Aubrey Armstrong v. Anna’s Hair & Spa Inc., 2010 HRTO 2328

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aubrey Armstrong Applicant

-and-

Anna’s Hair & Spa Inc. Respondent

RECONSIDERATION DECISION

Adjudicator: Ken Bhattacharjee Date: November 23, 2010 Citation: 2010 HRTO 2328 Indexed as: Armstrong v. Anna’s Hair & Spa

WRITTEN SUBMISSIONS BY

Anna’s Hair & Spa Inc., Respondent ) Anna Das, Representative

INTRODUCTION

1The purpose of this Decision is to address the respondent’s Request for Reconsideration of the Tribunal’s Decision, 2010 HRTO 1751, which upheld the Application.

BACKGROUND

2The applicant, who self-identifies as an African Canadian man, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 8, 2008, which alleged that the respondent discriminated against him with respect to services because of his race, colour and ethnic origin.

3The respondent filed a Response on April 14, 2009, which denied the allegation of discrimination. The Response named Mr. Ashok Das as the person within the organization respondent who was authorized to negotiate and bind the organization with respect to the Application. In section 18 of the Response (Witnesses), the respondent did not list any witnesses.

4On September 11, 2009, the Tribunal issued a Confirmation of Hearing Notice to the parties, which informed them that the hearing was scheduled for December 11, 2009.

5The Notice also set out the Tribunal’s Rules of Procedure with respect to disclosure of witnesses. Rule 17 requires each party to deliver to every other party and file with the Tribunal a witness list with a summary of the expected evidence of each witness by no later than 45 days prior to the first scheduled day of hearing.

6The respondent did not file a witness list prior to the hearing, and only Mr. Das appeared at the hearing and testified on behalf of the respondent. Mr. Das also tendered as evidence a letter from the Vice President of Marketing of the marketing company that sold the applicant’s fiancée two pre-paid promotional packages to use at the salon. When asked why he did not call the respondent’s hair stylist as a witness, Mr. Das responded that she did not attend because she was working at the salon.

7On August 25, 2010, the Tribunal issued its Decision upholding the Application. Specifically, the Tribunal decided that the applicant proved on a balance of probabilities that the respondent denied him hair services in part because of his race, colour and ethnic origin. As part of its reasoning, the Tribunal drew an adverse inference from the fact that the respondent failed to call a witness (the hair stylist) who had material and direct knowledge of the disputed facts. The Tribunal also made various orders to remedy the discrimination.

8On September 27, 2010, Ms. Anna Das, who is the owner and hair stylist of the respondent, filed a Request for Reconsideration of the Tribunal’s Decision.

9On October 6, 2010, the applicant filed a Response to the respondent’s Request. The applicant’s filing was contrary to Rule 26.4 of the Tribunal’s Rules of Procedure, which provides that a party who has been served with a Request for Reconsideration need not file a Response with the Tribunal unless the Tribunal directs that a Response is required. In the case at hand, the Tribunal decided that a Response was not required, and did not direct the applicant to file one. Accordingly, I have not considered the applicant’s Response in making this Reconsideration Decision.

RELEVANT LAW AND RULE ON RECONSIDERATION

10Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final Decision in accordance with the Tribunal’s Rules.

11Rule 26.5 of the Tribunal’s Rules states that 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.

REQUEST FOR RECONSIDERATION

12In the Request for Reconsideration, the respondent submitted that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5 (a).

13In the reasons in support of the Request, Ms. Das stated that the Tribunal’s Decision was unfair because the Tribunal did not have all of the facts of the case before it. She stated that she was unable to attend the hearing because her son was very ill and she had to take care of him, and that if she had attended, she would have testified about her interactions with the applicant. She then set out what she would have said if she had testified.

14The respondent’s Request is denied. In my view, the Request does not set out new facts or evidence that could not reasonably have been obtained earlier. I do not accept Ms. Das’s submission that she was unable to attend the hearing because her son was ill and she had to take care of him for the following reasons. First, the respondent did not name Ms. Das as a witness in its Response to the Application, and did not file a witness list with Ms. Das’s name and a summary of her expected evidence prior to the hearing. Second, Mr. Das gave evidence under oath at the hearing that Ms. Das did not attend the hearing for a totally different reason (she was working at the salon). Third, Mr. Das tendered as evidence at the hearing a letter from the Vice President of Marketing of the marketing company, but did not tender any such letter from Ms. Das.

15In my view, the respondent had no intention of calling Ms. Das as a witness at the hearing, and this Request is essentially an attempt to relitigate the case because the respondent is unhappy with the Decision.

16Furthermore, in my view, even if the Tribunal had not drawn an adverse inference from the fact that the respondent failed to call Ms. Das as a witness at the hearing, based on the totality of the evidence, it still would have upheld the Application.

ORDER

17The Request for Reconsideration is dismissed.