Budd v. 783720 Ontario Inc., 2016 HRTO 326

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marcia Budd

Applicant

-and-

783720 Ontario Inc. o/a Birchmere Retirement Residence

Respondent

RECONSIDERATION DECISION

Adjudicator: Mary Truemner

Date: March 14, 2016

Citation: 2016 HRTO 326

Indexed as: Budd v. 783720 Ontario Inc.

WRITTEN SUBMISSIONS

Marcia Budd, Applicant

Nicole Simes, Counsel

783720 Ontario Inc., Respondent

Steven F. Wilson, Counsel

Introduction

1This is a request for reconsideration of a Tribunal decision that deals with an Application that alleged discrimination with respect to employment because of disability.

2The applicant alleged that she became ill in the Autumn of 2011, and was so ill on November 28, 2011 that she was unable to leave her bed. Her husband brought the respondent medical notes stating that she needed a leave from work, but the respondent terminated her employment, considering her to have quit. The respondent’s management staff suspected that the applicant took a holiday that she had earlier in the Autumn requested permission to commence on November 28, 2011, permission that the applicant’s manager had denied.

3On June 19, 2015, the Tribunal issued its Decision, 2015 HRTO 825 (“the Decision”), finding discrimination with respect to employment because of disability, and granting monetary remedies. On the basis of evidence from the applicant, her husband and her doctor, the Tribunal found that the applicant was disabled on November 28, 2011, unable to attend work, and that she provided the respondent with medical notes justifying the absence through her husband who delivered them that day to the workplace. The Tribunal found that the respondent ought to have inquired into the applicant’s condition further upon receiving the medical notes which stated she needed to be on medical leave until December 20, 2011. By instead terminating her employment on November 30, 2011, the respondent failed to meet its duty to accommodate disability.

4The respondent has requested that the Tribunal reconsider the Decision.

5The respondent’s argument could perhaps be viewed as an allegation of a failure of natural justice or fundamental procedural fairness. Notwithstanding some concern that I have with respect to the improper widening of the proper scope of reconsideration, I have considered the arguments made and conclude that the Decision describes the evidence led, and the reasons for making its findings of fact. I disagree that there was bias, unfairness or a misapprehension of the evidence that would constitute a conflict with established jurisprudence or that other factors exist which outweigh the finality of Tribunal decisions and I note that the Decision’s reasons reference evidence and findings to justify the conclusion that disability was a reason for the termination. I deny the Request for Reconsideration with respect to the finding of discrimination.

6I grant the Request with respect to compensation for injury to dignity, feelings and self-respect, however, because the adjudicator applied a factor that should not have been applied in determining the amount.

Analysis

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 of Procedure which govern such requests, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2014). Rule 26 states in part:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of 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 includes the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

10As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so.

Respondent’s Reasons for the Request for Reconsideration

11The respondent cites on its Request for Reconsideration the following basis for the Request:

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

2. other factors exist which outweigh the finality of Tribunal decisions.

12The thrust of the respondent’s position with respect to the finding of discrimination and the resulting remedy is summarized in the Overview section of its written submissions attached to the Request for Reconsideration:

The reason for the Applicant’s absence from work on November 28, 2011 was obviously a major issue in this Application from the outset. The Respondent filed a comprehensive response which detailed the facts which showed why it concluded that the Applicant had resigned when the Applicant without advance warning failed to appear at work on November 28, 2011 after having been refused her vacation request. The Vice Chair denied the Respondent a proper opportunity to show why the applicant’s absence on November 28, 2011 was so suspicious and open to question, and closed her mind on the issue at a very early stage in the proceedings before evidence was actually heard. Finally the Vice Chair in making in [sic] her award of compensation for injury to dignity, feelings and self-respect sanctioned the Respondent for having contested the Applicant’s claim that disability had prevented her from attending work on November 28, 2011 notwithstanding that there were objectively reasonable grounds for doubting the Applicant’s claim that she was medically unable to attend work on November 28, 2011.

13The Conclusion section of its written submissions that accompanied the Request for Reconsideration reiterate the respondent’s reasons for requesting a reconsideration of the Decision:

Given the Vice Chair’s patent unfairness to the Respondent in denying its requests [f]or production, discounting of relevant evidence adduced by it and sanctioning it for vigorously putting forth its defence in making her award of compensation under section 45.2(1)2, it is respectfully submitted that allowing the Decision to stand will undermine the public’s trust in the Tribunal as a fair and impartial adjudicative body.

The Finding of Discrimination

14With respect to the alleged unfairness in denying the respondent’s requests for production, the respondent is referring to two Interim Decisions which denied the respondent’s requests for documents that might prove whether the applicant had made travel plans prior to her illness for a period beginning November 28, 2011. One of the respondent’s witnesses, the applicant’s co-worker, testified that after the applicant learned on October 27, 2011 that her vacation request for November 28, 2011 to December 11, 2011 had been denied, the applicant said that she had tickets for a trip during that time and was planning to go anyway.

15The respondent sought the production of a notarized copy of the applicant’s passport; travel documents for the applicant relating to the period November 28, 2011, to December 19, 2011; and the telephone records of the applicant and her spouse for November, 2011, and up to December 19, 2011.

16The respondent takes the position that the adjudicator was “willfully blind” to the significance of the applicant’s travel arrangements, and changes the applicant may have made to them prior to November 28, 2011. The respondent argues that the adjudicator showed bias by prejudging the case and hampering the respondent’s ability to make its case in denying the production requests.

17The first Interim Decision, 2013 HRTO 1812, at paras. 10-20 dealt with the production request:

The RFOP says the respondents intend to lead evidence to establish that after the applicant’s vacation request was denied she said she was going to go anyway as she already had tickets to travel to the United States to help her daughter prepare for her wedding. Although the RFOP does not explicitly state this, presumably the respondents seek production of the applicant’s passport and travel documents to establish she left the country as planned.

The Response to the RFOP filed by the applicant makes a number of admissions with respect to the applicant’s travel during the period November 28 to December 20, 2011. It says on November 10, 2011, the applicant’s spouse purchased a flight with AirTran Airways for him and the applicant to fly from Buffalo, New York to Atlanta, Georgia on December 4, 2011 returning on December 13, 2011. It also confirms that the applicant did in fact go on this trip. Ticket confirmation from AirTran Airways has been provided to the respondents. It is dated November 10, 2011, and identifies the applicant as a passenger.

The respondents’ reply submissions assert that the passport is arguably relevant and should be produced; and in addition, the respondents now seek:

all statements of debits by cheque or debit card or otherwise from the financial accounts of Ms Budd and Mr. Budd to AirTran Airways, or to other carrier, or to travel agency, related to a cancelled air flight to Atlanta Georgia or other destination in the United States.

The respondents do not offer any additional rationale for seeking these records or the applicant’s passport. Given the applicant’s admissions summarised above and her production of proof of purchase of her plane tickets, it is unclear to me why additional production is necessary as there does not seem to be any issue in dispute between the parties concerning the applicant’s travel plans or activities. She has essentially admitted those parts of the respondents’ Response.

Absent some factual dispute between the parties about the applicant’s travel plans and activities during the relevant period, the additional productions requested by the respondents are unnecessary. If there actually is a factual dispute between the parties that is not explained in the RFOP or submissions then the respondents may file another Request seeking production explaining what the issue in dispute is. For the time being however, the respondents’ request for production with respect to any non-disclosed documents related to the applicant’s travel is denied.

Their submissions also state …:

The Respondents submit that the record of telephone calls, when they occurred and to whom during the period, when coordinated with the events described in the Application and Reply [Note: no Reply was filed with the Tribunal], along with the passport record and financial transactions related to flight dates are relevant.

Again it is not entirely clear to the Tribunal what issue is in dispute between the parties that the telephone records of the applicant and her spouse would speak to. A mere assertion of relevance is not sufficient.

In order to establish the telephone records are arguably relevant, the respondents need to state for the Tribunal and the applicant what factual or legal issue is in dispute that the telephone records might speak to. … It may also be that there is some dispute between the parties as to when the applicant started planning her trip to Atlanta, Georgia. However, these possibilities are mere speculation on the part of the Tribunal and that is not sufficient to justify an order for production. It is for the party seeking production to indicate in some way what issue is in dispute that the records sought might address. As above, the respondents may file another Request seeking production that provides that information.

18The respondent then filed another Request for production, and the Tribunal denied it in the Interim Decision, 2013 HRTO 1984, at paras. 17-20:

The RFOP requests an order for production of the following:

All statements of debits by cheque or debit card or otherwise from the financial accounts of Ms Budd and Mr. Budd to AirTran Airways, or to other carrier, or to travel agency, related to a cancelled air flight to Atlanta Georgia, or to other destinations in the United States.

All telephone records of Mr Budd and Ms Budd prior to October 27, 2011 related to ordering or confirming passage to Atlanta Georgia or other destination during a period that includes October 27, 2011.

These requests for production are denied. Again the respondents’ RFOP does not identify what factual or legal issue is actually in dispute that the requested records would speak to.

The RFOP indicates this part of the request is related to an allegation that when the applicant’s request for vacation for the period November 28, 2011 to December 11, 2011, was denied on October 27, 2011, the applicant told another employee of the corporate respondent that she had tickets for a trip during the requested vacation period and was planning to go anyway. But the records that have been disclosed by the applicant indicate tickets were purchased after this alleged conversation on October 27, 2011. So the respondent seems to be seeking production that would either confirm or deny that the applicant was telling the truth when she stated to a colleague on October 27, 2011, she had planned a trip and was going anyway.

Of importance to the respondents’ defence is establishing the vacation was planned prior to November 28, 2011, and the applicant went on the vacation during the same period she claimed she was unable to work due to illness or disability. The applicant admits those facts; they are not in dispute. Whether the applicant made travel arrangements or purchased tickets for the period in question before October 27, 2011, or after that date, is not relevant to any live issues in this Application.

19I do not agree that the denial of the Requests for production involves a matter of general or public importance, or that there are factors at play which outweigh the finality of Tribunal decisions. By pointing to the evidence about what booking plans the applicant made subsequently, the reasons for the denial adequately explain why the proposed production was not relevant despite the applicant’s statement to her co-worker on October 27, 2011 (that the applicant would not be at work on November 28, 2011).

20Insofar as the respondent alleges that the adjudicator was “patently unfair” in denying the requests for production because she prevented the respondent from presenting its case, or that she was prejudging the case without keeping an open mind, and therefore allowing a bias to influence her decision to deny the requests for production, I note that the respondent did not put any allegation of bias before the adjudicator when she made her ruling denying the production requests. While it is clear that the respondent vigorously disagrees with the production decision, in my view, the respondent is essentially re-arguing the issue, asking the Tribunal to come to a different conclusion. As stated above, the Tribunal’s Practice Direction on Reconsideration makes clear that the purpose of reconsideration is not to function as an appeal or an opportunity for a party to reargue an issue. (See also Dwyer v. Chrysler Canada, 2009 HRTO 385, and Chittle v. 1056263 Ontario Inc., 2014 HRTO 525). For that reason, I decline to exercise my discretion to reconsider the production issue. I am also reluctant to exercise my discretion to reconsider this decision on the basis of a bias allegation that was not before the original adjudicator – particularly where that allegation is essentially grounded in a strong disagreement with an adjudicative outcome.

21The respondent argues that one of the ways the adjudicator improperly discounted evidence about the applicant’s previous plans to travel the date she was absent was by misapplying the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67, (H.L.). Even if the adjudicator had misapplied the rule in Browne v. Dunn, I do not agree with the respondent’s argument that “but for” any misapplication, the applicant would not have met her onus to establish discrimination. There was ample evidence to establish discrimination as explained in the Decision. Any misapplication of the rule would not have affected the finding of discrimination, and therefore neither involves a matter of general or public importance, nor outweighs the public interest in the finality of Tribunal decisions.

22The respondent also points to Tribunal and labour arbitration case law to bolster the importance of establishing the whereabouts of an employee who requested leave, was denied leave and then is absent, claiming that he or she cannot attend work because of illness or disability. I note however that the case law was before the adjudicator in this case, and she distinguished it in the Decision while at the same time dealing with the evidence pertaining to the whereabouts of the applicant on November 28, 2011, and making a finding that the applicant was in bed at home because of disability. I see nothing in the Decision’s analysis that leads me to conclude that it is in conflict with established case law as urged by the respondent.

23The respondent appears to argue that the adjudicator discounted relevant evidence other than that sought in its production requests, such as the evidence that the applicant emptied her office and wiped out her files from her computer prior to her absence, that the respondent was unable to reach the applicant at home and that the applicant’s husband brought to the respondent suspicious medical documents.

24I disagree with the respondent’s position that the adjudicator discounted relevant evidence. The Decision carefully reviews the evidence that the respondent argued justified its belief and then its position that the applicant was not absent for reasons related to disability. The Decision explains why that evidence was not so strong as to excuse the respondent from complying with a procedural duty to accommodate by inquiring further into the applicant’s absence before terminating her employment. I see nothing in the adjudicator’s treatment of the evidence that is in conflict with established case law or Tribunal procedure and involves a matter of general or public importance, nor do I see that there are factors at play which outweigh the finality of Tribunal decisions.

25The Tribunal’s jurisprudence establishes that reconsideration is not an opportunity for a party to reargue the case, nor is it available simply because a party disagrees with the decision or findings of fact. While the respondent disagrees with the Tribunal’s finding that the respondent discriminated against the applicant because of her disability, it has presented no basis for exercising discretion to reconsider it.

Compensation Order for Injury to Dignity, Feelings and Self-Respect

26The respondent argues that the adjudicator, in making her award of $25,000 for compensation for injury to dignity, feelings and self-respect, sanctioned the respondent for having contested the Applicant’s claim that disability had prevented her from attending work on November 28, 2011. The respondent points to paragraphs 267-272 of the Decision:

With respect to the particular impact on the applicant of the discriminatory conduct I would note here some of the factors I have considered:

• First, although the applicant continued in counselling for six months after she began, that counselling started not as a result of the respondent’s discriminatory conduct, but rather it was in response to the applicant’s anxiety and depression which pre-dated the respondent’s breach of the Code. The evidence is insufficient to establish it is more likely than not that but for the loss of employment that counselling would have ended earlier than it did.

• Second, although the applicant and Ian Budd say the applicant was devastated or shocked by the termination, Dr. Szelag’s clinical notes of her visit of December 20, 2011 indicate the applicant was feeling better. Her mood and concentration had increased. She was not crying as much. This was two or three days after the applicant received the November 30, 2011 letter saying she was deemed to have quit.

• Third, there is no dispute that the applicant wanted to quit her employment as early as late September, 2011.

• Fourth, although I am satisfied that Ian Budd said something to the effect that the applicant would never work in management again, the applicant’s evidence with respect to mitigation indicates she has continued to look for management positions.

• Fifth, I would observe that during the hearing before the Tribunal, the respondent’s continued belief and assertion that the applicant was inventing her disability and lying repeatedly triggered tears and upset on the part of the applicant. (“the fifth factor”)

With respect to the principle enunciated in Arunachalam that equivalent facts should give rise to equivalent results, taking into account the unique circumstances of each case, neither party referred me to any decisions of the Tribunal in an effort to establish an equivalency argument.

In Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362, the applicant was awarded $10,000 for compensation for injury to dignity, feelings and self-respect where the respondent failed to properly consider the applicant’s need for disability-related accommodation. But in Simpson, the applicant continued in her employment with the respondent.

In Krieger v. Toronto Police Services Board, 2010 HRTO 1361, the Tribunal awarded $35,000 for compensation for injury to dignity, feelings and self-respect where the respondent failed to accommodate the applicant’s post-traumatic stress disorder and terminated his employment for reasons connected to his disability. However, that case involved a lengthy discriminatory period of suspension from work which exacerbated the impact on the applicant.

In Lopetegui v. 680247 Ontario, 2009 HRTO 1248, the Tribunal awarded $20,000 where the applicant was unable to work as a result of injuries sustained in a car accident. He provided the respondent with medical documentation indicating he was temporarily unable to work and requested modified duties. The respondent refused to provide modified work and subsequently terminated his employment in part because he had taken a leave of absence without permission.

Taking into account all of the above I find that an appropriate amount to award the applicant for compensation for injury to dignity, feelings and self-respect is $25,000.

27The respondent argues that the fifth factor considered by the adjudicator in making her decision is grounds for reconsideration because sanctioning the respondent sends a chilling message to respondents who elect to defend themselves, particularly in the context of grounds for the respondent to doubt that the applicant was ill on the date she was absent. The respondent argues that if the use of the fifth factor is acceptable, then it “calls into serious question the fairness of the Tribunal’s proceedings to respondents who elect to defend themselves.”

28The applicant argues that the inclusion of the fifth factor by the adjudicator was simply her observation that the respondent’s disbelief of the applicant’s assertion that she was ill when the respondent terminated her employment continued to have an impact on the applicant as late as the hearing date which prompted tears at the hearing.

29I cannot agree with the applicant’s position. While the Tribunal may properly observe the demeanor of an applicant at a hearing in assessing the subjective impact of discrimination on his or her feelings or mental state, the Tribunal’s consideration of the fifth factor in this case went to the conduct of the respondent during the hearing. The plain wording of the fifth factor in the Decision clearly demonstrates that the adjudicator observed that the respondent’s “continued belief and assertion” that the applicant lied about her disability upset the applicant “during the hearing”. It is clear that the adjudicator considered this in making her award. I also note that the first three of the five factors which the adjudicator considered implied that her award for compensation for injury to dignity, feelings and self-respect would be on the lower end of the range of amounts awarded in the cases she referenced, and yet she determined that the amount should be closer to the higher end.

30I am satisfied that the respondent’s continued assertion of its defence until the end of the hearing was at least one of the justifications for the amount of compensation for injury to dignity, feelings and self-respect that was awarded. I find that the adjudicator’s inclusion of the fifth factor is in conflict with established jurisprudence, which, pursuant to section 45.2 of the Code, awards compensation to address loss arising out of the infringement of a right under Part I of the Code, and not loss arising from a respondent asserting throughout the hearing process that no infringement occurred. Reconsideration is justified in this case because it is a matter of general and public importance to ensure fairness at the Tribunal and to assure respondents that they might defend themselves in the hearing process without adverse consequences beyond those related to any findings of Code violations as alleged and filed against them. Also, the importance of reconsidering the inclusion of the fifth factor outweighs the importance of finality given the potential unfairness to the respondent.

Order

31The Request for Reconsideration is dismissed with respect to all of the issues raised by the respondent except for the issue of quantum of compensation for injury to dignity, feelings and self-respect, as described above.

Next Step

32If the applicant and the respondent are unable to come to an agreement themselves with respect to the quantum of compensation for injury to dignity, feelings and self-respect, then one of them must advise the Tribunal no later than March 31, 2016, and the Tribunal will schedule a hearing of evidence and argument on injury to the dignity, feelings and self-respect of the applicant for the infringement of her Code rights as found by the Decision.