Williams v. Hudson’s Bay Company/Zellers, 2010 HRTO 452

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Natasha Williams

Applicant

-and-

Hudson’s Bay Company/Zellers, Brian Harrison and Derek Sampath

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: March 1, 2010

Citation: 2010 HRTO 452

Indexed as: Williams v. Hudson’s Bay Company/Zellers

1On December 14, 2009, the Tribunal issued its Decision, 2009 HRTO 2168, upholding the Application. The applicant has asked the Tribunal to reconsider its Decision.

2Pursuant to the Tribunal’s Rule 26.4, the respondents have not been required to file a Response to the Request for Reconsideration.

BACKGROUND

3At the hearing, the applicant was represented by Glen Morrison, a paralegal. The respondents were represented by Catherine Peters, a lawyer. The Request For Reconsideration (“the Request”) is submitted by Mr. Morrison on behalf of the applicant.

4The Decision found that applicant’s Code-protected rights had been infringed and awarded her monetary compensation equivalent to the earnings she would have earned from July 23, 2008 to the date in October 2008 that she gave birth. In addition, she was awarded monetary compensation in the amount of $2,000 for injury to dignity, feelings and self-respect.

5Under 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 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.

6The 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).

7The Tribunal’s Rule 26.5 provides in part:

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.

8The 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.

9As 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.

THE REQUEST

10The Request identifies two reasons why the Decision should be reconsidered. First, the Request suggests that compensation in the amount of $2,000 for injury to dignity, feelings and self-respect is too low, represents a “license to discriminate” and is inconsistent with other awards made by the Tribunal. Second, the Request appears to suggest that the applicant is entitled to compensation from the personal respondents and not just from the corporate respondent, and that another corporation, Canadian Benefits Management Limited (“CBML”), which was not a respondent should nevertheless have damages assessed against it.

11The applicant claims she is “in a worse situation than if she had not filed her application with the Tribunal.” The Request does not explain how the Decision, which upheld her allegations in part and awarded compensation, has placed the applicant in a worse situation.

12As discussed at the hearing, an applicant is required to prove that she experienced an infringement of her Code-protected rights and must also prove her damages. Paragraphs 3, 4 and 92 of the Decision discussed the questioning of witnesses, including the applicant, and the evidence adduced by the applicant in respect of the damages that she sustained as a result of the injury to dignity, feelings and self-respect:

At the outset of the hearing, there was a discussion about how the hearing would proceed. I suggested that a possible approach would be for me to primarily lead the questioning of the witnesses. I made it clear that this was only a suggestion and that the hearing could equally well proceed according to the more traditional adversarial model. After consultation, the parties agreed to proceed in the manner I suggested. At the end of my questioning, the representatives reviewed their notes to ensure that all important areas had been covered and that all relevant questions, including any cross-examination questions, had been asked.

My questioning pertained primarily to evidence relevant to the determination of whether or not there had been discrimination on the grounds of pregnancy and/or disability. I advised the applicant’s representative, Mr. Morrison, that I did not intend to ask the applicant questions relevant to the assessment of what damages would be appropriate if I did find that there had been discrimination. Mr. Morrison was invited to adduce any evidence relevant to damages. Except to the extent discussed below, he did not do so.

As noted earlier in this Decision, the applicant’s evidence was limited to the issue of whether her Code-protected rights had been infringed. Apart from the brief medical notes from Dr. Strasberg, the applicant provided no further evidence about the consequences of the infringement. She testified that she was experiencing stress and anxiety in July 2008, and I have accepted her evidence on this point. However, she also testified that the stress and anxiety resolved after she was no longer in the workplace. An applicant is required to prove her damages. In this case, there is no evidence to suggest that the applicant experienced significant injury to dignity, feelings and self-respect as a result of the infringement. However, I accept that she experienced some injury to dignity, feelings and self-respect at least in regard to the chair incident in May 2008 and the subsequent difficulties she experienced in trying to assert the need for accommodation in respect of the prolonged standing restriction.

13The applicant was accordingly made aware of the fact that she was required to produce evidence to support her allegation that she had experienced injury to dignity, feelings and self-respect. Except to the limited extent as discussed in the Decision, she did not do so.

14The Request does not provide any new evidence relevant to the injury to dignity, feelings and self-respect that the applicant experienced as a result of the infringement of her Code-protected rights.

15The Request refers to various decisions that discuss general principles regarding the assessment of monetary compensation. It does not identify any cases in which there were “similar circumstances”.

16In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal found that a “conflict with established jurisprudence or procedure requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules.”

17While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that her submissions in support of the Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

18With respect to the issue of the personal respondents, the Request indicates that the decision “lacks clarity” because it does not specify whether the personal respondents are personally liable in regard to the infringement of the applicant’s Code-protected rights. However, the Decision clearly specified that the monetary compensation was payable by the corporate respondent.

19The evidence submitted at the hearing indicated that the personal respondents were all acting in the course of their respective employments in their dealings with the applicant and the events giving rise to the infringement of her Code-protected rights. Section 46.3 provides:

46.3(1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

(2) At the request of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization, the Tribunal in its decision shall make known whether or not, in its opinion, an act or thing done or omitted to be done by an officer, official, employee or agent was done or omitted to be done with or without the authority or acquiescence of the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization, and the opinion does not affect the application of subsection (1).

20The corporate respondent did not make a request pursuant to section 46.3(2) and the applicant produced no evidence to suggest that the personal respondents were not in the course of their employment in respect of the events giving rise to the Application. There would therefore be no basis for an order directing the personal respondents to personally pay any monetary compensation.

21The role played by CBML in the events leading up to the Application was discussed in the Decision. CBML was not named as a respondent, and no request was made to add it as a respondent. There would accordingly be no basis for an order directing that it was liable to pay monetary compensation.

22Having considered the submissions filed in support of the Request, I find that there is no basis to grant the Request. The applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision.

ORDER

23The Request for Reconsideration is denied.