HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sheldon Bennett

Applicant

-and-

Protrans Personnel Service Inc., Benigna Tomaylla, Jennifer Venart and Rita Sato

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart Date: February 8, 2010 Citation: 2010 HRTO 280 Indexed as: Bennett v. Protrans Personnel Service

[1] This Decision addresses a Request for reconsideration by the applicant in relation to the Tribunal’s Decision dated October 21, 2009 dismissing the Application: [2009 HRTO 1737](https://www.minicounsel.ca/hrto/2009/1737).

[2] On November 16, 2009, the applicant filed a Request for reconsideration of the Tribunal’s Decision. The applicant states that he was not afforded his full 30 days to file his Request for reconsideration, as he did not receive the Decision until November 13, 2009 and the Decision was date-stamped November 10, 2009. From a review of the Tribunal’s file, the Decision was sent to the applicant by courier on October 21, 2009, but the courier company was unable to deliver the package. The package was returned to the Tribunal on November 9, 2009 and sent out by regular mail the following day.

[3] The applicant’s Request for reconsideration was acknowledged by the Tribunal by letter dated November 25, 2009 and the applicant now has had over two months to file any additional material in support of his Request for reconsideration, but has not done so. Accordingly, I will decide the applicant’s Request on the basis of the material filed to date.

[4] Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”) provides as follows:

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

5Under section 45.7 of 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. The Tribunal has issued rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008).

6The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

7As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

[8] In [Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34](https://www.minicounsel.ca/hrto/2008/34), the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

[9] The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 25.5 of the Rules provides:

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.

[10] As a result, I need to determine whether the material filed by the applicant in support of his request for reconsideration satisfies any of the criteria set out in Rule 25.5. In the instant case, the applicant relies upon Rule 25.5(a) and (c).

[11] With regard to the criterion in Rule 25.5(a), the applicant does not put forward any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. Rather, the applicant re-argues his case based upon evidence that was already presented at the hearing on August 10 and 11, 2009. I will briefly address the main points raised by the applicant in this regard.

[12] The applicant refers to the tapes of the security area in relation to the incident on May 8, 2007 and alleges that the respondents tampered with evidence and/or withheld evidence from the Tribunal. There is no evidence to support this allegation. The respondents initially produced only one video clip showing the last stages of this incident, which was from a camera with audio that was set up on the security desk. During the course of the hearing, it became apparent that there was another longer clip without audio from a camera mounted in the security area. For the purpose of production, the clips were copied onto a DVD that was produced to the applicant and filed with the Tribunal. There was considerable confusion amongst the respondents and their counsel at the hearing as to what clip had been produced, and it only became apparent to me in the course of hearing evidence from one of the personal respondents that there was another video clip of this incident. I am satisfied that any failure to produce the longer, non-audio clip of the incident was due to inadvertence on the part of respondents’ counsel, and I also am satisfied that during the course of the hearing the unedited longer clip of the incident was produced without tampering.

[13] In any event, the applicant’s main point is that he was provoked by the security guard. This issue is addressed in my Decision. As I stated, while there may have been actions by the security guard that I would regard as having been inappropriate, this does not justify the applicant’s own conduct in relation to this incident and does not support that this incident gives rise to racial discrimination.

[14] With regard to paragraph 11 of my Decision, the applicant raises that he wanted to keep his hat on not only because his hair was unkempt but also because he has a receding hair line. This was raised at the hearing, and does not change my analysis or conclusions in this matter.

[15] With regard to paragraph 15 of my Decision, the applicant takes issue with my finding that the security guard set up a camera to record the interaction with the applicant. He questions how this is possible when there is a camera running 24/7 in the security area. The evidence before me is very clear that the clips were from two different cameras. As I state in my Decision, there was a camera mounted in the security area that took still pictures without audio at two second intervals. This camera is the source of the longer clip of the May 8, 2007 incident. In addition, during the course of the interaction, the security guard set up a camera with audio at the security desk, which recorded the later stages of the incident. This clip is continuous video with sound and the images are clearly taken from the security desk, which provides an entirely different vantage point than the other camera in the security area.

[16] Finally, the applicant states that in my Decision I failed to mention evidence regarding certain other employees that had been given by the applicant and two of his witnesses, namely evidence in relation to two employees named Jesse and Diane. The applicant’s evidence in relation to Jesse is that he is a white employee who was trained by the applicant yet was given the opportunity to write the Super Protrans test. The evidence of Ms. Tomaylla was that Jesse had approached her to ask if he could write the test. This evidence is disputed by the applicant, who says that Jesse said that he had been approached and asked to write the test. Jesse was not called as a witness, and I did not hear direct evidence from him as to the circumstances under which he wrote the Super Protrans test. In the absence of direct evidence from Jesse, I prefer Ms. Tomaylla’s evidence that Jesse approached her.

[17] With regard to Diane, the evidence of the applicant and his witnesses is that she was a white lead hand who was involved in cancelling a shift for the applicant and Ms. Merchant at the last minute. The issue of cancelled shifts is addressed in my decision at paragraphs 26 to 28. There is nothing about the incident involving Diane that changes my analysis or decision on this issue. Evidence also was given that Diane was afforded the opportunity to write the Super Protrans test, but there was no evidence that she had been asked by the respondents to write this test or that she had a score on the Wonderlic test that was in the same range as the applicant’s score. As a result, there is nothing about this evidence that changes my analysis or decision regarding the applicant’s allegations in relation to the Super Protrans test.

[18] The applicant also relies upon criterion (c) in Rule 25.5, but has provided no basis upon which I can conclude that my Decision is in conflict with established jurisprudence or Tribunal procedure.

[19] The Request for reconsideration is denied.