McLarry v. Universal Supply Group, 2011 HRTO 1099

Human Rights Tribunal of Ontario

B E T W E E N:

David McLarry

Applicant

-and-

Universal Supply Group Inc. and Peter Hall

Respondents

reconsideration DECISION

Adjudicator: Kaye Joachim

Date: June 7, 2011

Citation: 2011 HRTO 1099

Indexed as: McLarry v. Universal Supply Group

1This Reconsideration Decision addresses a Request for Reconsideration of the Tribunal’s Decision, dated May 9, 2011, allowing the Application in part (2011 HRTO 893) and ordering interest on the award of special damages in the amount of $5,324.00, in accordance with the Courts of Justice Act, less applicable statutory deductions.

2On May 11, 2011, the respondents filed a Request for Reconsideration under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on the basis that there are factors that outweigh the interests of finality.

3On May 30, 2011, the applicant filed a Request for Reconsideration on the basis that there are new facts or evidence that could potentially be determinative and that could not reasonably have been obtained earlier. Section 45.7 reads as follows:

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.

4Rule 26.5 of the Tribunal’s Rules of Procedure provides that any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision. Rule 26.5 provides:

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.

5The respondents indicated in their Request for Reconsideration that the hearing was completed in March 2010 and the decision not released until May 2011. As explained when the decision was released, the decision had been completed in April 2010, but through inadvertence, was not released until May 2011 when one of the parties inquired about its release. The respondents submit that as the delay was not attributable to the respondents, they should not be held responsible for the interest from June 2010 (assuming that three months would have been a reasonable time for the release of the decision in the particular context).

6Accordingly, the respondents are seeking relief from the interest payment from June 2010 to May 2011. They request, in addition, relief from the order of post-judgment interest until this Reconsideration Request has been dealt with.

7I note that the prejudgment interest rate for causes of action arising after October 23, 1989, published by the Ministry of the Attorney General, in accordance with Ontario Regulation 399/07 stipulates the following rates for the last three quarters of 2010 and for the first quarter of 2011: 0.5%; 0.8%; 1.0% and 1.3%, respectively. Accordingly, the amount of interest on the sum of $5,324.00 (less applicable statutory deductions), is quite minimal. In addition, as between the applicant and the respondents, it would be fairer to visit the results of the inadvertent delay upon the respondents, who have had the use of the disputed money in the interim.

8With respect to the request to suspend post-judgment interest pending the result of this Reconsideration, I do not feel that there is any reason to do so. It would not be sound policy to suspend the implementation of the original order by the filing of a Request for Reconsideration. The Request for Reconsideration of the respondents is denied.

9The applicant’s Request for Reconsideration asserts that he has new evidence, which demonstrates that he was actively looking for work for a period of one year. At the hearing, the applicant testified that he had looked for work unsuccessfully throughout the year but he did not submit any evidence of his efforts to find alternative employment. I had found that the applicant failed to provide adequate evidence of mitigation in the form of searching for alternative work. In his Request for Reconsideration, the applicant has not submitted any explanation why this evidence could not have been submitted at the time of the hearing, other than “oversight.”

10The test for re-opening a hearing in light of new evidence is that the evidence “could not reasonably have been obtained earlier.” This is clearly not the case here. It would not be appropriate to re-open this proceeding on the basis of the applicant’s failure to supply readily available evidence.

11The applicant’s request for Reconsideration is denied.