Yvonne Dean v. Halpern’s Limited, 2011 HRTO 1052

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yvonne Dean

Applicant

-and-

Halpern’s Limited

Respondent

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: June 2, 2011

Citation: 2011 HRTO 1052

Indexed as: Dean v. Halpern’s

Introduction

1On April 18, 2011, the Tribunal issued a Decision in which it granted the Application, finding that the applicant had established discrimination in respect of employment on the basis of disability (Dean v. Halpern’s, 2011 HRTO 780). On May 5, 2011, the Applicant filed a Request for Reconsideration of that Decision and submissions in support of her Request. In essence, while she does not argue with the finding that discrimination occurred, the applicant seeks to have the remedial portion of the Decision reconsidered.

2A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondent.

Decision

3The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), arising out of her former employment with the respondent. The applicant alleged that she had experienced harassment and discrimination on the basis of disability in respect of employment.

4The Decision held that the applicant had not established a nexus between the treatment experienced by her in the workplace prior to her departure on sick leave and any Code ground. However, her disability was found to be one of several factors in the respondent’s decision to terminate her.

5The respondent was ordered to pay the applicant $15,000.00 monetary compensation and all managers and those performing human resources functions in the respondent company were ordered to complete online human rights training within a specified time. No lost wages or benefits were awarded.

6The applicant seeks to have the remedial portion of the Decision amended and seeks an additional $111,200.00 to remedy and address the financial shortfall she alleges she experienced as a result of the conduct of the respondent.

7Section 45.7 of Code allows any party to a proceeding before the Tribunal to request that 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.

8It 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.

9In her Form 20, the applicant has not identified the ground under which she seeks to have the Decision reconsidered. However, in the materials attached to the Form 20, she indicates that:

“…the purpose of the Tribunal’s Code [is] to restore an applicant to the position he or she would have been in if the discrimination had not occurred. In my case this has not happened”.

10The arguments and relief requested in the present Reconsideration Request are similar to those that were presented by the applicant in writing in her Application and at the hearing.

11A Request for Reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. In her Request, the applicant has made no submissions that bear on any of the criteria outlined in either Rule 26 or the Practice Direction on Reconsideration. The thrust of her submissions merely reiterate arguments made earlier in the process. It is evident that the applicant disagrees with the Tribunal’s ruling on remedy. However, she has presented no basis to reconsider the decision.

12The Request for Reconsideration is denied.