Cynthia Murney v. 1627074 Ontario Limited, Marc Sayer and Valerie Sayer, 2010 HRTO 349

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cynthia Murney Applicant

-and-

1627074 Ontario Limited, Marc Sayer and Valerie Sayer Respondents

RECONSIDERATION DECISION

Adjudicator: Alan Whyte Date: February 16, 2010 Citation: 2010 HRTO 349 Indexed as: Murney v. 1627074 Ontario

WRITTEN SUBMISSIONS BY

1627074 Ontario Inc., Marc Sayer ) On their own behalf and Valerie Sayer, Respondents )

1On December 14, 2009, the Tribunal issued its Decision, 2009 HRTO 2165, upholding the Application. The respondents have asked the Tribunal to reconsider its Decision.

BACKGROUND

2The Tribunal’s Decision found that a breach of the Human Rights Code, R.S.O. 1990 c.H.19, as amended (the “Code”), had occurred. I awarded the applicant monetary compensation for the infringement of her Code-protected rights (characterized in the Decision as general damages) and her wage loss (characterised in the Decision as special damages) and made orders to provide for future compliance with the Code.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration relates only to the award for wage loss and provides the following reasons why the Tribunal should reconsider its Decision:

a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;

b) 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

DECISION

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with the Tribunal’s Rules:

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.

5The 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). Most relevant to this Decision is Rule 26 which states:

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

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.

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 reopen 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.

8In their Request for Reconsideration, the respondents submit that the Tribunal’s calculation of the applicant's special damages claim was flawed in that the calculation was based on the applicant working 25 hours per week at the time of her layoff. The respondents submit that the correct number was 23.33 hours per week, and it has provided certain documents to support the latter number.

9The information submitted by the respondents would have been available at the time of the hearing but was not entered into evidence. The Tribunal's calculation of the special damages was based on the evidence that was given about the applicant’s hours of work per week.

10The respondents have not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

11There was no evidence or submissions put forward by the respondents to support their claim that the Decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

12In sum, I find that the respondents have not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.