Betts v. United Brotherhood of Carpenters and Joiners of America, Local 1256, 2017 HRTO 1564

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Betts Applicant

-and-

United Brotherhood of Carpenters and Joiners of America, Local 1256 Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw
Date: November 27, 2017
Citation: 2017 HRTO 1564
Indexed as: Betts v. United Brotherhood of Carpenters and Joiners of America, Local 1256

WRITTEN SUBMISSIONS

John Betts, Applicant Zahra Binbrek, Counsel

United Brotherhood of Carpenters and Joiners of America, Local 1256, Respondent John Moszynski, Counsel

Introduction

1On July 17, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 886, upholding the Application. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2The Tribunal’s Decision found in part as follows:

• The respondent discriminated against the applicant by not removing the requirement to continue challenging the exam and the deadline to obtain his COQ, which resulted in the applicant’s layoff.
• The respondent shall pay the applicant $8,000 for injury to dignity, feelings and self-respect and 8 months’ wage loss on a gross basis, in light of the fact that the respondent was not the applicant’s employer and was not responsible for making statutory remittances on his behalf.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration (“Request”) provides the following reasons why the Tribunal should reconsider its Decision:

a. 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; b. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions; and c. The Decision is silent with respect to the other losses the applicant incurred related to his wage loss and governed by the Provincial Collective Agreement between the Carpenters’ Employer Bargaining Agency and the Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America, effective May 1, 2013 to April 30, 2016 (“collective agreement”), specifically his lost pension for 40 hours per week at $7 per hour for the same 8 months; reinstatement or reimbursement of 18 months of banked benefits he had to use as well as 3 months of banked benefits for which he had to pay $160 per month; and lost RRSP contributions of $14,560 per year.

Applicant’s Submissions

4The applicant’s counsel submits that when she realized she had led no evidence with respect to lost benefits and pension, she wrote to the respondent and set out the losses being claimed by the applicant that included these losses. The respondent’s counsel responded the same day stating it did not dispute the relevant rates governed by the collective agreement, but opposed the basis for granting any remedy. Applicant’s counsel submits that if she had known there was any dispute about the type and/or amount of remedies she could have filed a Form 10 Request for an Order During Proceedings requesting permission to elicit evidence of the applicant’s specific losses.

5Applicant’s counsel asserts that in her closing submissions she requested lost pension at 40 hours a week at $7 per hour for a total of $21,840; banked benefits at $160 per month for 21 months totalling $3360; and lost RRSP contributions calculated at $280 per week for a total of $21,840.

6Applicant’s counsel submits that the respondent counsel’s closing submissions focused on the applicant’s ability to work after his layoff and did not dispute the law on remedies but noted that in the construction industry there is no guarantee of work and the applicant was not fit to work.

7Applicant’s counsel further submits that the applicant provided no evidence with respect to his wage loss or the other related specific losses and was surprised that the Decision addressed lost wages but not the applicant’s other losses. She submits that in accordance with Pilon v. Cornwall, 2012 HRTO 177 (“Pilon”), the Tribunal should have ordered a remedy that included the applicant’s lost pension and benefits despite no evidence being called.

8Finally, the applicant’s counsel submits that it appears that the specific losses the applicant requested at the hearing differ from what he would have been entitled to pursuant to the collective agreement and he seeks an order confirming that he is entitled to “lost wages and related payments/entitlements as outlined in the applicable Collective Agreement”.

Respondent’s Submissions

9The Tribunal requested submissions from the respondent. In its submissions the respondent opposes the applicant’s Request, and takes the position that the reasons provided by the applicant do not fall into any of the permitted categories for reconsideration.

10The respondent takes the position that the Decision is not in conflict with established case law and does not involve a matter of general or public importance, nor has the applicant cited any Tribunal procedure with which the Decision is in conflict.

11The respondent submits that while the applicant relies on Pilon, the Tribunal specifically referred in its Decision to the instant case being unique, and further submits that it is not aware of any case where a union has been ordered to make payments for pension and other benefits. It submits that had the Tribunal intended to make an award for pension and benefits it would have specifically stated so.

12In addition, it submits that in Pilon the Tribunal specifically made awards for wage loss and lost benefits and pension contributions and did not compound the losses under wage loss. In other words, the Tribunal did not intend to make any other award as part of its wage loss award, particularly since this was a unique case.

13The respondent concedes the applicant requested remedies that included lost pension, benefits and RRSP contributions, but points out that the applicant led no evidence with respect to his losses, and the respondent’s email in response to the applicant’s counsel’s e-mail setting out the losses claimed did not give the applicant any reason to believe it agreed to the losses the applicant claimed.

14The respondent submits that the applicant’s Request is an attempt to remedy deficiencies in his case.

15Finally, the respondent denies that the applicable collective agreement is the one the applicant cites but instead is the Maintenance Agreement between the respondent and the Sarnia Construction Association under which the applicant was employed regularly, and in accordance with which the respondent paid the applicant the 8 months’ wages.

THE LAW

16Under 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.

17The Tribunal has issued Rules governing 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). Most relevant to this Decision is Rule 26 which states:

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.

18The 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.

19As 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. 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.

ANALYSIS AND CONCLUSIONS

20I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

21As indicated above at paragraph 3(a) and (b), the applicant relies on Rule 26.5(c) and (d).

22With respect to Rule 26.5(c), it is important to note that the issues with respect to remedy raised in this Request were the subject of submissions before the Tribunal. The applicant requested remedies including lost pension and benefits at the hearing, and I made a finding that the applicant was entitled to wage loss. I did not make any specific mention of lost pension and benefits, and my decision would have been clearer if I had, but in the unique circumstances of this case, I considered all of the remedies available to me and awarded the applicant wage loss for 8 months for the reasons I set out in the Decision.

23I note that despite the unique circumstances of this case, the applicant did not call any evidence or make any submissions in closing about how the union would be responsible for lost pension or benefits or whether or how the union administers those payments.

24As the Tribunal stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 (“Sigrist”) reconsideration is not an opportunity to re-argue a case. Once the parties 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

25The Tribunal also stated in Sigrist that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that its submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

26I am not convinced that any findings made in the Decision are in conflict with established jurisprudence. In my view, not only is there no settled understanding of how or whether a union should be responsible for wage loss when it is not the applicant’s employer I also find that my decision is not in conflict with the case the applicant cited, Pilon, or for that matter any other Tribunal jurisprudence, given the unique circumstance in this case of the respondent being the applicant’s union. Like the respondent, I have been unable to find any Tribunal jurisprudence in which it awarded pension and lost benefits remedies to be paid by a union, and the applicant did not refer to any in his submissions. While I allowed the applicant’s claim for wage loss, I specifically and intentionally made no order for his other wage-related losses.

27In addition, I find that Pilon is distinguishable because it deals with an employer/employee situation as opposed to the union member/union situation in this case. In Pilon, the employer agreed that if a wage loss remedy was awarded, pension contributions would follow. The Tribunal found in Pilon at paragraph 24:

The applicant also sought compensation for lost pension contributions. At the hearing the respondent City stated that any period for which lost wages were ordered would be considered pensionable service and appropriate deductions and co-payments would be made into the pension plan. On the strength of that assertion, I find that no other order in this regard is required.

28In this case, this is the kind of evidence that was missing. There also was no evidence to clarify how the applicant could make both a pension contribution and an RRSP contribution, as a pension contribution may preclude an RRSP contribution.

29In addition to finding no conflict between my decision and the established jurisprudence, I also note that the applicant made no submissions with respect to how the proposed reconsideration involves a matter of general or public importance, and I find it does not. As such, the applicant has not satisfied the requirement under Rule 26.5(c).

30With respect to Rule 26.5(d), the applicant did not make submissions with respect to what other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

31In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.