Winning v. J.A. Kaytor Holdings Inc., 2016 HRTO 178

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sharon Winning

Applicant

-and-

J.A. Kaytor Holdings Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Alison Renton

Date: February 9, 2016

Citation: 2016 HRTO 178

Indexed as: Winning v. J.A. Kaytor Holdings Inc.

WRITTEN SUBMISSIONS

Sharon Winning, Applicant

Wade Poziomka, Counsel

J.A. Kaytor Holdings Inc., Respondent

Jim Kaytor, Representative

1In Decision 2015 HRTO 1119, dated August 21, 2015, the Tribunal upheld the Application following an in-person merits hearing on May 1, 2015, and a conference call hearing on May 25, 2015 to hear the parties’ final submissions. The Tribunal ordered various monetary and non-monetary remedies.

2After the Decision was issued, the respondent filed a Request for Reconsideration (“the Request”). The respondent did not mark off any of the boxes at question 2, which set out the basis upon which the Request is based, but set out a number of reasons and representations in the narrative section of the Request.

3Mr. Kaytor takes issue with a number of findings in the Decision, which he set out in one long, dense paragraph. Specifically, he disputes the finding that he was not a credible witnesses and asserts that the Tribunal failed to accept portions of his evidence; questions a factual finding that was not included in the Application or the Response; questions findings made on evidence where the respondent testified he did not recall something; and asserts that the Decision is inconsistent with the respondent’s Response and the evidence of its witnesses. He requests reconsideration for these reasons and for a “sense of justice” in regards to what would be more probable.

4The applicant filed submissions, although she had not been directed to do so by the Tribunal.

LAW AND ANALYSIS

5Rule 26.1 of the Tribunal’s Rules of Procedure (“the Rules”) says:

Any party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision.

6Rule 26.5 of the Tribunal’s Rules sets out the limited circumstances in which reconsideration may be granted:

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.

7The Tribunal’s “Practice Direction on Reconsideration” and case law makes it clear that reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. It is a discretionary remedy. See, for example, Sigrist and Carson v. London District Catholic School Board et. al., 2008 HRTO 34. 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.

8Although Mr. Kaytor did not identify a specific ground upon which his Request is based, I find that it is based upon Rule 26.5(d). While he vaguely referred to decisions, which is addressed below, he did not refer to any case law with which the Decision is inconsistent.

9As set out above, Reconsideration is not an opportunity to repeat submissions that have already been considered by the Tribunal or repair deficiencies in the presentation of its case. I find that the points raised by the respondent in its Request are repetitions of what it submitted during the hearing, including during its final submissions, or attempts to repair, after the Decision has been issued, deficiencies in its case. Notwithstanding this conclusion, I will address each of the respondent’s points separately.

Mr. Kaytor not being found a credible witness

10Mr. Kaytor asserts that the Tribunal concluded that he was not a credible witness because he was vague and forgetful. He says that he was asked questions that were not directly related to the applicant’s disability charge, were related to incidents that occurred in excess of one and a half to two years ago, and the applicant’s counsel was loud during his cross-examination. Mr. Kaytor asserts that recalling situations this long ago in the past is difficult for anyone and should not be the basis of finding him not credible. He submits that he did not yell and that not being loud should not make him not be a credible witness. As for touching or covering his mouth a lot while on the witness stand, he states that he has a condition where his lips get dry and chapped so he has to use Chapstick as a medication. He ponders whether this is what the Vice-chair thought was so peculiar, and questions, “Maby [sic] she should have asked, or should she have been expected to have known [sic]?”

11My notes from the parties’ final submissions on May 25, 2015 indicate that Mr. Kaytor made a number of submissions about why he and his witness should be found credible by the Tribunal and why the applicant should not. In addition to specific evidence referred to, he also submitted that the events happened more than a year ago and it was difficult to remember all of the details. He did not mention that he had chapped lips, or was prone to have chapped lips such that he places his hand over his mouth when he testifies.

12As set out in para. 56 of the Decision, the Tribunal is often required to decide issues of credibility between the parties and their witnesses. At paras. 57 to 59 of the Decision, the Tribunal referred to various principles it has considered for assessing credibility. Covering one’s face limits the trier of fact’s ability to assess the demeanour of the witness. See R. v. N.S., 2010 ONCA 670 at para. 54, as cited by R. v. N.S., 2012 SCC 72 at para. 24.

13Further, a review of my notes indicates that Mr. Kaytor’s hand was placed over his mouth, concealing it, when it was suggested in cross-examination that he came into the office to berate the applicant who had been released from hospital the day before. This was an area of contention between the parties and Mr. Kaytor’s mannerism was in contrast to how he conducted his examination-in-chief. Mr. Kaytor did not tell the Tribunal that his hand was placed over his mouth because he has a condition such that his lips get dry and chapped.

14In the Decision, I set out a number of reasons why I did not find Mr. Kaytor to be a credible witness. Those reasons are set out in paras. 63, 64, 86, 89, 91, 92, 93, 97, and 98 and do not need to be repeated again.

15The respondent is submitting points that it raised during the hearing and is attempting to repair deficiencies in its case. The respondent’s Request is denied on this basis.

factual finding that wAS NOT BASED ON the Application or the Response

16The respondent submits that the Tribunal made a factual finding that was not based upon information included in the Application or the Response. Specifically, the respondent asserts that the Tribunal found, at para. 81, that Mr. Kaytor contacted the applicant the morning of November 20, 2013, a finding the Tribunal later uses to suggest that Mr. Kaytor was concerned with the applicant’s disability. The respondent submits that Mr. Kaytor testified that he did not recall if he contacted the applicant that morning and this evidence cannot equate to a finding that he did call her.

17I agree with the respondent that the assertion that Mr. Kaytor telephoned the applicant the morning of November 20, 2013 to find out how she was feeling and whether she was returning to work was not mentioned in the Application or Response. It was not mentioned in the Reply or the applicant’s witness statement.

18The applicant’s evidence that Mr. Kaytor called her that morning arose during her examination-in-chief when she testified about being off work because she was hospitalized, and then returning to work. She testified that she was contacted that morning by Karen Bobiash, her manager, who wanted her to come into work earlier, and also by Mr. Kaytor. The evidence of the witnesses is set out in paras. 20 and 21 of the Decision. As reflected in para. 21, Mr. Kaytor testified that he did not recall calling the applicant that morning, although he could have. He testified in cross-examination, that if he did call her, he could have asked if she was coming into work that day.

19The respondent did not object to the applicant testifying about the information contained in paras. 20 and 21 of the Decision, and he did not object to questions in cross-examination of himself and Ms. Bobiash on this issue. In fact, during the respondent’s final submissions, Mr. Kaytor referred to the fact that the applicant came in early on November 20, 2013. He cannot, at this point, object that such evidence was entered and base his Request on this point.

20Further, as noted in para. 79 of the Decision, the case was based on circumstantial evidence, rather than direct discrimination. Mr. Kaytor’s evidence, as reflected in para. 70 of the Decision, including that he did not recall calling the applicant on November 20, but could have, was considered, along with other evidence such that the Tribunal concluded that it was probable that the respondent was trying to ensure that the applicant attended work that day.

21The respondent’s submissions in its Request, on this point, are an attempt to repair deficiencies in its case. The Request is denied on this basis.

findings made on evidence where Mr. Kaytor did not recall something

22The respondent also submits that he “did not recall the incident with the chair, ‘chair abuse’”. He questions, “Does that make him guilty, or a liar? ‘Chair Abuse’ would mean a chair being abused, even if it was not intentional.”

23The Tribunal heard a lot of evidence from the parties, including Mr. Kaytor, about the broken chair. This is reflected in paras. 26, 27, and 29 to 35 of the Decision. As set out in para. 91, I accepted the evidence of the applicant and Ms. Bobiash, the respondent’s witness, who heard Mr. Kaytor use the words “chair abuse” when speaking with the applicant.

24Therefore, the respondent responded to the applicant’s evidence about the broken chair and “chair abuse” during the hearing and the respondent’s final submissions. It is repeating submissions that it made during the hearing. Accordingly, the Request is denied on this basis.

the Decision is inconsistent with the respondent’s Response and the evidence of its witnesses

25The respondent submits that the Tribunal accepted the evidence of the applicant over the contradictory evidence of the respondents’ witnesses and the information in the Response. The respondent asserts that its witness, Ms. Bobiash, testified that Mr. Kaytor did not ask about the applicant’s heart irregularity and denied that Mr. Kaytor called the applicant fat. The respondent submits that the Tribunal generally did not accept any other statements made by the respondent from para. 89 onwards. The respondent poses, in its Request, a number of probabilities, including:

Would it not be more probable to believe that the respondent would not fire the applicant for only the first two days ever missed from work in her employment, even if he knew of a disability the applicant had for any length of time? Would it not be more probable to assume that if the respondent was worried about missed work in the future, he would wait until the missed days actually happened (as is the case in other decisions I have read) before dismissing anyone. Why would an employer do that, when it would actually be more difficult to re hire [sic] and re train [sic], than work with the current employee, for whatever reasons. Is it not more probable to keep an employee with a good attendance record then to get rid of him/her, when only two days are missed?

26The respondent’s Request, on this issue, is an attempt to challenge factual findings made in the Decision. While the respondent vaguely refers to case law in the quoted paragraph, above, he does not refer to any specific case law, let alone any case law with which the Decision is in conflict.

27Some of the probabilities, posed above, were made during the respondent’s final submissions. This part of the Request is based upon a repetition of points the respondent made during final submissions.

28Ms. Bobiash’s evidence was that she heard the applicant ask Mr. Kaytor if he was calling her fat, as reflected in para. 91 of the Decision. The Tribunal found Ms. Bobiash’s evidence supported the applicant’s evidence that Mr. Kaytor either said or implied that the applicant was fat.

29In para. 85 of the Decision, for the reasons set out therein, the Tribunal accepted the applicant’s evidence, over Mr. Kaytor’s, that he asked her about her heart “irregularity”. In para. 24, the applicant testified that Ms. Bobiash was not present during this discussion. During its final submissions, the respondent made submissions about the heart irregularity evidence, based upon the applicant’s and Mr. Kaytor’s evidence, but not about Ms. Bobiash’s evidence. It did make submissions that Ms. Bobiash’s evidence was consistent with Mr. Kaytor’s and that the Application should be dismissed.

30A further review of my hearing notes indicates that Ms. Bobiash presented some evidence in relation to the applicant’s allegation that Mr. Kaytor asked her how her heart irregularity was. Ms. Bobiash was questioned only during cross-examination, not examination-in-chief, whether or not Mr. Kaytor asked the applicant about her heart or her heart irregularities. My notes reflect that Ms. Bobiash did not recall whether or not Mr. Kaytor asked the applicant this, and, as mentioned in para. 62 of the Decision, Ms. Bobiash had not been given the Application to read before her evidence. In any event, Ms. Bobiash’s evidence that she did not recall Mr. Kaytor asking the applicant about her heart irregularities is different from denying that he said this, as the respondent submits in the Response.

31The respondent’s assertion that the Tribunal generally did not accept any other statements made by the respondent form para. 89 onwards in the Decision, by itself, fails to raise anything that would bring the Request under Rule 26.5

32It is clear that the respondent disagrees with a number of conclusions reached by the Tribunal in the Decision. However, disagreements do not, by themselves, bring themselves under Rule 26.5(c) or (d) of the Tribunal’s Rules.

33For the reasons set out above, the respondent’s Request is denied.