Robert Munn v. Crocs Canada Inc., 2010 HRTO 1216

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Munn

Applicant

-and-

Crocs Canada Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: May 31, 2010

Citation: 2010 HRTO 1216

Indexed as: Munn v. Crocs Canada

INTRODUCTION

1On March 4, 2010, the Tribunal issued a Decision, 2010 HRTO 494, in which it dismissed this Application on the basis that to allow the Application to proceed would constitute an abuse of process. On April 29, 2010, the Applicant filed a Request for Reconsideration of that Decision.

2A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondent.

BACKGROUND

3Robert Munn filed an Application on February 18, 2009, 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. He alleged that he had been discriminated against on the basis of age.

4The respondent sought early dismissal of the Application on the basis that the applicant had signed a full and final release regarding the subject matter of the Application. It argued that to allow the Application to proceed would constitute an abuse of process. The applicant acknowledged signing the release but argued that he was under duress and that he should be permitted to proceed with his Application.

5Further to an Interim Decision, 2009 HRTO 1420, a hearing took place to hear evidence on the preliminary issue and a Decision was issued which found that the applicant had been offered and had accepted a severance package that contained a release that had been signed after the applicant had obtained independent legal advice. The Tribunal held that the concerns described by the applicant did not amount to duress and that it would constitute an abuse of the Tribunal’s process to allow the Application to proceed.

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.

9Rule 26.1 provides that:

Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days from the date of the decision.

10The Request for Reconsideration has been filed past the deadline for doing so without any explanation for the delay.

11In his Request, the applicant has checked the boxes indicating that the reasons for his Request are that there are new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier and that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

12In support of his Request, the applicant states that he was not aware that he required legal representation, that his wife was not allowed to stay in the room, that he did not have 8 days to consider the severance package and that he became confused about dates because he did not have access to certain files.

13A Request for Reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. The applicant has made no submissions that establish that identified grounds for reconsideration apply or, indeed, any of the criteria outlined in Rule 26.

14The thrust of his submissions reiterate arguments made earlier in the process that were not borne out by the evidence. With respect to the points raised by the applicant in the Request, the applicant had the opportunity to seek legal counsel before the hearing if he chose to do so but was entitled to appear without counsel, as do many other parties before the Tribunal. The applicant’s wife was excluded because the applicant indicated she was a potential witness. Finally, the Tribunal made a finding that the applicant had 8 days to consider the respondent’s offer based on the evidence presented and there are no reasons to revisit that finding.

15It is evident that the applicant disagrees with the Tribunal’s findings. However, he has presented no basis to reconsider the decision.

12The Request for Reconsideration is denied.