Drummond v. Community Living Ajax Pickering Whitby, 2016 HRTO 963

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Arlene Drummond

Applicant

-and-

Community Living Ajax Pickering Whitby

Respondent

-and-

Canadian Union of Public Employees and its Local 2936

Intervenor

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: July 21, 2016

Citation: 2016 HRTO 963

Indexed as: Drummond v. Community Living Ajax Pickering Whitby

WRITTEN SUBMISSIONS

Arlene Drummond, Applicant

Sharmaine Hall, Counsel

Community Living Ajax Pickering Whitby, Respondent

Paula Rusak, Counsel

Canadian Union of Public Employees and its Local 2936, Intervenor

Elizabeth Nurse, Counsel

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2015 HRTO 654, dated May 19, 2015, which granted the applicant’s request to withdraw her Application upon certain terms including a declaration that the allegations raised in the Application and the amendments thereto were unsubstantiated.

2On June 18, 2015, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. By letter dated October 19, 2015, the Tribunal requested written submissions from the respondent in response to the applicant’s Request for Reconsideration. These submissions were filed with the Tribunal on December 15, 2015. The applicant was granted an opportunity to make written submissions in reply, which were filed on December 29, 2015. The intervenor takes no position on the applicant’s reconsideration request.

3Section 45.7 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction on Reconsideration to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

5The Tribunal’s Practice Direction on Reconsideration includes the following:

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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

7In 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 parties to an application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 provides:

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.

9As a result, I need to determine whether the material filed by the applicant in support of her Request for Reconsideration satisfies the criteria set out in Rule 26.5 relied upon in the Request. The applicant relies upon the criteria identified in Rule 26.5(c) and (d).

10The background to this matter is set out in the Decision at issue on this reconsideration. In essence, the applicant advised her counsel that she wanted to withdraw her Application on the morning of the first of three scheduled hearing days. Rule 10.5 of the Tribunal’s Rules of Procedure provides that, where a response has been filed, an application may be withdrawn only with the Tribunal’s permission and upon such terms as the Tribunal may determine. I invited submissions from the parties as to whether the withdrawal should be granted and if so upon what terms.

11In the Decision, I relied upon the Tribunal’s previous decision in Pannu v. Toronto Transit Commission, 2014 HRTO 1734, to impose a term of granting the withdrawal as being that the applicant was prevented from filing any future application against the respondent and its current or former officers, officials, employees or agents in any way arising out of or relating to the allegations raised in the Application or, where the application relates to the employment context, arising out of or in any way relating to the applicant’s employment or cessation of employment with the respondent. No issue is taken by the applicant with this term in the reconsideration request.

12In addition, I imposed a further term of granting the withdrawal as being that the allegations raised in the Application and the amendments to it were declared to be unsubstantiated. It is this latter term which is the subject of the applicant’s Request for Reconsideration.

13Essentially, the applicant raises two issues on this reconsideration: (1) that this aspect of the Decision is in conflict with established jurisprudence and involves a matter of general or public importance; and/or (2) that this aspect of the Decision violates the principles of natural justice, which outweighs the public interest in the finality of Tribunal decisions.

14With regard to the first issue, the applicant points to a number of Tribunal decisions with which the Decision in the instant case is in conflict. In McDermott v. Ross, 2013 HRTO 1576, the applicant requested withdrawal of the Application two days prior to the hearing. In that case, the respondent expressly requested an order from the Tribunal finding that the applicant’s allegations were unsubstantiated. The Tribunal declined to impose any conditions on the withdrawal, stating that there had been no finding that the applicant’s allegations were or were not unfounded and no reason to depart from the Tribunal’s usual practice of not imposing terms when granting leave to withdraw: see para. 6.

15The applicant also relies on Sharma v. Securitas Canada Ltd., 2014 HRTO 1386, where the applicant requested to withdraw her Application three days prior to the hearing. This request was opposed by the respondent. In granting the applicant’s request and not imposing terms on the withdrawal, the Tribunal stated that the withdrawal of an application is similar to a situation where an applicant fails to appear and the application is dismissed as abandoned. In such circumstances, the allegations raised in the application remain just allegations, and there is no determination by the Tribunal as to whether these allegations are well-founded: see para. 8.

16The applicant further relies on Pannu, above, where the applicant was granted leave to withdraw the Application even after he had completed his evidence-in-chief and had been subject to cross-examination. In that case, while a term was imposed that the withdrawal was “with prejudice” to the filing of future applications on the same facts, no term was imposed declaring that the allegations raised in the Application were unsubstantiated.

17The applicant distinguishes Sawyers v. Noble Corporation, 2014 HRTO 828, on the basis that, while leave to withdraw the Application was granted on the basis that the Application was dismissed, this was done on consent by applicant’s counsel. No such consent was provided in the instant case.

18The respondent in its written submissions notes that the Decision expressly references and considers much of the jurisprudence relied upon by the applicant in her reconsideration request, and the Decision states that the circumstances of the instant case warrant a departure from this Tribunal’s general approach. While that is true, the requirement for reconsideration under Rule 26.5(c) is only that an applicant to establish that the aspect of the Decision being challenged is in conflict with established jurisprudence. It is not required for an applicant to establish that the Tribunal was not aware of or had not considered any such conflicting jurisprudence. In my view, where a decision or order is in conflict with established jurisprudence, reconsideration affords this Tribunal with an opportunity to take a second look at any such decision and re-consider whether the Tribunal wishes to uphold the decision despite any such conflict or reverse the decision to bring it in line with the established jurisprudence. That, in my view, is a proper function of reconsideration.

19The respondent also submits that the facts underlying the instant case are substantially different than the facts considered in the cases relied upon by the applicant, such that a departure from the established jurisprudence is warranted. In particular, the respondent notes that the applicant’s human rights application was the second legal proceeding in which she had raised allegations of discrimination against the respondent, with the first proceeding being in the context of the grievance arbitration process. The respondent notes that the applicant’s grievances were only withdrawn after the grievance arbitration process had begun and only after she had been ordered to make certain medical disclosure, which she avoided by withdrawing her grievances in order to pursue her human rights application before this Tribunal.

20While I appreciate that this may be a distinguishing feature of the instant case from the cases relied upon by the applicant, I note that under the Code, there is no bar to an applicant filing and then withdrawing a grievance and yet being allowed to proceed with a human rights application: see Crowley v. Liquor Control Board of Ontario, 2010 HRTO 2407. There are many reasons why an applicant may choose to do this, including: that the union has carriage of the grievance process, whereas the applicant herself has control over a human rights application; that the grievance arbitration decision is made by a consensually appointed labour arbitrator, while a human rights decision is made by an appointed Tribunal member; that there are differences in terms of procedure in these two proceedings; and that there are differing approaches to remedies. In my view, in the specific circumstances of the instant case, the fact that the applicant previously had decided to withdraw her grievances in order to proceed with her human rights application is not a sufficient basis to distinguish the instant case from the cases relied upon by the applicant.

21The respondent further submits that this Tribunal has the ability to draw an adverse inference where a party fails to call evidence that is reasonably available to it. While there is no doubt that the Tribunal has this authority, the drawing of an adverse inference typically is done in the context of a hearing on the merits of an application, where one party fails to call an important witness or fails to produce relevant documents that are within its control. That is an entirely different situation than where an applicant requests withdrawal of the application, and the Tribunal’s authority is to consider whether to grant the withdrawal and if so whether to impose terms. Were I to accept the respondent’s submission, then an adverse inference could be drawn in every case where the applicant seeks to withdraw the application, since in every such case the applicant has chosen either not to call evidence or not proceed further with evidence that is in the course of being called. This clearly is not the approach generally taken by this Tribunal.

22I accept that the Decision is in conflict with established jurisprudence. I was aware of this at the time the Decision was issued, and, as noted by the respondent, referenced much of the very jurisprudence relied upon by the applicant in her reconsideration request. However, as already stated above, in my view one of the purposes of the reconsideration process is to allow this Tribunal to re-consider a decision that is in conflict with established jurisprudence, and, away from the heat of the moment as it were, re-consider whether such departure is truly justified. With the benefit of the parties’ submissions and upon further reflection, it is my view that there is an insufficient basis in the specific circumstances of the instant case to support that imposing a term of withdrawal declaring the allegations raised in the Application and amendments thereto as unsubstantiated was warranted. I accept this Tribunal’s previous comments in the Sharma and McDermott decisions that the mere granting of an applicant’s request to withdraw does not implicate any finding on the substance of the allegations raised in the application, which remain simply allegations, and does not justify an express finding that the allegations are unsubstantiated. In my view, to hold otherwise and maintain the terms imposed in the Decision would not be in the best interests of the fair, just and expeditious resolution of disputes before this Tribunal, as parties, in the context of a simple request to withdraw, would be called upon to engage in the very advancement of their conflicting positions that the withdrawal was intended to avoid. This, in my view, is not in the Tribunal’s interests, nor is it in the interests of the parties who appear before this Tribunal.

23I further find that the applicant’s reconsideration request involves a matter of general or public importance, as it relates to the circumstances that an applicant needs to consider in making her or his decision whether to withdraw an application filed with this Tribunal, which in my view is an extremely significant decision for an applicant to make. The respondent agrees that the Decision at issue in this reconsideration request concerns a matter of general or public importance, but submits that the Decision’s importance lies in preventing and deterring future applicants from wasting this Tribunal’s scarce judicial resources and/or from using the Tribunal’s process as a weapon to tarnish respondents’ reputations or put a strain on their bank accounts. Without commenting either way on the merits of this submission, and with the benefit of further reflection, I wonder whether maintaining the Decision in this matter in fact would achieve the kind of deterrence sought by the respondent, or whether, perversely, the Decision would rather more likely operate as a disincentive for an applicant to withdraw an application, if the allegations were at risk of being found unsubstantiated in any event, or provide a counter-incentive for the parties to waste even further resources arguing over the terms of any withdrawal and whether a term finding the allegations unsubstantiated should be granted.

24Accordingly, as I have found that the aspect of the Decision challenged by the applicant on reconsideration is in conflict with established jurisprudence and involves a matter of general or public importance, and as I have found that the concerns raised by the applicant are, upon further reflection, warranted, I grant the applicant’s reconsideration request and rescind that aspect of the Decision imposing as a term of granting the withdrawal a declaration that the allegations raised in the Application and the amendments thereto are unsubstantiated.

25In light of this ruling, it is not strictly necessary for me to address the applicant’s submissions that the term at issue was imposed in violation of the principles of natural justice. I will, however, offer a few brief comments in relation to this submission. In my view, the applicant has failed to establish that this specific term was imposed in violation of natural justice. I expressly afforded the parties an opportunity to make submissions to me regarding any terms that should be imposed in granting the withdrawal sought by the applicant. The terms to be imposed are at the Tribunal’s discretion, and are not dictated by the respondent. The applicant, through her counsel, was expressly told that these terms, at the very least, would include a term preventing her from filing any further related application against the respondent, which clearly indicated that other terms might be imposed. In my view, it is sufficient that the applicant, through her counsel, had an opportunity to make submissions before me as to what if any terms should be imposed, especially when terms similar to the one imposed in the Decision have been considered by this Tribunal in previous decisions.

26Further, while upon further reflection I have reversed the challenged aspect of the Decision, I do not accept the applicant’s submission that there is any inadequacy in the reasons as set out in the Decision for imposing the term at issue.

ORDER

27For all of the above reasons, the applicant’s Request for Reconsideration is granted pursuant to Rule 26.5(c) and the term imposed by para. 13(b) of the Decision is hereby rescinded.