Peters v. Zhang, 2010 HRTO 976

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Peters

Applicant

-and-

Tong Zhang

Respondent

a n d B E T W E E N:

Andrea Kovacs

Applicant

-and-

Tong Zhang

Respondent

RECONSIDERATION DECISION

Adjudicator: Faisal Bhabha

Date: May 4, 2010

Citation: 2010 HRTO 976

Indexed as: Peters v. Zhang

INTRODUCTION

1On April 8, 2010, the Tribunal issued a Decision, 2010 HRTO 782 (the "Decision"), finding that the applicants in these two Applications that were heard together had failed to establish discrimination in employment. The applicants filed a joint Request for Reconsideration of the Decision.

REQUEST FOR RECONSIDERATION

2Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.

3It is also useful to consider the Tribunal's Practice Direction on Reconsideration, which states in part:

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.

DECISION

4The applicants argue that the Decision is in conflict with established jurisprudence and Tribunal procedure. Their submissions can be summarized as follows:

• The Tribunal improperly allowed the respondent to admit evidence not disclosed in accordance with the Rules, causing prejudice to the applicants.
• The Tribunal improperly concluded that "the applicants worked together as a team and therefore were terminated as a team rightfully so".
• The Tribunal failed to afford sufficient weight and consideration to the conclusions of a Ministry of Labour employment standards officer.
• The Tribunal drew an unfair adverse inference from Ms. Kovacs' failure to name her alleged harasser as a personal respondent.
• The Tribunal itself breached the Code and its Rules in its handling of interim requests and in its substantive findings.

5Reconsideration is not an opportunity for a party to re-argue their case. The applicants' primary objections appear to be based on alleged technical breaches of the Rules by the respondent prior to the hearing. I have already heard and considered all their submissions on those issues and, because they were interim decisions, they are not subject to reconsideration pursuant to Rule 26.1.

6Regarding the weight given to the conclusions of the Ministry of Labour process, the Employment Standards Officer did not consider the question of discrimination and, in any event, the conclusions of an Employment Standards Officer are not binding on the Tribunal.

7The applicants dispute the conclusion on the merits in this case with respect to family status discrimination against Mr. Peters. The Tribunal's conclusion was based on factual findings, which are not subject to reconsideration. The Tribunal stated at para. 53:

I also accept the respondent's evidence that, based on the way in which the applicants conducted themselves from the time of Ms. Kovacs' hire, it was reasonable to conclude that the dissatisfaction communicated in Ms. Kovacs' letter of June 30, 2008 was shared by Mr. Peters and that his employment relationship was likely strained beyond repair. His failure to return the respondent's phone calls supported this conclusion. It is not family status discrimination where there is an actual basis to conclude that the employment relationship cannot be salvaged, as opposed to a presumption based on Code-related reasons or stereotypes. It was reasonable of the respondent to conclude that a workable employment with relationship with Mr. Peters was unsalvageable [emphasis added].

8The reconsideration process is not an opportunity to challenge findings of fact or analytical conclusions about the application of the law to the facts.

9Finally, the applicants argue that "the most serious argument for reconsideration is what we believe was a direct violation of the Code itself by the adjudicator in concluding simply because of a marital relationship that the applicant's [sic] were a team and therefore could be terminated as a team." As noted above, the applicants have mischaracterized the Tribunal's finding. In any event, to the extent that the findings include mixed fact and law, the proper recourse is judicial review.

10In view of the above, the Reconsideration Request is denied.