Caren Kim v. Meet Market Adventures and Trevor Hartley, 2009 HRTO 1953

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Caren Kim

Applicant

-and-

Meet Market Adventures and Trevor Hartley

Respondents

RECONSIDERATION DECISION

Adjudicator: Eric Whist

Date: November 17, 2009

Citation: 2009 HRTO 1953

Indexed as: Kim v. Meet Market Adventures

1The applicant filed a Request for a Reconsideration (the “Request”) which requests reconsideration of the Tribunal’s Decision dated October 7, 2009, 2009 HRTO 1623, dismissing her Application.

2Under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (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 of Procedure. The most relevant Tribunal Rule in this case is Rule 26 of the Rules of Procedure for Applications under part IV of the Code 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.

3The applicant specifically indicates that her Request is based on the factors identified in Rule 26.5(c) and (d) but I note that she has also provided new documentary evidence. I have considered this material in relation to Rule 26.5(a).

4The applicant states in her Request that the personal respondent and Sam Gruszek, the respondents’ other witness, lied under oath about the applicant’s past dealings with the respondents and that I gave undue weight to this misleading testimony. The applicant argues that part of Mr. Gruszek’s testimony was hearsay and should not have been considered by me. The applicant also contends that I should not have allowed Mr. Gruszek to even testify because he was not properly identified as a witness in a timely fashion as required by the Tribunal’s Rules of Procedure.

5To support her contentions the applicant identifies what she believes are inconsistencies in the testimony of the personal respondent and Mr. Gruszek and the nature of the hearsay evidence. She argues that there is little documentary evidence in favour of the personal respondent and Mr. Gruszek’s allegations about her behavior and that I did not give proper weight to her documentary evidence. The applicant also provides new documents consisting of an e-mail from a church minister attesting to her good character and an e-mail from a person stating that he was unaware of the applicant having made unflattering comments about the respondents (as was alleged by the personal respondent).

Decision

6The Tribunal has issued a Practice Direction on Reconsideration (Practice Direction) to provide guidance on how the Tribunal exercises its reconsideration powers. The Practice Direction states, in part, that:

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.

7The applicant’s Request is, in many ways, an effort to appeal my decision. It is essentially based on an argument that I have made an errors in law and errors in considering and weighing the evidence before me that undermine the integrity of my decision. The applicant believes I have mistakenly considered hearsay evidence, and have inappropriately preferred the evidence of the respondent and his witness to hers. However, as stated in the Tribunal’s Practice Direction, Reconsideration is not an appeal or an opportunity to re-argue a case. The issues raised by the applicant challenging the merits of my decision are not compelling or extraordinary. They do not raise issues of general or public interest nor outweigh the public interest in the finality of Tribunal decisions. The applicant has provided some new evidence but there is nothing to indicate that it could not have been reasonably provided earlier or that it is potentially determinative. The applicant’s Request is denied.

8I do not intend to respond in detail to those aspects of the applicant’s Request that constitute an effort to re-argue her case or appeal certain of my findings. The applicant does not raise issues of general or public importance.

9I will simply note that I did hear oral submissions from the parties as to whether Mr. Gruszek should be allowed to testify and following these submissions I ruled, as Rule 17.4 permits me to do, that he could testify.

10It is also true that some of Mr. Gruszek’s testimony was hearsay. However, there is nothing improper with me considering this evidence in light of the Tribunal’s authority to accept hearsay evidence (see, for example, Cugliari v. Telefficiency Corp., 2006 HRTO 7; Tilberg v. McKenzie Forest Products Inc., 2002 CanLII 46501). I weighed the evidence before me and generally preferred the evidence provided by the personal respondent and Mr. Gruszek to the applicant’s. The applicant’s bald assertion that the personal respondent and Mr. Gruszek lied and that I should not have preferred their undocumented evidence is an effort to re-argue the case and not a basis for a reconsideration. Similarly, the applicant’s contention that I did not properly consider the significance of her evidence regarding the person who made comments she found to be racially insensitive is simply an effort to re-argue the case and not a basis for me to reconsider my decision.

11The applicant provided two new documents. One is an undated letter from a church minister who attests to knowing the applicant for twenty years and knowing her to be a person of integrity and good character. This is character evidence and if it had been disclosed prior to the hearing (there is no indication that it could not have been) I would not have accepted it into evidence. I give this letter no weight in my reconsideration.

12The second document is an e-mail dated November 3, 2009 from a person the applicant knows stating that he does not recall the applicant having said anything unflattering about the corporate respondent. Again, there is no indication from the applicant as to why this evidence could not have been provided at the hearing. However, even if I was to accept this as new evidence for the purposes of considering the applicant’s Request it does not constitute evidence that would be determinative. The issue of whether the applicant did say unflattering things about the respondents is an important factor in the case. However, this e-mail, from a person who does not indicate that he was present at all times the applicant attended an event organized by the corporate respondent, does not lead me to conclude that the applicant did not make any unflattering comments.

13I do note that the applicant provided a number of other documents with her Request, namely e-mails she exchanged with the personal respondent. The applicant tried to argue these e-mails demonstrated the abrupt, uncalled for and discriminatory actions of the respondents. However, these e-mails were already before me and considered (along with the applicant’s arguments as to their significance), as part of the hearing process. They do not constitute new evidence.

14For all of the above stated reasons the applicant’s Request for reconsideration is denied.

15During the period the applicant was communicating with the Tribunal about her Request for reconsideration the applicant also indicated (in an e-mail to the Tribunal dated November 6, 2009) that she would like the option of having my October 7, 2009 Decision dismissing her Application anonymized.

16I am not prepared to accommodate this request. The applicant has provided no arguments as to why she might wish to have the Decision anonymized. The applicant in signing her Application made a declaration that “I understand that information about my Application can become public at a hearing, in a written decision , or in other ways determined by Tribunal policies” and presumably she understood this to be the case as the Application also clearly states “Do not sign your Application until you are sure you understand what you are declaring here”. The applicant knew or ought to have known about the essentially public nature of the Tribunal’s process.

17The applicant did not, at any time prior to or during the hearing, request anonymization or raise issues related to the need to keep certain personal or other information confidential or private. A request to now ask that I anonymize a decision that has already been released (and one in which I did not find that the applicant had been the victim of discriminatory treatment) is inappropriately late in the Tribunal’s process. However, even if the applicant had made a more appropriately timely request I do not see on what basis it might have been granted.

18The Tribunal’s Rules state that:

3.10 The Tribunal’s hearings are open to the public, except when the Tribunal determines otherwise.

3.11 The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so

3.12 All written decisions of the Tribunal are available to the public.

19The Tribunal’s practice has been to consider any request to close a hearing to the public, or to keep the name of a party or other information confidential as an exception to the general principle that the Tribunal’s process should be open and transparent in accordance with the province’s legal system. See TA v. 60 Montclair, 2009 HRTO 369; S. and C. v. Toronto Police Services Board, 2008 HRTO 437.

20The Tribunal has allowed for the anonymization of applicant’s identities in its written decisions in exceptional circumstances involving extremely private medical and/or other personal information. Such a partial publication ban has been ordered in cases dealing with sexual harassment, sexual orientation, AIDS, and gender identity as well as some (but certainly not all) cases involving minors. See August v. Richland Marketing Inc., 2003 HRTO 25.

21The applicant’s allegations centre on why her membership in a singles organization may have been revoked. The applicant may feel that her complaints about the respondents involve issues of a personal and sensitive nature but having heard the evidence I do not see how they can be said to meet the high threshold of involving extremely private personal information or overcome the expectation that matters before the Tribunal proceed in a manner that is both public and transparent. The request for anonymization of the Decision is denied.