Cunningham v. Bims Car Wash, 2023 AHRC 25 (Oshionebo) is a recent decision from the Alberta Human Rights Tribunal denying an application for reconsideration based on new evidence and for delay in bringing the application under Section 33 of the Act. This case provides a helpful analysis of the Tribunal’s lack of discretion to give extensions to limitations and the evidence needed to be successful in an application for reconsideration.
Facts
The following are the pertinent facts summarized by the Alberta Human Rights Tribunal:
- On December 1, 2022, the Tribunal found that Bims Carwash (“Bims”) had discriminated against the Complainant in goods and services on the grounds of race, colour, ancestry, place of origin, and gender (the “Decision”).
- Bims applied for reconsideration pursuant to Section 33 on January 16, 2023 (approximately 46 days after the Decision). Section 33(2) of the Act states that the Tribunal “may not reconsider a matter … more than 30 days after the date of the decision.” Bims requested reconsideration of the Decision on two grounds:
(1) There was new evidence available that was not available at the time of the Decision, and that there was a good reason why Bims did not present the evidence first instance; and
(2) Bims was not given adequate notice, which was the explanation for the delay applying for reconsideration.
- The Director of the Commission opposed the reconsideration application.
Analysis / Conclusion
Section 33(1) and (2) of the Act set out the relevant considerations for reconsideration applications:
33(1) If there is new evidence available that was not available or that for good reason was not presented before the human rights tribunal in the first instance, the tribunal may, on the application of any of the parties or on its own motion, reconsider any matter considered by it and for that purpose has the same power and authority and is subject to the same duties as it had and was subject to in the first instance.
(2) A human rights tribunal may not reconsider a matter under subsection (1) more than 30 days after the date of the decision on the matter in the first instance
Bims Argued that the holiday season, delay in receiving mail, and difficulties retaining legal counsel attributed to the delayed application. As a result, the 30-day time limit was significantly onerous and imposing it would result in procedural unfairness.
The Tribunal sided with the Director’s Argument (Respondent to this application). Relying on recent human rights jurisprudence, the Tribunal affirmed that the wording of the Act does not bestow discretion on the Tribunal to agree to extensions. As such, the Tribunal cannot “re-write the legislation” by importing discretion where the Legislature has granted none.
The Tribunal proceeded to analyze the merits of the reconsideration application despite finding that the application was out of time. Bims argued that it had new evidence in the form of three affidavits that was not available at the time of the Decision, which would have a material effect on the outcome. The Affidavits were as follows:
- Affidavit of Donald Cox – the individual who was found to have discriminated against the Complainant in the Decision;
- Affidavit of Katija Sware – One of Bims employees; and
- Affidavit of Joey Starko – a further witness
The AHRT again sided with the Director’s argument. The evidence proposed by Bims would have been available at the time of the hearing. Further, Bims had not demonstrated “good reason” for why it did not present the affidavits at first instance. The Tribunal cited the following remarks from the previous decision of McCharles v. Jaco Line Contractors, which demonstrates the high burden that a party must discharge to be successful in an application for reconsideration:
Section 33 is rarely used and is intended to ensure that a Tribunal has received the best information possible in making its decision, even when such information was not available at the time of rendering a decision. In this case, the respondent bears the burden of proof to establish that the new evidence was either not available or that there was a good reason for not presenting it in the first instance. The threshold for reconsideration is high. Reconsideration is “not an appeal of a decision, nor is it an opportunity to argue why a decision is incorrect.” Neither is reconsideration available for the respondent to attempt correction of deficiencies in its case.
My Take
Bims failed to demonstrate why the Affidavits were not available at first instance. The Tribunal’s decision implies that the mere fact that the affidavits themselves didn’t exist at the time of the Decision is not enough to satisfy the burden under Section 33. In this case, the evidence of the three individuals likely could have been obtained by Bims – if they couldn’t have, Bims failed to demonstrate why that was the case.
The analysis of the 30-day time limit is also instructive. The Tribunal’s decision signals that the time limits imposed under the Act do not provide for any level of deviation, even if the delay may be able to be explained by unfortunate circumstances.
Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
Michael Hernandez is an employment lawyer at Bow River Law. He is a knowledgeable and skilled lawyer, handling employment law, human rights (discrimination) and labour law matters. Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.
