Tofflemire v. Metro (Windsor) Enterprises, 2009 HRTO 1935

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harry Tofflemire

Applicant

-and-

Metro (Windsor) Enterprises Inc. and Ryan Soulliere

Respondents

RECONSIDERATION DECISION

Adjudicator: Eric Whist

Date: November 12, 2009

Citation: 2009 HRTO 1935

Indexed as: Tofflemire v. Metro (Windsor) Enterprises

1This is a Request for a Reconsideration (the “Request”), filed by the applicant, in respect of a Decision dated September 14, 2009, 2009 HRTO 1471. In this Decision I concluded that the respondents had contravened section 5 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), when they failed to provide the applicant with reasonable accommodation. As a consequence I made the following Order:

1. Within 30 days of the date of this Decision, the respondents shall pay the applicant $7,500 as compensation for injury to dignity, feelings and self-respect and lost wages for the temporary summer position. The amount for lost wages will be the difference between the wages the applicant would have received in the temporary summer position beginning August 18, 2008 and the benefits the applicant received during this period.

2. Pre-judgment interest is payable on the award for wage loss from the date of the Application to the date of this decision in accordance with the Courts of Justice Act. Post-judgment interest is payable on all amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.

3. Within 30 days of the date of this Decision the respondents shall resolve the applicant’s employment status with Metro and provide, if required, entitlements under the ESA.

2The applicant requests that the Tribunal reconsider subparagraph 1 and 3 of the Order. With respect to subparagraph 1, the applicant argues that the Tribunal should not have ordered that the benefits received by the applicant be deducted from the employer’s calculation of lost wages. The applicant argues that this decision is in conflict with a line of human rights jurisprudence regarding special damages: that human rights awards only deduct wages earned from another job, not benefits, when determining what an applicant would have earned had discrimination not occurred. Benefits such as those received by the applicant in this matter (Employment Insurance sick benefits and Canada Pension-Disability) are collateral benefits which are irrelevant to the dispute between the parties. Any repayment of benefit obligations that are owed to the respective benefits providers are governed by their statutory schemes and the repayment of these benefits should not be decided as part of an award for lost wages.

3The applicant argues that this is in conflict with established jurisprudence or Tribunal procedure and that it is a matter of general or public importance that it be reconsidered.

4With respect to subparagraph 3, the applicant states that respondents have made the applicant two offers of employment, one of which the applicant is planning to accept. The applicant argues that these offered positions might have actually been available during the summer of 2008, the period of time the applicant alleged in his Application the respondents failed to provide him with reasonable accommodation. The applicant argues that if these positions were available in 2008 and not offered to the applicant by the respondent, the Tribunal might wish to reassess the respondents’ actions and reconsider its remedies.

5The applicant argues that the two new offered jobs constitute new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

6Under section 45.7 of the Code the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The most relevant Tribunal Rule is Rule 26 which reads, in part, as follows:

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 and orders.

7I have determined that it is appropriate to receive submissions from the respondents with respect to the applicant’s Request. As such the respondents shall deliver to the applicant and file with the Tribunal their submissions on or before December 6, 2009. The applicant will have a further right of reply. The applicant’s reply will be delivered to the respondent and filed with the Tribunal on or before December 20, 2009.