HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kenny Goad
Applicant
-and-
1681078 Ontario Inc. o/a KFC/Taco Bell Cambridge
and Naveed Alam
Respondents
RECONSIDERATION DECISION
Adjudicator: Eric Whist
Indexed as: Goad v. 1681078 Ontario
1The respondents have filed a Request for a Reconsideration (the “Request”) of the Tribunal’s Decision dated April 14, 2010, 2010 HRTO 817, allowing, in part, the applicant’s Application.
2The respondents submit that the compensation the Tribunal ordered the respondents to pay the applicant for lost wages and loss of dignity, feelings and respect is unduly punitive and they ask the Tribunal to reassess the amounts ordered.
3On the issue of compensation for lost wages the respondents submit that the applicant did not lose any hours of work. The respondents provide a chart as part of their Request to show when they believed the applicant worked during the period in contention, namely March and April 2009. The respondents argue that the applicant did, in fact, work as scheduled except for a two week period when he was on vacation (March 18-31) and that, during the period March 4-17, he was paid for one shift but no more as he cancelled the remaining shifts. These shifts were then reassigned to other staff. The respondents provide one page of payroll information to support their position regarding the applicant’s hours of work.
4On the issue of compensation for loss of dignity and self respect the respondents submit that, as the applicant did not lose any hours or work, the award made by the Tribunal is high and disproportionate.
DECISION
5Under 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.
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 HRTO [Human Rights Tribunal of Ontario] are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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.
7In my view the respondents’ Request is an effort to appeal the Tribunal’s decision and repair deficiencies in the presentation of the respondents’ case. In my view the purported payroll records the respondents have submitted are evidence that was reasonably available to the respondents and as such could have been submitted as part of the hearing process. The respondents have provided no explanation for why this documentary evidence was not provided at the time of the hearing.
8The respondents’ further argue that the $1500.00 awarded to the applicant for loss of dignity, feelings and self respect is excessive. This argument is not compelling. As found in the Decision, the applicant had not been accommodated and had lost the opportunity to work because of the actions of the respondents. The respondents do not rely on any case law or any other argument as to why $1500.00 award may have been inappropriate compensation or why this matter raises issues of general or public importance.
9As I have not been satisfied that the respondents have met any of the requirements set out in Rule 26 of the Tribunal’s Rules their Request for Reconsideration is denied
Dated at Toronto, this 24th day of August, 2010.
“signed by”
Eric Whist
Vice-chair