Donna Magee v. Toronto District School Board, 2017 HRTO 1470

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Magee Applicant

-and-

Toronto District School Board Respondents

RECONSIDERATION DECISION

Adjudicator: Leslie Reaume Date: November 7, 2017 Citation: 2017 HRTO 1470 Indexed as: Magee v. Toronto District School Board

WRITTEN SUBMISSIONS

Donna Magee, Applicant Self-represented

Toronto District School Board Gail Geronimo, Counsel

Introduction

1On August 8, 2017, the Tribunal issued its Decision, 2017 HRTO 1013 (the original Decision), dismissing this Application on the basis of section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"). On September 7, 2017, the applicant filed a Request for Reconsideration of that Decision. The Tribunal requested submissions from the respondent, which were filed on October 17, 2017.

Reconsideration

2Under 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.

3The 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 2008, last amended April 2014). Rule 26.5 states:

A Request for Reconsideration will not be granted unless the Tribunals satisfied that:

a) there are new facts or evidence that could potentially be determinative of the case and the could not reasonably have been obtained earlier;

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;

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 Tibunal, outweigh the public interest in the finality of Tribunal decisions and orders.

4In this case the applicant relies on subsections a), c) and d).

5The Tribunal's Practice Direction on Reconsideration 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.

Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Analysis and Decision

New Facts or Evidence

6In order to grant reconsideration, I must be satisfied that the applicant has established:

• that there are new facts or evidence;
• that could be potentially determinative of the case; and
• that could not reasonably have been obtained earlier.

7The respondent has, with some minor exceptions which I have addressed below, correctly summarized the information produced by the applicant in support of her Request, at paragraph 9 of its submission:

a. Email Communications to the head of the Aboriginal Education Team (AET) which relate to the applicant's allegation that the head of the AET failed to respond to the applicant's requests to "clear things up" and to stop engaging in reprisal and discrimination. Email communications to another woman mentioned in paragraph 26 of the original Decision which are related to the allegation that she put her hand on the applicant's back and stopped the applicant from communicating with the head of the AET. These allegations are addressed in the original Decision;

b. Legal Memorandum from 1999 written by a lawyer which summarizes the Union's position in relation to the applicant's employment matters with the Board on behalf of the Elementary Teaching Federation of Ontario and a second memorandum from 2000;

c. Medical evidence from 2012 and 2016 demonstrating the applicant's severe iron deficiency and severe degenerative arthritis and osteoarthritis;

d. Articles written by lawyers on general damages in HRTO cases, developments in the law of reconsideration and the top ten employment law cases involving women's workplace rights;

8In her submissions the applicant provides further information describing the relationship between "complex PTSD" and "institutional betrayal", as well as understandings and connections she has made through the therapeutic process. She also describes the documents she has filed in support of the Request, alleged errors and omissions in the original Decision and more information about the period between June 2003 and September 2007.

9In the original Decision I noted that the applicant was seeking compensation for what she described as the effects of psychological battering in the workplace which began in 1989-1990 and continued throughout her career. The applicant retired from her position as a teacher in 2003, 9 years prior to the filing of her Application with the Tribunal. I provided the applicant with several opportunities for oral evidence, submissions and supplementary documentary material separated by significant periods of time which the applicant requested as an accommodation.

10I accepted that the applicant had experienced periods during which the symptoms of her disability presented her with challenges in many aspects of her life. I also accepted that the symptoms were particularly acute when the applicant took steps to have her allegations addressed. I accepted that there were periods following the pursuit of various avenues of recourse when the applicant was required to retreat and recover from those efforts. I found, however, that this did not address the question why, during those periods when she was capable of initiating other actions, the applicant did not pursue an application with the Ontario Human Rights Commission or the Tribunal.

11My reasons for dismissing this Application were summarized at paragraph 32 and fully explained in the original Decision:

I have four primary reasons for dismissing this Application, which are described in greater detail below. First, the applicant obtained legal advice in February 2012 and filed her Application within what she perceived to be the one-year limitation period, demonstrating her capacity to meet that deadline despite the significant symptoms she was experiencing during that period. Second, there are significant gaps in time for which there are no allegations of discrimination and no connection between the applicant's disability and her failure to file an application. Third, the post-retirement allegations, with the exception of the age discrimination in 2008, are so vague that they cannot be described as allegations of discriminatory conduct or linked to the pre-retirement allegations for the purpose of finding that the applicant's allegations constitute one long series of incidents. Fourth, even if the post-retirement allegations were cogent and complete, the applicant retained a lawyer in 2008 and took significant steps to obtain a remedy for the entire history of her allegations against the respondent. I recognize that after more than a year of unsatisfactory responses from the respondent, the applicant felt the need to retreat into other work. However, the applicant's explanation for not filing an application when she received legal advice in 2008 is not based on her disability, but on assumptions she made about her lawyer's advice. I am not satisfied that this explanation establishes that the delay in filing from 2008 to 2012 was incurred in good faith.

12The applicant had ample opportunity to address the issues related to the timeliness of her application which I addressed at paragraphs 5 and 6 of the original Decision.

13I have carefully reviewed the material and submissions filed by the applicant. The applicant disagrees with my findings and her submissions and materials amount to re-argument of her case. There are no new facts or evidence raised in the Request which would be potentially determinative of the case. In addition, the applicant has not explained why this material could not have been obtained and/or presented to the Tribunal during the hearing. The emails to the head of the AET, for example, are directly related to issues raised in the applicant's original narrative which she testified about in detail. With respect to the legal memorandum and medical evidence, the applicant's submissions in relation to these documents are vague and do not sufficiently address how they are potentially determinative of the issue of timeliness, or why the material could not have been obtained earlier.

14In Kowal v. R.W. Timber, 2017 HRTO 291 at paragraph 17, the Tribunal stated:

It is important to note that the issues the applicant repeats in her Request for Reconsideration were the subject of the applicant's written submissions that were considered by the Tribunal, and dealt with in its Decision...I find the submissions in this Request amount to nothing more than additional argument on an issue already fully canvassed before the Tribunal..."

15The respondent argues that the applicant in this case repeats her submissions from the initial Application, commenting on matters such as post-traumatic stress disorder, discrimination in employment with the TDSB, and general medical conditions that she had around the time of the filing of the Application. I agree with the respondent that the applicant has not provided anything new that could not have been obtained earlier, nor does she raise any issues involving a matter of general or public importance.

16In her Reconsideration Request, the applicant expresses her disagreement with my Decision and reiterates the arguments in favour of extending the limitation period which were raised in her extensive written submissions and over several days of oral submissions. As the Tribunal stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34:

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 final and closed, subject to limited exceptions.

Conflict with Established Jurisprudence or Tribunal Procedure

17In order to grant reconsideration, I must be satisfied that my Decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. The applicant must statisfy both parts of this test to allow the Tribunal to grant reconsideration. In this case the applicant did not specify any case law or Tribunal procedure which may have been in conflict with the Tribunal's decision. The applicant provided news articles from various law firms which cited cases involving the Tribunal but failed to provide any context for understanding how that information supports her contention that the decision is in conflict.

Other Factors That Outweigh the Public Interest in the Finality of Tribunal Decisions

18I agree with the respondent that the applicant does not provide an explanation as to why her proposed Reconsideration would involve a matter of general or public importance. The application is primarily related to the private employment relationship between the TDSB and the applicant. The issues the applicant raised about the relationship between disability and timeliness were evaluated on the basis of her personal circumstances and the evidence she provided. The original Decision confirms the general principle that the existence of a disability could provide a good faith reason for delay but that issue must be addressed on the basis of individual assessment.

19For those reasons, I find that the applicant has not established that the factors set out in Rule 26.5 would lead to a reconsideration of the Decision.

20The Request is denied.