Davis v. Windsor (City), 2016 HRTO 301

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louis Davis

Applicant

-and-

City of Windsor

Respondent

-and-

CUPE Local 82

Intervenor

RECONSIDERATION DECISION

Adjudicator: Leslie Reaume

Date: March 4, 2016

Citation: 2016 HRTO 301

Indexed as: Davis v. Windsor (City)

WRITTEN SUBMISSIONS

Louis Davis, Applicant

Selwyn Pieters, Counsel

City of Windsor, Respondent

Patrick Brode, Counsel

1The applicant seeks reconsideration of the Final Decision, 2015 HRTO 896 (“Decision”), dismissing his Application.

2For the reasons set out below, I find that the applicant has not established the existence of any of the criteria in Rule 26.5 of the Tribunal’s Rules of Procedure (“Rules”) that would cause me to reconsider my Decision.

Applicable Principles relating to reconsideration

3In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the Tribunal has made a decision in a case, parties are entitled to treat the matter as final, subject to limited exceptions.

4The circumstances in which a request for reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s Rules:

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 applicant relies on 26.5 c) and d).

The Decision being challenged

6In the Decision, I dismissed the Application on the basis of the following conclusions found at paragraphs 32 through 35:

There is only one allegation before me involving a comment made by Mr. Brown which the applicant found offensive.

Apart from the fact that Mr. Brown does not remember making the specific comment “they are working me like a slave”, there is consistency in the testimony of Mr. Brown and the applicant on all of the other circumstances: the applicant was upset by the comment; he delayed confronting Mr. Brown; when he did confront Mr. Brown he explained why he found the comment so upsetting and then Mr. Brown apologized from “the bottom of his heart”. The applicant accepted this apology as sincere and motivated by the understanding that the comment had been hurtful to the applicant.

In all of the circumstances I cannot find a breach of the Code. I believe that the applicant heard the comment and it is clearly inappropriate. However, while it is true that a single incident can lead to a finding of discrimination, this comment and its resolution are manifestly different from the kinds of egregious single incidents which have lead to such a finding: Way v. Coalition Against Psychiatric Assault, 2011 HRTO 1234.

There is no basis to find that the respondent failed to properly investigate the applicant’s allegations. It is not my role to comment on the investigation into the applicant’s broader claims of poisoned work environment. I see nothing improper about the respondent putting the Darrin Brown investigation on hold for a short period while the broader issues were investigated. The applicant’s allegation that the investigation was intentionally delayed as a reprisal or an effort to (sic) prevent him from filing a timely complaint with this Tribunal is speculative.

7The applicant is also seeking reconsideration of the five Interim Decisions (“IDs”) which preceded the Final Decision in this matter.

THE REQUEST FOR RECONSIDERATION

8I would summarize the applicant’s allegations by saying that he disagrees with my reasons for dismissing the Application as well as with certain Interim Decisions which had the effect of narrowing the allegations considered during the hearing. From the applicant’s perspective, issues were not addressed and witnesses were not permitted to testify, which would have supported a finding that the respondent condones a poisoned work environment. The applicant also disagrees with the way the hearing was conducted, particularly the decision to hold a hearing by teleconference, despite the fact that it was made in collaboration with the parties and with their consent.

Background

9The applicant was represented throughout the hearing process, first by counsel and then by his agents, Clayton Talbert Sr. and Brian Kersey from the Windsor Urban Alliance on Race Relations. It was Mr. Talbert who appeared on behalf of the applicant during the pre-hearing and hearing phase. The applicant has separate counsel representing him on this reconsideration request.

10The Application contains allegations of discrimination on the basis of race and colour as well as reprisal. The reprisal allegations contained in the Application are based on the applicant’s involvement in an internal human rights complaint under the respondent’s Respectful Workplace Program.

11The Interim Decision 2012 HRTO 1848 sets out the details of the applicant’s allegations and my reasons for determining that all but four allegations were out of time. Of those four allegations, three were being adjudicated in another proceeding before a different Vice-chair of the Tribunal. I adjourned this Application pending the outcome in Shreve v. Windsor (City), 2013 HRTO 291 (“Shreve”), in which the Shreve Application was dismissed. My Interim Decision 2014 HRTO 880 explains my reasons for determining that I would not permit the applicant to re-litigate the issues which had been addressed in Shreve. As a result, the hearing was limited to the one remaining allegation involving Darrin Brown and the respondent’s investigation of that allegation. The hearing proceeded on the consent of the parties by teleconference.

The Interim Decisions

12The applicant is asking that the five IDs issued in relation to this matter also reconsidered.

13The first ID, 2009 HRTO 2002, deferred the Application pending the outcome of the grievance process on the request of the respondent. The applicant did not respond to this request at the time.

14In the second ID, 2010 HRTO 2036, the Tribunal reactivated the Application following submissions filed by both parties confirming that the arbitrator was not seized of the applicant’s human rights allegations.

15The third ID, 2012 HRTO 801, granted intervenor status to the union. Neither the applicant nor the respondent filed submissions in relation to this request.

16It is not clear on what basis the applicant is seeking reconsideration of these three IDs.

17The fourth ID is 2012 HRTO 1848. I dismissed a number of the applicant’s allegations on the basis of timeliness, leaving four allegations to be adjudicated by the Tribunal. The Application was deferred pending the conclusion of the Shreve matter. When the Shreve decision was released, the parties were invited to make submissions on the implications of that decision to this Application. The applicant filed submissions which were non-responsive to that issue. Instead, he filed what he referred to as an overall impact statement, expanding on the factual context for the allegations which had been previously dismissed as untimely and adding allegations arising after the filing of the Application. Many of those new allegations were then filed as part of a separate Application which remains deferred before this Tribunal and which is discussed in greater detail below. The applicant appears to be arguing that this decision is incorrect and in conflict with the Tribunal’s jurisprudence on timeliness.

18The fifth and final Interim Decision is 2014 HRTO 880, which deals with the implications of the Tribunal’s decision in Shreve and my decision not to permit the applicant to re-litigate those issues in this proceeding. It is not clear on what basis the applicant is seeking to have this ID reconsidered.

The Deferred Application

19In its response to the Request for Reconsideration, the respondent noted that there is another Application before the Tribunal which was received on May 1, 2013, and which is currently deferred pending the outcome of arbitration. In that Application, the applicant alleges discrimination and reprisal on the grounds of race, colour and disability. The allegations also include the racial slur made to Mr. Shreve in 2005, the applicant’s internal complaint about five members of management in November 2008, and reprisals he is alleged to have experienced as a result of the internal complaint and the first application to the Tribunal in May 2009. These issues are all being addressed through the arbitration process. As recently as December 7, 2015, the applicant’s representative, Mr. Talbert, requested that the Tribunal continue to defer this Application pending the outcome of the arbitration.

The Arguments of the Parties

20Written submissions were filed by the applicant. The Tribunal requested and received a response from the respondent followed by a reply from the applicant. The intervenor did not file submissions. The arguments on both the procedural and substantive issues are set out below.

The Applicant’s Initial Arguments

21The applicant cited the following issues in the initial request in support of the Tribunal reconsidering its Decision:

• Holding a hearing by teleconference rather than in person;

• Limiting the number of witness called by the applicant;

• Not recognizing that the applicant was essentially self-represented;

• Not providing the applicant with an opportunity to cross-examine Ms. Jones following the production of documents during and after the hearing;

• Applying a one-year gap rule in the context of determining whether the applicant’s allegations constitute a series of incidents;

• Overlooking potential reprisals suffered by the applicant because of the filing of his Application and failing to appreciate the entire context of the applicant’s employment;

• Stating that is was not the Tribunal’s role to comment on the investigation into the applicant’s broader claims of poisoned work environment;

• Misconstruing and misapprehending the import of what was said by Darrin Brown to the applicant;

• Incorrectly concluding that the applicant accepted the apology of Darrin Brown as sincere and motivated by the understanding that the comment had been hurtful to the applicant.

Respondent’s Submissions

22The respondent made the following arguments against granting the reconsideration request:

• The request is out of time with respect to the Interim Decisions;

• The applicant does not state on what basis the Interim Decisions should be overturned;

• The Interim Decisions on timeliness and the Shreve allegations are correct. The Tribunal offered the Applicant the opportunity to explain the delay and why the decision in Shreve should be re-litigated;

• The Tribunal asked the parties beforehand if they were agreeable to holding the hearing by teleconference and all parties agreed;

• At no time during the course of the hearing did any party raise an objection that the hearing by way of teleconference was prejudicial to them or unfair;

• The applicant and his representative had the opportunity to bring out facts relevant to the July 30, 2008 incident and cross-examine witnesses;

• The applicant sought to adduce evidence from witnesses on issues which had already been dismissed by the Tribunal in the Interim Decisions;

• The Tribunal ordered the respondent to produce additional documents concerning a timeline for the applicant’s inspection. Those documents were produced and the parties were permitted to make written submissions on them;

• With respect to the allegation of reprisal on the basis of delay in the City’s investigation, the applicant was permitted to cross-examine Ms. Jones on her investigation. The finding that the length of the investigation did not constitute reprisal is correct;

• With respect to the allegations of reprisal against Tim Tidridge, Pete Matheson, etc., the allegations arose after the filing of the Application, they were not brought forward in a timely fashion, and they are the subject of a grievance and arbitration as well as a deferred application before the Tribunal;

• With respect to the allegation that the applicant’s suspension, three years after the filing of the Application, is a reprisal, this allegation is currently the subject of an arbitration;

• On February 6, 2015, the Tribunal issued a Case Assessment Direction, directing the applicant to file witness statements and documents required under Rules 16 and 17 which he had failed to comply with;

• Because the applicant still failed to comply, the Tribunal’s direction was followed by a teleconference on February 18, 2015. A request by the applicant to call a series of character witnesses was denied on the basis that the hearing was imminent, no witness statements had been filed and that character witnesses had no relevance to the issues before the Tribunal.

Applicant’s Reply

23I have found that the applicant’s request is timely and as a result, have not found it necessary to repeat the applicant’s submissions on that issue here. The other issues set out in the Reply include:

• The applicant did not acquiesce to a hearing by teleconference. He was not in attendance during the conference call where this issue was discussed because the call was arranged on short notice. He was told by his representative that the hearing would take place by conference call;

• The Tribunal has not completed its work. The cross-examination of Ms. Jones was never completed. Ms. Jones should have been recalled and the applicant should have had an opportunity to call rebuttal evidence;

• Mr. Tidridge should have been present at the hearing to be cross-examined.

ANALYSIS

24On the issue of timeliness, I agree with the applicant that he can and should, in most circumstances, reserve his reconsideration request on all issues until a final decision of the Tribunal has been issued. There are circumstances where the Tribunal has interrupted a proceeding to consider a reconsideration request where an interim decision has finally disposed of parts of an application. However, even if I determined that the interim decisions that the applicant seeks to set aside were final with respect to some issues, I would still permit the applicant to seek reconsideration in relation to those decisions after a final decision is rendered. The parties who appear before this Tribunal do not possess endless resources, nor does it promote the effective functioning of the Tribunal to interrupt a proceeding to reconsider an issue which may be rendered moot by the time the Application is finally resolved.

25The applicant states that he sought reconsideration of Interim Decision 2014 HRTO 880 on June 30, 2014 (page 2), and that I completely ignored his request. He does not describe how he conveyed his request for reconsideration to the Tribunal. I could not locate anything in the Tribunal’s file which is dated June 30, 2014 or which contains a request for reconsideration.

26With respect to the Interim Decision on timeliness, there were two timely allegations, both of which involved allegations of racist comments in the workplace. I relied on both the nature of the allegations and the gaps in time to determine whether any of the untimely allegations could be tied together to form a series of incidents:

The incidents which are in time involve allegations of racist comments in the workplace. Even if the events of February and March 2005, the alleged acts of reprisal in 2005 and 2006, the applicant’s return to work from medical leave in May 2006, and the allegations of reprisal from June 2006 to February 2007 are connected in some way, I would find that the gap of more than a year between those incidents and the incidents in June and October 2008 constitutes an interruption in the series. More importantly, only the incident of February 2005 is remotely similar in character to the allegations which are in time. While the applicant may perceive this incident as part of a series, it is my view that a gap of more than three years is sufficient to interrupt the series for the purpose of extending the time limit under section 34 of the Code.

27This approach is not in conflict with other Tribunal decisions on timeliness. A number of factors, including the nature of the allegations combined with gaps in time, are routinely applied by the Tribunal in determining whether or not an applicant’s allegations constitute a series of incidents. In this case, my decision relies primarily on a lack of connection in the nature of the allegations. The shortest gap in time is approximately 16 months, with the longest being more than three years. The applicant disagrees with my findings but this does not lead to the conclusion that the decision is out of step with other Tribunal decisions. I am not persuaded that the decision should be reconsidered on this basis.

28With respect to the hearing by teleconference, during a pre-hearing case management teleconference, all of the parties were asked and agreed that the hearing on the merits would take place by teleconference. The pre-hearing teleconference was necessitated by the applicant’s failure, twice, to comply with Rules 16 and 17. The purpose of the call was to give the applicant an opportunity to explain himself and avoid having the Application dismissed.

29During the pre-hearing teleconference, I denied the applicant’s request to call a series of what he described as character witnesses. The hearing was imminent and the applicant failed to provide witness statements. The witnesses were also unrelated to the issues before me, namely, the comment by Darrin Brown and whether the length of time taken to investigate the Darrin Brown allegation constituted a reprisal.

30The applicant now says that it was unfair to him to hold a pre-hearing teleconference on short notice and that he never acquiesced to holding the hearing on the merits by teleconference. The applicant did not raise this issue in his reconsideration request. In his reply the applicant neither admits nor denies that his representative agreed to hold the hearing by teleconference. This failure to directly address his representative’s participation in the decision to hold the hearing by teleconference, while blaming the Tribunal for failing to provide a fair hearing process, is inappropriate. At no time before, during or after the hearing did the applicant indicate that he was not comfortable proceeding by teleconference or that his representative had made a mistake in agreeing to proceed in that fashion.

31With respect to the hearing itself, the applicant testified with the assistance of his representative. Both the applicant and his representative were given an opportunity to cross-examine the respondent’s witnesses.

32The applicant appears to be of the view that the testimony of Ms. Jones ended abruptly prior to cross-examination. This is incorrect. What is described in the applicant’s reply as having occurred during her examination in chief actually occurred during the cross-examination of Ms. Jones by the applicant’s representative. During cross-examination, Ms. Jones indicated that she was looking at a document she referred to as a “timeline”. I directed Ms. Jones to produce a copy of that document over the lunch period for the applicant to review. The respondent produced a two-page memo prepared December 10, 2008 by Ms. Jones setting out the steps she had taken in relation to the applicant’s internal complaints. When the hearing resumed, the applicant’s representative indicated that he had reviewed the document and he completed his cross-examination of Ms. Jones.

33Prior to the conclusion of the hearing, Ms. Jones indicated that she was in possession of other materials which had not been disclosed and which related to her investigation of the Darrin Brown incident. There were six documents in total, four of which contained Ms. Jones’ handwritten notes from her investigation. I directed the respondent to provide copies of those documents to the applicant and established a timeline for the parties to file any further submissions arising from those documents.

34Prior to the conclusion of the hearing, the parties made final submissions, subject to any further submissions that might arise from the post-hearing documents.

35The parties filed post-hearing submissions. The applicant argued that the documents supported his arguments that he had not delayed the investigation; that he had met with Ms. Jones on certain dates; that the investigation into his broader allegations was never completed; that he was in agreement with the recommendation that his complaints should be investigated by an external investigator; and that some aspects of the timeline should be corrected. The applicant also summarized the three internal complaints he filed: the complaint against Darrin Brown August 1, 2008; the complaint of reprisal dated November 17, 2008 which the applicant says was never completed; and the May 1, 2012 complaint related to his suspension.

36Whether the applicant delayed the investigation into his complaint against Darrin Brown was not central to my decision. The applicant alleged that the respondent intentionally delayed concluding this investigation as an intentional act of reprisal for asserting his Code-protected rights. I found the allegation to be speculative and nothing in the documents which were produced by Ms. Jones at the conclusion of the hearing supported this speculation. The investigation report was not received by the applicant within 90 days as is set out in the respondent’s policy. However, the applicant presented no evidence that would support a finding of reprisal under the Code.

37In his post-hearing submissions, the applicant did not seek to have Ms. Jones recalled. He has not indicated in his reconsideration request how he has been prejudiced by not engaging in further cross-examination of Ms. Jones. He also has not indicated how Mr. Tiddrich’s evidence would be relevant to my findings in relation to the Darrin Brown incident or what rebuttal evidence he intends to call if the hearing is re-opened.

38The Code and the Tribunal’s Rules empower the Tribunal to adopt procedures and practices which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the application (section 40). In addition, the Code directs that legislation and rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of matters before it (section 41).

39The hearing of this Application involved evidence in relation to one incident between the applicant and Mr. Brown. The parties were largely in agreement with the facts. There was also an allegation that the timing of the release of the employer’s investigation into this incident was an act of reprisal. The parties were asked for their views on holding the hearing by teleconference and they agreed to proceed in that manner. No concerns were raised about issues of fairness before, during or after the hearing. In these circumstances I am not persuaded that the decision to hold a hearing by teleconference and providing the parties with the opportunity to make post-hearing submissions on the documents which were released during the hearing, meets the standards established in Rule 25 c) and d).

40There are a number of other issues raised by the applicant which I have addressed separately below.

41The first is the fact that various allegations of reprisal appear throughout the applicant’s reconsideration materials. The allegations of reprisal contained in the original application were dismissed because they were not timely. The allegations of reprisal which arose following the filing of the May 2009 Application are part of the grievance/arbitration process and contained in the deferred Application. When the applicant alleges that the hearing did not address the full scope of the reprisal allegations, that is explained by the fact that they were either dismissed as untimely or were the subject of the second Application. The only reprisal allegation before me was the issue of delay in disclosing the Darrin Brown investigation report.

42The second issue relates to the alleged erroneous finding of fact about the sincerity of Darrin Brown’s apology. The applicant testified that he spoke with Mr. Brown about his long-standing concerns about the treatment of visible minorities at the workplace. He also told Mr. Brown that he was very hurt by the comment. The applicant testified that as a result of that discussion he did feel that Mr. Brown understood his feelings and that his apology was offered “from the bottom of my heart.” My findings related to the applicant’s feelings about the sincerity of Mr. Brown’s apology and not the fact that the applicant remained of the view that the issues should be addressed by his employer.

43The third is the applicant’s reference to the decision of the Divisional Court in Aiken v. Ottawa Police Services Board, 2015 ONSC 3793 (“Aiken”) The Aiken case arises from a very discrete set of circumstances. The applicant signed a settlement agreement which included an admission of liability from the respondent. He then sought to proceed to hearing to call expert evidence on an expanded range of remedies which were not raised in his original Application. That is not comparable to the circumstances of the Application before me. The applicant’s allegations were narrowed on the basis of timeliness and the re-litigation of the Shreve issues. The hearing into the remaining issues proceeded and the applicant was given a full opportunity to testify and cross-examine the witnesses relevant to those issues.

44Finally, the applicant takes issue with my comment that it was not my role to comment on the investigation into the applicant’s broader claims of poisoned work environment. The applicant argues that I have misapprehended the role of the Tribunal. However, read in context, this statement clearly means that the issue was not before me.

ORDER

45The Request for Reconsideration is denied for the reasons set out above.