Tuesday, November 20, 2012

HRTO Relaxes Test for Reconsideration

The recent reconsideration in Garrie v. Janus Joan was a big deal, not only for the subject matter of the case, but also because it represented a relatively rare event in the Tribunal - reversing its own decision.

And now there is another example in which the same thing happened:  In April, adjudicator David Shannon released his decision in Britton v. General Motors of Canada, ordering GMC to pay Britton $10,000 based on a failure to accommodate the applicant's epileptic seizures:  He regularly had seizures of 15-20 minutes, and had had several seizures at work.  According to David Shannon, "[i]f someone pulled him during the seizure he would pull the other way, but if asked to sit down, he would comply".  Normally, when he had a seizure, he would be attended to by on-site nursing staff, he would lie down for a time, then he would resume his duties once he recovered.

On the occasion in issue, however, it was near the end of his shift, and so he told the nurse that he wanted to go home to recover there, as he had a carpool arranged.  The nurse, however, wanted to call an ambulance, which he thought was unnecessary.  He began to walk to the exit, and the nurse called security.  When he got to the exit - and this was on a security video entered into evidence - he tried to leave peaceably through the turnstile, but was restrained from doing so - a security guard took him in a bear hug from behind, one of the paramedics already on-site "taunted the applicant by lifting his leg and threatening to kick in a karate style motion while the applicant was restrained", then the police arrived, threw the applicant to the ground, handcuffed him, and took him away.  In the mean time, as it was a shift change, there were "several dozen people" passing by.

The police took him to the hospital, where he was examined and cleared, then the paramedics and police apologized and the police got him home safely.

The entire experience caused the applicant significant pain and humiliation, and David Shannon awarded $10,000 in damages.

The Reconsideration Decision

The Tribunal recently released a reconsideration decision.

In the vast majority of cases, reconsideration decisions are heard by the same Tribunal member who decided the matter originally.  However, in this case, David Shannon has since left the Tribunal to accept a position as CEO of the Nova Scotia Human Rights Commission.  So this was decided by Vice-Chair Leslie Reaume.

The basis of the reconsideration request was essentially this:  When Mr. Britton was being restrained, there were several people involved, not all of whom were employed by GMC (i.e. paramedics and police).  The paramedic's 'taunting' and the police officer having thrown him to the ground are not obviously actions for which GMC is responsible.  Without finding some basis to conclude that GMC was responsible for their conduct, or some express statement in his reasons that he was only considering the conduct of GMC's employees, it appears from Mr. Shannon's reasons that he attributed liability to GMC based on their conduct as well.

The Vice-Chair agreed, and allowed the reconsideration request, remitting the matter for a new hearing before a new member.

My Thoughts on this Case

I think the reconsideration decision is questionable, quite frankly.

Mr. Shannon concluded that GMC had discriminated and/or failed in its duty to accommodate.  I'm not entirely sure if the reconsideration is attacking that conclusion, but my read of Mr. Shannon's reasons lead me to think that it's probably a fairly solid conclusion:  GMC's nursing and security staff significantly broke from the established practice of dealing with Mr. Britton long before the paramedic's taunt or the police threw him to the ground.  GMC's security staff physically restrained him first despite the fact that, according to Mr. Shannon's description of the video, he had given them no apparent reason to do so.  That makes it a battery, and when it's directly attributable to Mr. Britton's epilepsy, that makes it a Code violation.  Pretty academic.

On any standard of appellate review, and particularly on the HRTO's traditionally insurmountable standard for reconsideration, that finding would be resistant to being reversed.

If the reconsideration decision is concerned about damages only, that's more complicated, but ultimately should fall a similar way:  The employer argument would run that Mr. Britton's damages arose not as a result of GMC's mistreatment, but as a result of the mistreatment by the police and paramedics.

The trouble is that causation isn't that simple.  The Tribunal has the power to remedy any loss "arising out of" the infringement of rights.  The chain of causation here is pretty straightforward - if the employer hadn't responded inappropriately in the first place, none of the other mistreatment would have followed.

Perhaps the karate kick was an independent wrong, for which the paramedic might be separately responsible, but that didn't cause any of Mr. Britton's physical injuries, and when he was otherwise being restrained and thrown to the ground, is a relatively minor point.

Consider this question:  If he brought an action or application against the police, would they be liable?  The answer is "probably not".  They arrived on site, saw him struggling with a security guard who was physically restraining him, and acted in a manner which seemed reasonable under those circumstances.  Their actions were reasonably taken because of the circumstances created by GMC's staff.

In other words, I think Vice-Chair Reaume is taking too narrow a view on causation.

Perhaps more importantly, the reconsideration decision appears to have been granted on the basis of Rule 26.5(c) of the Tribunal's Rules, in that "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 public importance".  This was the basis of the reconsideration in Garrie, too.

While stating that the allocation of liability based on third party conduct (again, which I'm not sure is actually going on) is inconsistent with Tribunal jurisprudence, no case law is cited on the point, and there's no discussion whatsoever as to public importance, except to say that "the legitimacy of the Tribunal is related to its ability and willingness to undue [sic] an unfair result or process, or correct a wrong.  In this case, reconsideration will correct an unfair result, where the respondent finds itself responsible for the actions of third parties where there has been no determination that the relationship among them falls within section 46.3(1)."

In other words, Vice-Chair Reaume is saying "I think the Member made a mistake, so we'll reconsider it."  That marks a very stark departure from the prior jurisprudence on reconsideration, in which reconsideration requests were almost never granted.

My Thoughts on Reconsideration Generally

It's no coincidence that a reconsideration is granted here where it's a different adjudicator hearing the reconsideration request.  If Mr. Shannon heard the request, I seriously doubt he would have allowed the request - in some ways, the reconsideration decision reads as a "sufficiency of reasons" issue.

If the standard of review Vice-Chair Reaume applied to the case is even close to correct, then it is entirely inappropriate for adjudicators to sit in reconsideration over their own prior decisions.  It may be time for the Tribunal to revisit that practice, in any event:  If it truly is a matter of 'public importance' that the Tribunal be willing to correct its own mistakes, then it is reasonable that a reconsideration request should be made before a fresh set of eyes, so to speak.

In the judicial context, reconsideration is not usually sought, except for the most basic of errors - cases where, for example, one party's filings don't actually make it before the judge due to an administrative error, or where the judge makes an arithmetical error in calculating damages.  For more significant errors, the expected course of action is to appeal.  It looked like the Tribunal was taking a similar approach, correcting only the most basic of administrative and factual errors, and otherwise refusing to reconsider a case without being told to do so by a judge.  One can agree or disagree with that practice, but if the Tribunal is starting to seriously evaluate the factual and legal matters in issue in the reconsideration context, as in Garrie and Britton, then it should do so consistently.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

1 comment:

  1. I do not understand the legal basis of the reconsideration in this case. It is not clear.

    What is not clear as well from the description of events is whether or not the employee had an accommodation plan. At a company of GMC's size, I would have expected the people in human resources to have had one in writing. I continue to learn from reading your blog. Cheers!