Tonka Misetich v. Value Village Stores Inc., 2016 HRTO 1641

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tonka Misetich

Applicant

-and-

Value Village Stores Inc.

Respondent

-and-

Ontario Human Rights Commission

Intervenor

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: December 20, 2016

Citation: 2016 HRTO 1641

Indexed as: Misetich v. Value Village Stores Inc.

WRITTEN SUBMISSIONS

Tonka Misetich, Applicant

Self-represented

Value Village Stores Inc., Respondent

Kathryn Bird, Counsel

Introduction

1This decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2016 HRTO 1229, dated September 20, 2016, which dismissed the Application (the “Decision”).

2The issue in this case is whether a change in the applicant’s work hours from daytime hours to days, nights and weekends, discriminated against the applicant on the basis of family status. The applicant’s work hours changed when the respondent moved her from production to operations to accommodate her physical restrictions. The applicant asserts the change in her hours interfered with her ability to provide eldercare.

3In the Decision, I held the applicant failed to prove family status discrimination because she had not established that her eldercare obligations were adversely impacted by the respondent’s requirement that she work a variety of shifts on days, evenings and weekends.

4On October 19, 2016, the applicant filed a Request for Reconsideration. She asserts that the Decision is in conflict with established case law or Tribunal procedure and the proposed Reconsideration involves a matter of general or public importance, and other factors exist that outweigh the public interest in the finality of Tribunal decisions. Although one of the reasons for the applicant’s Request for Reconsideration was the Decision is in conflict with established case law, she did not make any submissions in support of this ground.

5On October 20, 2016, the applicant filed a Request for Order during Proceedings seeking to anonymize the Decision.

6The Tribunal did not request the respondent’s submissions on the Request for Reconsideration. On November 14, 2016, the Tribunal requested submissions from the respondent on the applicant’s anonymization request. Those submissions were received on November 28, 2016.

analysis

Test for Reconsideration

7Under 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.

8The 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.

9The 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.

Request for Reconsideration

10In the Request for Reconsideration, the applicant criticizes the Decision in a number of ways. She argues that it contains factual errors and omits key evidence. For example, the applicant argues that I failed to consider her strong job performance history. The applicant argues further that I failed to consider her claim for disability-based discrimination. In particular, the applicant argues that I did not consider how the respondent treats its disabled employees and how its failure to provide an individual accommodation plan discriminated against the applicant. The applicant provides a link to employee reviews about the respondent. Most of the Request for Reconsideration is devoted to the applicant expressing disagreement with many of the findings in the Decision. She attaches various documents that were filed into evidence. The applicant continues to make submissions about the information sought by the respondent concerning her eldercare and the documents that she provided in response. The applicant also disagrees with the credibility findings made in the Decision.

11The applicant’s arguments on the Request for Reconsideration are a mixture of repeating the same arguments that were made at the hearing; making new arguments that could have made, but were not, at the hearing; alleging that the Tribunal ignored her evidence; and taking issue with the Tribunal’s assessment of the credibility of witnesses. None of these arguments meet the test for Reconsideration. Reconsideration is not available simply because a party disagrees with a decision, nor is it an opportunity to reargue a case. That said, I want to respond specifically to the applicant’s claim that I failed to address her complaint of disability-based discrimination.

12In the Request for Reconsideration, the applicant asserts that she alleged both disability-based discrimination and family status discrimination. I disagree. Allegations of disability-based discrimination were not before me.

13During the hearing, I asked the applicant whether she was asserting that the move from production to operations discriminated against her because of her disability. In response to this question, the applicant stated:

The crux of the case is objecting to the hours changed. Production hours didn’t change. No one else in production had to work these varied shifts. I needed my hours to remain the same. Strictly the hours were important because they suited my eldercare needs. I would have preferred to stay in production because there was a better guarantee of daytime hours. It’s just the hours. As long as they could accommodate my eldercare hours, I was fine with operations. I even say that in my February 14, 2013 letter. It states I am available to work 7:30 - 4, 8 - 4:30 or the occasional 10 - 6:30 shift (emphasis added).

14Upon receiving this response, I confirmed with the applicant that she was not alleging that the respondent discriminated against her by not keeping her in production and accommodating her physical limitations there.

15During final submissions, counsel for the respondent stated the applicant agreed that the respondent’s offer to move the applicant from production to operations accommodated the applicant’s physical restrictions. The applicant did not disagree with this submission.

16The applicant cannot use the Reconsideration process to advance a new claim of discrimination that was not made during the hearing. The applicant was clear during the hearing that this case was about her hours of work and how they adversely impacted her eldercare responsibilities. The applicant’s hours of work had no impact on her physical restrictions/disability.

Allegations of Bias

17The applicant alleges that I was biased against her because she refused to participate in mediation and that this bias is reflected in the Decision.

18At the outset of the hearing, I offered the parties mediation/adjudication if they were interested in resolving the matter. The applicant did not agree to participate in mediation/adjudication and we proceeded to hear the evidence. It is my standard practice to offer mediation/adjudication at the commencement of all of my hearings.

19During the hearing, the respondent’s representative indicated to the applicant that the respondent wanted to resolve the matter. The applicant and the respondent’s representative had a private conversation about this in the absence of respondent’s counsel and me. That conversation may have continued after one of the hearing dates. I had no involvement in any of these discussions.

20There is a strong presumption of judicial or quasi-judicial impartiality. To overcome the presumption, the party alleging a reasonable apprehension of bias must establish the presence of serious grounds. See Wewaykum Indian Band v. Canada, [2003] 2 SCR 259, 2003 SCC 45 at paras. 59 and 76. The test for reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 SCR 369, 1976 CanLII 2 (SCC) at pp. 394-95:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

The grounds for this apprehension must, however, be substantial, and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.

21In my view, the applicant has not raised any concerns that could properly support a claim of reasonable apprehension of bias. The fact that I offered mediation/ adjudication and was aware that the respondent’s representative had private discussions with the applicant about settlement, without knowing the content of those discussions, does not create a reasonable apprehension of bias. It was clear to me that the applicant wanted a decision in this case and it is her right to have one.

22I understand that the applicant disagrees with the Decision and the findings made therein. The applicant feels very strongly about how she was treated and believes that she was the subject of discriminatory treatment. Notwithstanding the strength of the applicant’s beliefs, the evidence simply did not support that she was the victim of discrimination.

23The applicant’s Request for Reconsideration is denied because the applicant has failed to establish any basis to reconsider the Decision. The Tribunal’s case law is clear that the Reconsideration process cannot be used to make new arguments that were not made during the hearing, to express disagreement with a decision, or to appeal a decision.

anonymization

24The applicant has requested that the Tribunal anonymize the Decision, which has already been released and publicized on. She submits that the details of her mother’s personal and medical information are not germane and that her mother’s dignity will be compromised if this information is disclosed.

25The respondent opposes the applicant’s request for anonymization. It submits the Tribunal has already released five decisions in this matter, all of which identify the applicant by her full name. It submits further that because the Tribunal, in an interim decision in 2014, addressed the respondent’s request for production of the applicant’s mother’s medical information, the applicant cannot now suggest that she was not aware that her mother’s medical information was germane. The respondent submits that the first time that the applicant requested anonymization was when she received the Decision with which she disagrees. Finally, the respondent submits the Decision discloses almost no specific facts about the applicant’s mother or her medical history and that the information that is disclosed is not of a highly sensitive nature. The respondent argues that cases involving accommodation on the basis of disability or family status will nearly always involve the disclosure of personal information. The information disclosed in the Decision does not rise to the level of highly sensitive medical or personal information that would warrant the anonymization of the Decision.

26Under Rule 3.11 of the Tribunal’s Rules of Procedure, the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so. The Tribunal has invoked Rule 3.11 as the basis upon which to anonymize parties in proceedings before it.

27The Tribunal’s Practice Direction on Anonymization of HRTO Decisions provides that the Tribunal may anonymize the name of a party to protect the confidentiality of personal or sensitive information where it is appropriate to do so. However, such an order is only made in exceptional circumstances. When determining whether to make an anonymization order, the Tribunal’s general approach is to balance the public interest in freedom of expression and open justice against any significant consequences of identifying the person requesting anonymization.

28The Tribunal does not grant anonymization in all cases where someone alleges that they have a private and sensitive medical condition or where they are seeking medical services they claim to be private and sensitive. However, the Tribunal has granted requests for anonymization where it is persuaded that the proceeding deals with medical information or medical services that are particularly private and sensitive due to the social stigma attached to them.

29The applicant’s request for anonymization is denied for the following reasons. One, the Decision has been released. It is unclear to me whether I have the jurisdiction to anonymize a decision after it has been released as I am functus, but for my jurisdiction to reconsider the Decision on very specific grounds. Two, the information in the Decision about the applicant’s mother is, for the most part, relatively benign. The Decision describes general health issues that many elderly people experience in our society. There is nothing stigmatizing about these common health concerns. Three, the applicant was aware throughout the hearing that her mother’s health information was highly relevant to the issues before me and yet at no time was anonymization requested. Four, anonymization is granted only in exceptional circumstances. This is because it is a fundamental principle of our justice system that hearings and the decisions that result from hearings are open to the public. While I appreciate that the applicant’s mother is not a party in this proceeding, the information that was disclosed in the Decision is not of such a nature to outweigh the importance of a public decision. Five, if I were to accept the applicant’s argument that the information in the Decision necessitated anonymization, all cases involving medical information would be anonymized. This would likely mean that most, if not all, disability cases would be anonymized. In my view, it would be contrary to the public interest to anonymize such a large proportion of the Tribunal’s work.

30For all of these reasons, the applicant’s request for anonymization is denied.

decision

31The applicant has failed to meet the test for reconsideration and as such, her Request for Reconsideration is denied.

32The applicant’s request to anonymize the Decision is denied.