Human Rights Tribunal of Ontario
Between: The Estate of Judith Taylor, Applicant -and- Royal Canin Canada Company, Respondent
Reconsideration Decision
Adjudicator: Josée Bouchard Date: December 1, 2017 Citation: 2017 HRTO 1600 Indexed as: Taylor Estate v. Royal Canin Canada Company
Written Submissions
The Estate of Judith Taylor, Applicant Cézanne Charlebois, Counsel
Introduction
1On September 29, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 1286, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.
Background
2The Tribunal acknowledges that this is a case involving very difficult circumstances. Judith Taylor was a highly esteemed and skilled veterinarian who worked for the respondent, Royal Canin Canada Company (“Royal Canin”), from July 2008 to January 24, 2014. On that date, to her employer’s surprise, Dr. Taylor submitted her resignation. On January 26, 2014, Dr. Taylor committed suicide. This was a tragedy and the Tribunal sympathizes with Mr. Taylor and his family.
3However, for the following reasons I find that the applicant has not established the existence of any of the criteria that would lead to reconsideration of the Tribunal’s Decision.
4The Tribunal’s Decision found that the Application was untimely pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) and that the delay was not incurred in good faith. More specifically, the Tribunal found as follows:
a. The last incident occurred on January 24, 2014, when Dr. Taylor resigned from her position with the respondent. The Estate of Judith Taylor (“the Estate”) filed the Application on April 20, 2016, more than two years after the last incident and more than one year past the timeline established in s. 34 of the Code.
b. Although the applicant argued it had insufficient information to identify a potential Code violation, the Tribunal found that the applicant had sufficient information during the year following the last incident to file an Application with the Tribunal and it failed to do so.
c. The documents filed by the applicant with the Application show that Mr. Taylor was in communication with the applicant’s main witness, Dr. Taylor’s former veterinarian colleague, on October 3, 2014, within one year of the last incident. Among other things, Dr. Taylor’s colleague noted that “the harassment [at work 6 months prior to her suicide] had to do with the workload the worker was experiencing”, “she believed [Dr. Taylor] struggled with the increased workload”, “what also added to [Dr. Taylor’s] stress was that she was being asked to take on more enquiries dealing with internal medicine which she was not trained for” and “it clearly was getting very overwhelming for her, as was evidence of how the worker looked […]”.
d. Also of significance, the applicant filed WSIB claim 27028286, received by the WSIB Investigator on November 27, 2014 within the one-year limitation period, which claimed that Dr. Taylor committed suicide as a result of harassment at work. The WSIB Investigator contacted Dr. Taylor’s veterinarian colleague on December 16, 2014 and had a lengthy and detailed discussion with her about the relationship between Dr. Taylor’s mental and physical well-being and her work.
The Request for Reconsideration
5The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:
a. The Tribunal’s reasons are incorrect and unreasonable and do not fall within a range of possible and acceptable outcomes in light of the legal and factual information presented.
b. The delay was related to the discoverability of any Code related issues not the discoverability of witnesses or evidence to support those.
c. The reasons for dismissal place primary importance on the information that could have been obtained from Dr. Taylor’s colleague but the colleague knew nothing about the Code related issue of mental illness and the employer’s failure to accommodate. This was vaguely discovered in February 2016 upon receipt of the Ontario Provincial Police information.
6Rule 26.4 of the Rules of Procedure states “A party who has been served with a Request for Reconsideration need not file a response with the Tribunal unless the Tribunal directs that a response is required”. The Tribunal did not direct the respondent to file a response.
The Law
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 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, effective as of January 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.
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. 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
11I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.
12The applicant relies on Rule 26.5 (a), (c), and (d) of the Rules of Procedure.
13In support of its Request, the applicant essentially repeats arguments made orally before the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.
14The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.
15I am not convinced that any findings made in the Decision are in conflict with established jurisprudence or Tribunal procedure.
16It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In 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 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.
17The 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.
18In 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.
Transcript of Proceeding
19With its request for reconsideration, the applicant filed a transcript of the proceeding, which took place by teleconference. However, the Tribunal itself did not record the hearing and the applicant did not request permission of the Tribunal to record the proceeding. If the transcript was made from a recording, which seems likely, that recording was made without the knowledge or consent of the Tribunal.
20The Tribunal’s Practice Direction on Recording Hearing states:
The Tribunal does not normally record or transcribe its proceedings. The Tribunal will record the hearings when it is necessary to accommodate Code-related needs of the panel, a party or a representative who would otherwise be unable to participate in the hearing. Please contact the appropriate Registrar as soon as possible if you require accommodation.
Electronic recording or transcription of the hearing is subject to the discretion of the Tribunal and to any terms set by the Tribunal.
Self-recording and Transcription
Parties may record hearings using their own equipment and transcribe those recordings at their own expense with the consent of the panel. Such recordings do not form part of the Tribunal's record of proceedings including the record filed in respect of any appeal or application made under the Judicial Review Procedures Act.
Use of a Court Reporter
The Tribunal may permit a party to have a court reporter record the hearing at the party's expense. Where the court reporter produces an official transcript the Tribunal will require the party to provide copies to the panel and the other parties. Where an official transcript is provided to the panel and other parties it will normally be considered part of the Tribunal's record of proceedings and may be included in the record filed by the Tribunal in respect of any appeal or application made under the Judicial Review Procedures Act.
[Emphasis added]
21The general practice of the Tribunal is not to record or transcribe its proceedings. A party who wishes to record hearings must request the Tribunal’s permission. This is important for a number of reasons. Depending on the reason for the request and the purpose for which the requested recording is intended, the Tribunal may make an order providing conditions or restrictions on the use of any recording. So for example, while the Tribunal has routinely granted requests to make recordings for the purposes of supplementing personal notes, it might restrict the use of such a recording to personal use. Such an order allows for convenience and minimal cost while mitigating potential concerns about reliability of an informal recording through restrictions on its use. On the other hand, where a party wishes to create a record of the proceeding for review purposes, the Tribunal retains the discretion to permit or require a party to retain the services of a court reporter or take other steps to ensure the reliability of any such recording including retaining control over any recording process.
22The requirement to obtain leave of the tribunal to record a hearing also ensures that other parties are aware that a hearing is being recorded. This can be particularly important if a hearing is being recorded informally because it allows opposing parties and, for example, their legal representatives to avoid discussions that might take place during breaks and which they might reasonably otherwise believe were confidential. I recognize that this particular consideration would likely not be in issue in the context of a teleconference hearing. Notice is also important as parties may raise objections to the recording or request conditions in the use of the recording or transcript. In addition, where a more formal recording is intended, the Tribunal has the discretion to allow the recording on conditions that ensure not only reliability but reasonable access to other parties. For example, the Tribunal has ordered that the party retaining a court reporter provide a copy of the transcript to the other parties and the Tribunal. See Segal v. Toronto (City), 2009 HRTO 1907; Clennon v. Toronto East General Hospital, 2009 HRTO 1242.
23The applicant filed a transcript of the proceeding without leave from the Tribunal to record the proceeding. In these circumstances I have no way of assessing the completeness or reliability of the transcript or of any recording on which it may have been based. This is extremely troubling, particularly in light of the fact that the applicant is represented by counsel. As I have no way of assessing the completeness or reliability of the transcript, or any underlying recording that it might have been based on, I have not considered the content of the transcript. Although this behaviour does not otherwise impact my decision to deny the reconsideration request, I feel compelled to comment on the seriousness of the matter.
Order
24The request for reconsideration is denied.
Dated at Toronto, this 1st day of December, 2017.
“Signed by”
Josée Bouchard Vice-chair