Dubé v. CTS Canadian Career College, 2010 HRTO 1694

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ritchy Dubé

Applicant

-and-

CTS Canadian Career College Inc. and Barbara Thibodeau

Respondents

reconsideration DECISION

Adjudicator: Faisal Bhabha

Date: August 16, 2010

Citation: 2010 HRTO 1694

Indexed as: Dubé v. CTS Canadian Career College

written submissions by

Ritchy Dubé, Applicant ) On his own behalf

CTS Canadian Career College Inc., ) David Camelleti, Counsel

Respondent )

BACKGROUND

1The applicant filed an Application alleging violations of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). On March 31, 2010, the Tribunal issued a Decision, 2010 HRTO 713 (the “Decision”), finding that the applicant suffered discrimination when the corporate respondent denied him employment on the basis of his record of offences.

2On April 28, 2010, the corporate respondent filed a Form 20 requesting Reconsideration. The Tribunal sought the applicant’s submissions in response to the Request. In submissions filed on June 3, 2010, the applicant opposes Reconsideration.

REQUEST FOR RECONSIDERATION

3Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request 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.

4It 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.

POSITION OF THE PARTIES

5The corporate respondent submits that the remedial portion of the Decision addressing lost wages is in conflict with the established jurisprudence and involves a matter of general and public importance. In particular, the respondent argues that the Tribunal incorrectly applied the principles of the law of mitigation and made an error in applying the law of mitigation to the facts of this case. Counsel argues that the question is of public importance because the manner in which the Tribunal

stated and applied the law of mitigation of damages has ended in a result that completely eradicates the need for any complainant to have to show that he or she has made any effort to look for alternate work or employment, and/or curtail his or her losses.

6In support of its position, the respondent relies on the factual finding that the applicant “stopped looking for work for some time after the events of May 2008” and that “there was no medical or other evidence to show why the Applicant was not able to look for work.” The respondent further relies on the fact that “there was no evidence of any job search or efforts to reduce income” and that “the Applicant actually quit a paying job” subsequent to being denied employment with the respondent.

7The respondent goes on to summarize evidence that came out of the hearing that is not specifically referenced in the Decision, such as the documentary and oral evidence of respondent witnesses about employers in the area engaged in drug and alcohol addiction services. Counsel further notes that the “Applicant in his cross-examination admitted that he had at best applied to a couple of these institutions.” The respondent submits that the Decision fails to specifically address whether the applicant satisfied the duty to mitigate.

8The applicant opposes the Reconsideration Request on the basis that, but for the respondent’s actions, he would have had income earnings for the relevant period of time. He further argues that the quantum of wage loss damages is less than what he could have earned with the respondent, because the Tribunal did not factor into the calculation additional income earning opportunities the applicant claims he would have had with the respondent.

9Regarding the duty to mitigate, the applicant points to evidence that he not only applied for “many jobs” and “did [his] best under the circumstances”, but also that he registered in an educational training program with a view to obtaining credentials to assist in securing employment. He argues that obtaining education is a form of mitigation.

10In his submissions, the applicant also asks the Tribunal to make additional findings and orders against the respondent and its counsel. This is not the appropriate occasion or forum in which to make such requests. As such, the applicant’s requests will not be addressed in this Decision.

DECISION

11Respondent’s counsel correctly notes that it is a long-standing tenet of employment law, including human rights law, that there is a positive obligation on persons making a claim for lost wages to mitigate their losses. Counsel also acknowledges that the Decision endorses this doctrine, at paragraph 78, which states: “The right to lost wages is limited by the duty to mitigate… the applicant has a duty to minimize his financial losses by seeking alternative employment”.

12It is therefore clear that, in terms of the application of legal principles to the facts of this case, the respondent does not appear to take the position that the wrong principles were considered. Rather, the respondent takes issue with how the Tribunal considered the facts of this case in the light of the relevant principles. As such, the Request amounts to an assertion that the evidence did not support the conclusion reached, rather than a disagreement with the principles applied.

13Reconsideration is not an opportunity to appeal the outcome of a final Decision. As set out in the Tribunal’s Practice Direction referred to above, the Tribunal will generally 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.

14As stated in a case cited in the respondent’s submissions, Adams v. Knoll North America, 2010 HRTO 376 at paragraph 16:

The applicant is entitled to be compensated only for those losses that could not have been avoided and the respondent has the onus of proving the applicant’s failure to mitigate. See Heintz v. Christian Horizons, 2008 HRTO 22, at para. 265; A. v. Ruby’s Foods Services Ltd. (1992), 1992 CanLII 14245 (ON HRT), 16 C.H.R.R. D/394, at para. 45 (Ont. Bd. Inq.).

15As the respondent states, there was evidence on cross-examination related to the issue of mitigation. The Tribunal considered all of the evidence but found it unnecessary to refer to it all in the Decision. What was clear from the evidence as a whole is that the applicant did not remain idle after being denied employment with the respondent. He made efforts to find suitable employment while at the same time dealing with feelings of frustration, despair and humiliation as a result of the respondent’s discriminatory hiring decision.

16The respondent put to the applicant on cross-examination a list of substance abuse facilities that had hired CTS Addictions Counsellor graduates in the past, and questioned whether he had applied for any positions with those organizations. The applicant’s evidence was that he had applied to “a few” and had at least one interview.

17The respondent’s list was unhelpful in providing a picture of the availability of work in the applicant’s field. There was no basis to assume that any or all of the listed organizations were offering employment at the relevant time, and there was no suggestion that the applicant had refused employment. Again, what was clear was that the applicant had not remained idle and had made some efforts to find work.

18The respondent argued that because the applicant quit a “paying job” he had failed to mitigate his losses. This issue was dealt with in the Decision, where I found at para. 82:

It is irrelevant whether he was or may have been earning additional part-time wages elsewhere, or indeed the fact that he quit his job at the March of Dimes, which included no guarantee of hours and was on an “as needed” basis.

The applicant was awarded monetary damages for lost wages representing 25 hours of part-time work a week. His work with the March of Dimes would not have impacted those hours whether he continued working or not.

19In the Decision, I found that the applicant “did not actively look for work for some time”, but that does not refer to the entire nine-month period for which lost wages are awarded. Quite the opposite, the evidence confirms the applicant did look for work and secured at least one job interview. He also continued with his volunteering efforts, including public speaking, writing and counselling, as well as improving his education and training, in the hope that it would increase the likelihood of obtaining paid work.

20Furthermore, the applicant’s evidence was that, emotionally, he “bottomed out” as a result of the respondent’s discriminatory treatment. While he was not idle, he was not always consistent in his job search. The question for the Tribunal is whether the respondent has established that the applicant’s efforts were not reasonable. Boards and Tribunals have recognized that the experience of discrimination can affect victims’ ability to seek alternative employment, or otherwise mitigate their losses: see Almeida v. Chubb Fire Security Division (1984), 1984 CanLII 5036 (ON HRT), 5 C.H.R.R. D/2104 (Ont. Bd. Inq.). The evidence summarized in the Decision makes clear my finding that the applicant was both distraught by the discrimination, and developed serious and understandable doubts that he would ever be able to emerge from the shadow of his past. While these factors did not relieve him of the duty to mitigate, they inform the analysis of what is reasonable in the circumstances.

21The respondent’s concerns about the potentially wide impact of this Decision on the duty to mitigate wage losses are overstated. The Decision does not stand for the proposition that a victim of discrimination has no duty to mitigate. The Decision affirms the duty. However, the analysis is fact-driven and contextual. The question of what was reasonable in the circumstances is one which must be determined on a case-by-case basis.

22As stated in the Decision, the evidence was that the applicant found full-time alternative employment within 11 months of the incident. The wage loss damages represented part-time wages for 39 weeks, or about nine months. Given the relevant factual findings, again, it is implicit in the Decision that this was a reasonable period of time for finding alternative employment in the circumstances.

23In light of this, I do not find the respondent has shown that the Decision was erroneous or inconsistent with established jurisprudence. The respondent had the opportunity to fully canvass the mitigation evidence and make relevant arguments. The Decision considered the duty to mitigate in the light of the evidence and the parties’ arguments, and the Tribunal reached a conclusion that the respondent failed to show that the applicant’s mitigation efforts were insufficient. To the extent that the respondent disputes this conclusion, that is not a matter to be addressed through Reconsideration.

24The Reconsideration Request is denied.