Human Rights Tribunal of Ontario
Between:
Abbas Shroff Applicant
-and-
Tipco Inc., John Ferrone, Satesh Shiwkaran and Rosemary Riina Respondents
Reconsideration Decision
Adjudicator: David Muir Date: October 13, 2009 Citation: 2009 HRTO 1660 Indexed as: Shroff v. Tipco
1This is an Application filed on September 30, 2008, under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant alleges he experienced discrimination in employment on the basis of his ancestry, creed, disability, ethnic origin, marital status, place of origin and sex.
2The Case Resolution Conference was held in Toronto on June 25, 2009. On August 13, 2009, the Case Resolution Conference Decision, 2009 HRTO 1405, was issued upholding the Application in part.
3I determined that, although the applicant's Code rights were violated by the personal respondent Mr. Shiwkaran, the conduct did not create a poisoned work environment and that there was no evidence that the respondent employer had been made aware of the allegations respecting Mr. Shiwkaran. I also concluded, however, that the respondent employer was responsible for Mr. Shiwkaran's conduct.
4On September 27, 2009, the applicant filed a request for reconsideration of the Decision under section 45.7 of the Code, which states:
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.
5Rule 25 of the Tribunal's Rules of Procedure for Transitional Applications provides any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision. Rule 25.5 provides:
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.
6The applicant has made submissions that potentially bear on three of the factors set out in the Rule:
- there are new facts that could potentially be determinative of the case and could not reasonably have been obtained earlier;
- two former employees have now come forward and are prepared to give evidence in support of the applicant. The applicant also states that he has medical evidence to offer, in addition to the documentary evidence tendered at the hearing, that will support his claim that the treatment at work contributed to his decision to leave the workplace;
- the procedure followed in this hearing was in conflict with established Tribunal procedure in that I did not bifurcate the proceeding, hearing evidence and argument on liability and then going on to consider remedies if liability is established; and,
- reconsideration is necessary to send a clear message to the respondents that there is a price to be paid for violation of the Code.
7The bifurcation of a hearing is not done as a matter of course although the Tribunal retains discretion to bifurcate in an appropriate case. This hearing was not bifurcated. There was no request to bifurcate. I am satisfied that the procedure followed in this case was not in conflict with established Tribunal procedure.
8The new facts and evidence could potentially be determinative of at least some of the issues in the case. However, there is no indication from the applicant why this evidence was not presented at the hearing. I am not satisfied that this evidence could not reasonably have been available and presented at the hearing.
9With respect to the last point I am not satisfied this consideration outweighs the significant public interest in the finality of Tribunal decision making.
10The Request for reconsideration is dismissed.
Dated at Toronto, this 13^th^ day of October, 2009.
"Signed by"
__________________________________
David Muir Vice-chair