HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Federow

Applicant

-and-

The Corporation of the City of Niagara Falls and

the Canadian Union of Public Employees and its Local 133

Respondents

RECONSIDERATION DECISION

Adjudicator: Ken Bhattacharjee

Date: April 28, 2016

Citation: 2016 HRTO 562

Indexed as: Federow v. Niagara Falls (City)

WRITTEN SUBMISSIONS

Jason Federow, Applicant

Civita Gauley, Counsel

Introduction

1The purpose of this Reconsideration Decision is to address the applicant’s Request for Reconsideration of the Tribunal’s Decision, 2015 HRTO 377, which dismissed the Application.

2I apologize for the delay in issuing this Reconsideration Decision. Due to an administrative error, I only recently became aware that the applicant had filed a Request for Reconsideration.

BACKGROUND

3On January 15, 2014, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against him with respect to employment because of his disability.

4On September 26, 2014, a summary hearing took place. On March 24, 2015, the Tribunal issued a Decision, which dismissed the Application on a preliminary basis. The Application against the corporate respondent was dismissed on the basis that a proceeding before a labour arbitrator appropriately dealt with the substance of the Application. The Application against the union respondent was dismissed on the basis that it had no reasonable prospect of success.

5On April 23, 2015, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. The Request focused on the dismissal of the Application against the corporate respondent, and specifically, the Tribunal’s interpretation and application of s. 45.1 of the Code, which provides that the Tribunal may dismiss an Application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

ANALYSIS

6Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal rules.

7Rule 26.5 of the Tribunal’s Rules of Procedure states that 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.

8The Tribunal has also issued a Practice Direction on Reconsideration to provide guidance to the community on the nature of the reconsideration process. The Practice Direction states:

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.

9In his Request for Reconsideration, the applicant indicated that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5 c) and d). Specifically, the applicant argued that the Decision is in conflict with established jurisprudence because it found that Barker v. Service Employees International Union, 2010 HRTO 1921 (“Barker”) and similar cases are no longer correct law. Para. 20 of the Decision stated:

In support of his submissions, the applicant referred to the legal principles set out in a number of Tribunal cases addressing s. 45.1 of the Code (for example, Barker v. Service Employees International Union, 2010 HRTO 1921), which were decided prior to [the Supreme Court of Canada’s Decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”)], and, in my view, are no longer correct law in light of Figliola.

10The applicant argued that the principles relied upon by the Tribunal in Barker remain good law as they are not inconsistent with the reasoning in Figliola. Specifically, the applicant stated the following at paras. 14-17 of his Request for Reconsideration:

This Tribunal considered both Figliola and Barker in its decision of A.G. v. Bombardier Aerospace Inc. [2014] OHRTD No. 1168. In doing so the Tribunal confirmed that Figliola explains the significance and importance of finality of litigation and the avoidance of multiple proceedings, but went on to distinguish the case before it, wherein the Applicant gave testimony for 1.5 days and called witnesses including the employer’s physician from Barker. Particularly, it was reasoned that the arbitrator who previously considered the grievance arbitration considered evidence about the employer’s ability to accommodate the applicant as well as the applicant’s medical history, which was not done in Barker.

Such a review in Vice-Chair Kershaw’s analysis of s. 45.1 supports that Barker is not rendered incorrect as a result of Figliola but is supportive of the consideration to be given in determining whether or not a matter was appropriately dealt with and the parties have had a full and fair opportunity to participate in the process which ultimately would result in a final decision regarding their rights under the Code.

While Vice-Chair Kershaw ultimately dismissed the Application based on s. 45.1 of the Code in Bombardier, the analysis included reference to Barker as distinguished from the case at bar as a result of the process including the Applicant’s participation in the proceeding which included both his own, as well as physician testimony, all in furtherance of the human rights accommodation issue being appropriately dealt with.

It is respectfully submitted that Barker remains persuasive and good law in light of Figliola and provides support for the analysis that is to be undertaken by the Tribunal in rendering a decision that has the effect of a final and binding dismissal.

11I disagree that the Decision is in conflict with established jurisprudence. Shortly after the Supreme Court of Canada released Figliola, the Tribunal’s Associate Chair released Paterno v. Salvation Army, 2011 HRTO 2298 (“Paterno”), which re-assessed the Tribunal’s jurisprudence on s. 45.1 of the Code in light of Figliola. With respect to Barker and similar cases, the Associate Chair stated at para. 24:

The key question is whether the arbitration appropriately dealt with the substance of these Applications. In considering this question, this Tribunal may not evaluate the procedural or substantive correctness of the other proceeding: Figliola at para. 38. To the extent that the applicant makes arguments that the arbitrator erred in evaluating the Code or the evidence, these are not proper factors. Previous jurisprudence that suggested that the Tribunal should consider whether the other proceeding applied proper human rights principles is no longer applicable in light of Figliola. [Emphasis added]

12Since then, the Tribunal has issued a significant number of Decisions applying s. 45.1 of the Code, and Bombardier is the only Decision where the Tribunal cited Barker and suggested that the principles set out in it are still correct law. To the extent that there is a conflict between the reasoning in my Decision in the case at hand and the reasoning in the Decision of another Vice-chair in Bombardier with respect to the applicability of the principles in Barker, my position is that the reasoning in Bombardier conflicts with Paterno, is an outlier, and should not be followed.

13Accordingly, I am not satisfied that the Decision is in conflict with established jurisprudence and the proposed reconsideration involves a matter of general or public importance, or that other factors exist that outweigh the public interest in the finality of the Decision.

ORDER

14The Request for Reconsideration is dismissed.