Robert Burns v. Employer’s Choice Staffing of Canada Ltd., 2009 HRTO 1779

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Burns Applicant

-and-

Employer’s Choice Staffing of Canada Ltd. Respondent

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta Date: October 27, 2009 Citation: 2009 HRTO 1779 Indexed as: Burns v. Employer’s Choice Staffing of Canada

INTRODUCTION

1On August 13, 2009, the Tribunal issued a Decision in which it granted the Application in part and made an order for monetary compensation to the applicant, 2009 HRTO 1255. On September 15, 2009, the Applicant filed a Request for Reconsideration of that Decision and submissions in support of his Request.

2No response is required to a Request for Reconsideration unless the Tribunal directs that one be made. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondent.

BACKGROUND

3Robert Burns filed an Application on July 17, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), arising out of his former employment with the respondent which ended in December, 2005. He alleged that he was subjected to harassment and discrimination on the basis of disability and sex during part of the time he worked for the respondent.

4Following a hearing into this matter that was not attended by the respondent, the Tribunal found that inconsistencies in the applicant’s evidence cast into doubt his allegation of discrimination and harassment on the basis of sex. There was a finding that the applicant had been subjected to differential treatment on the basis of disability and an award for monetary compensation was made.

5The applicant seeks to have the amount of the award changed. He argues that the Tribunal misapprehended the degree of threats and abuse he experienced. He also suggests that inconsistencies in his evidence were attributable to the fact that he was nervous, stressed and medicated during the hearing and that questions asked during the hearing by the adjudicator put her in an adversarial position. The applicant seeks a rehearing by a different member.

6This is the Tribunal’s decision on the Request for Reconsideration.

REQUEST FOR RECONSIDERATION

7Section 45.7 of the Code, allows any party to a proceeding before the Tribunal to request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.

8It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which states in part:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

9In his Request the applicant asserts that “the decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance”. However, he has made no submissions that bear on the identified ground for reconsideration or, indeed, on any of the criteria outlined in either Rule 26 or the Practice Direction on Reconsideration.

10The applicant argues that he was nervous during the hearing and that his stress and medication caused minor “discrepencies” in his oral testimony. However, as the Decision articulates, the inconsistencies that led to a finding that his allegations concerning discrimination and harassment on the basis of sex were unfounded were contained in the documentary evidence submitted by him and that he was provided an opportunity to explain these discrepancies during the hearing.

11A Request for Reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. It is evident that the applicant disagrees with the Tribunal’s finding with respect to the remedy appropriate in the circumstances. However, he has presented no basis to reconsider the Decision.

12The Request for Reconsideration is denied.