4137566 Canada Ltd. v. Clements, 2011 HRTO 1008

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

4137566 Canada Ltd. (Canadian Tire) and Stu Cameron

Applicants

-and-

Debbie Clements

Respondent

RECONSIDERATION DECISION

Adjudicator: David A. Wright

Date: May 26, 2011

Citation: 2011 HRTO 1008

Indexed as: 4137566 Canada Ltd. v. Clements

WRITTEN SUBMISSIONS

4137566 Canada Ltd. (Canadian Tire) ) Arthur P. Tarasuk, Counsel

and Stu Cameron, Applicants )

1The applicants seek reconsideration of the Tribunal’s decision, 2011 HRTO 106, dismissing this Application alleging a breach of settlement by the respondent. The Request for Reconsideration is dismissed.

2Rule 26.5 sets out the limited circumstances in which reconsideration may be granted:

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.

3The applicants rely upon Rule 26.5 (c) and Rule 26.5 (d). They present various new alleged facts and arguments they did not raise during the hearing. Reconsideration, however, is not an opportunity to present new evidence or make new arguments and that is why Rule 26.5 (a) requires that reconsiderations raising new facts be based on evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. Neither is the case here.

4The applicants also make numerous arguments about why, in their view, the Decision is incorrect. However, reconsideration is not an appeal or an evaluation of alleged errors in the decision. As the Tribunal stated in Sigrist and Carson v. Toronto District School Board, 2008 HRTO 34, at paras. 56-57:

As is evident from the Rules and made explicit in Practice Direction #4, reconsideration is not an appeal. It is not an opportunity to re-argue a case. Once the parties to a case 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.

Secondly, assertions of a “conflict” must be analyzed with care and have due regard to the realities and nature of decision-making. Even where there is well-established jurisprudence or procedures, each decision on apparently similar issues is made within its own factual, legislative and policy context. A finding that there is a “conflict” can only be made taking into consideration the full context of the decisions. The excerpt from the Eldridge decision relied on by the Commission, therefore, must be understood as part of the Supreme Court’s discussion about whether a hospital’s actions are subject to the Charter of Rights. The Court located the source of a potential Charter violation in the exercise of discretion by subordinate entities acting within a legislative scheme, rather than in the legislation itself. The issue was not whether the provincial government was responsible for actions taken by a subordinate authority, but whether the subordinate authority itself had to conform to the Charter. This is quite a different issue from whether, under the Code, the provincial government should be responsible for actions taken by a school board in the delivery of education services.

5Having considered the applicants’ arguments, I find that there is no basis for reconsideration pursuant to Rule 26.5 (c) or (d), as the applicants have shown neither a conflict with established jurisprudence, a matter of general and public importance, nor any other factors that outweigh the public interest in the finality of Tribunal decisions. The applicants focus on what they say are errors in the decision or interpretations with which they disagree, which do not establish grounds for reconsideration. While this is sufficient to dispose of the applicant’s Request for Reconsideration, and while I have considered all of the applicants’ submissions, I will address some of the applicants’ particular arguments in the paragraphs that follow.

6The initial Application was settled at a mediation at the Tribunal. The applicants argue that it was incorrect for the Tribunal to assert that the respondent was self-represented at that mediation, making various assertions about the mediation and its background, and suggest that the Minutes of Settlement were drafted by or on behalf of the respondent. They argue, among other things, that the legal principle contra proferentum should apply to resolve any ambiguities in interpretation in favour of the applicants. The applicants did not present any evidence on these issues or make these arguments at the hearing. They are not appropriately raised for the first time on reconsideration and do not justify reconsideration.

7The applicants also make various statements about mediation at the Tribunal, which misapprehend both the process of mediation in general and mediation practices at the Tribunal. The applicants suggest that the Tribunal may have “represented” the respondent in drafting the Minutes of Settlement. Mediation at the Tribunal is voluntary; neither party is required to participate. The role of the mediator is to assist the parties in reaching a settlement, provide them with information about what may happen if the matter proceeds to a hearing, and not to represent either party. Any agreement reached is between the parties, and the Tribunal has no role in approving settlements. A party that is unsatisfied with a proposed agreement is of course not forced to settle, and may proceed to a hearing.

8The applicants suggest that the Minutes of Settlement were based on a Tribunal template and that this should have affected their interpretation. Their counsel states as follows:

[The applicants submit] that if the Tribunal was responsible for the MINUTES OF SETTLEMENT, then if applying the Tribunal’s long standing practice the Tribunal also relied on a template MINUTES OF SETTLEMENT model that the Tribunal categorizes as its “standard” form of settlement documentation.

Respectfully, it is common knowledge that the Tribunal has notoriously and zealously guards [sic] the form of the template of the MINUTES OF SETTLEMENT model drafted by the Tribunal. In its practice, the Tribunal consistently and vigorously resists any attempts by the parties to change the form of the template.

Following the release of the Instant Decision of the Tribunal a Respondent Employer to another Application was scheduled to attend a Mediation Meeting conducted under the auspices of the Tribunal. In preparation of the said Mediation Meeting the Respondent Employer was advised to prepare and table draft MINUTES OF SETTLEMENT that were aimed at addressing the very solution proposed by the Tribunal in paragraph 18. Not surprisingly the Tribunal rejected the amended MINUTES OF SETTLEMENT and insisted that the MINUTES OF SETTLEMENT be worded so as to confirm to the Tribunal’s standard template.

9The Tribunal has no one “standard template” for Minutes of Settlement and could not insist on one because it is not a party to settlements. Tribunal mediators generally have templates or standard clauses that they use to assist parties in drafting Minutes of Settlement where that is appropriate. This is because many parties, both applicants and respondents, are self-represented at mediation and may require assistance with drafting Minutes of Settlement, and represented parties also often ask mediators to provide standard clauses. There is no policy of the Tribunal to require a particular form of agreement as counsel for the applicants suggests. An agreement may contain any language the parties can agree upon. It is, of course, the mediator’s role to convey to both parties the other party’s position and provide reflections on the position taken by a party but that must not be mistaken for a policy of the Tribunal.

10Finally, the applicants make the argument that:

…the Tribunal failed to conduct itself in a reasonable manner when considering the interests of the Applicant, 4137566 Canada Ltd., with respect to the disposition of the Applicant’s Section 45.9 (7) Application, in accordance with the standards articulated by the Ontario Superior Court of Justice in matter [sic] between AUDMAX INC. and MAXINE TELFER and HUMAN RIGHTS TRIBUNAL OF ONTARIO and SEEMA SAADI, Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315, and relies upon the ratio of the Court’s findings.

11The applicants provide no particulars of these bald and serious allegations or cites to particular principles set out in Audmax and so it is impossible for the Tribunal to evaluate these arguments. However, it seems to me that the applicants’ submissions regarding self-represented parties are largely at odds with the Divisional Court’s reasoning in Audmax, in particular paras. 38-39.

12The Request for Reconsideration is dismissed.