based rights for overtime;

b. October 27, 2009, the applicant was abused, intimidated and humiliated by his manager;

c. October 3, 2009, the applicant was treated unfairly by his manager when he subjected the applicant to close monitoring of his activities. For instance, he confined the applicant to a specific gas island station;

d. October 9, 2008, the applicant was harassed by the group manager who subjected him to an unfair suspension simply because the applicant refused to sign an illegal document;

e. November 20, 2007, the applicant was harassment by the group manager who lied about his job performance and created false and fabricated preconditions for a future wrongful dismissal.

8On the Request for Reconsideration, the applicant argues the arbitration decision did not address the allegations that preceded the termination. The difficulty with this argument is that the Application does not allege incidents of discrimination preceding the termination. The incidents set out in the Application concern the way in which the applicant was supervised or managed. They do not allege differential treatment because of the applicant’s disability, the ground of discrimination relied upon on the Application. The fact that the applicant uses the words “discrimination” and “harassment” to describe these incidents does not make them allegations of discrimination.

9As stated in the Decision, the substance of the Application concerns the termination of the applicant’s employment during the applicant’s sick leave. That is the allegation of disability-based discrimination. The arbitration decision dealt with the termination of the applicant’s employment.

10The applicant argues that he had no ability to raise his human rights issues at the arbitration because the union and the employer agreed not to raise them in order to preserve the human rights application before the Tribunal. There is no support for this assertion in the arbitration decision. The arbitration decision states the union and the employer were not raising human rights issues and provides a specific example as to how such an issue might be raised, the inference being that there were no human rights issues. The arbitration decision does not say human rights issues were not being raised in order to have them heard by the Tribunal.

11In any event, as I stated in the Decision, applicants cannot restrict Code arguments in a labour arbitration so that they can be pursued later before the Tribunal. This is known as “splitting one’s case” and is not permitted by the Tribunal.

12The applicant argues that he did not have a choice on how the issues were dealt with at the arbitration. The applicant did have a choice. He had the choice of proceeding to arbitration with the assistance of his union or proceeding before the Tribunal. He chose to proceed to arbitration. Having made that choice, he must accept the consequences which flow from it.

13The applicant is using the reconsideration process to re-argue his case. He is attempting to re-frame his allegations of discrimination, following the dismissal of the Application. The applicant is precluded from using reconsideration in this way. The Tribunal’s Practice Direction and case law are clear. Reconsideration is not an opportunity to re-argue a case or appeal a decision.

order

14The Request for Reconsideration is dismissed.