Nicole Ferrari v. Chrysler Canada Inc., 2011 HRTO 1140

Human Rights Tribunal of Ontario

B E T W E E N:

Nicole Ferrari Applicant

-and-

Chrysler Canada Inc. Respondent

RECONSIDERATION DECISION

Adjudicator: Eric Whist Date: June 13, 2011 Citation: 2011 HRTO 1140 Indexed as: Ferrari v. Chrysler Canada

WRITTEN SUBMISSIONS

Chrysler Canada Inc., Respondent ) Emmeline Morse, Counsel Nicole Ferrari, Applicant ) Self-represented

1This Application, filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination in employment on the basis of disability and sex. In a Decision dated February 1, 2011, 2011 HRTO 227 (the "Decision"), I dismissed the Application for delay.

2On February 24, 2011, the respondent wrote to the Tribunal requesting that the Tribunal amend the Decision by exercising its authority under Rule 25 of the Tribunal's Rules of Procedure. Rule 25 allows the Tribunal to amend clerical errors in a decision or order.

3In its February 24, 2011 letter, the respondent submits that the Tribunal's Decision mischaracterizes a position of the respondent's. The respondent submits that as part of its request to dismiss the Application for delay it had indicated to the Tribunal that the applicant was placed on permanent, rather than a temporary, layoff on August 4, 2008. To support this contention the respondent quotes from its Request for an Order During Proceedings to dismiss the Application which states:

When the Applicant was terminated/laid-off effective August 4, 2008, that lay-off was a permanent one and that was known to all parties on August 4, 2008. The fact that the applicant was terminated effective August 4, 2008 is confirmed by the provisions of the Employment Standards Act 2000, S.O. 2000 c. 41 (the "ESA"). To the extent that the Applicant's lay-off is viewed as "temporary" (which it is not), the ESA confirms that a temporary lay-off becomes a termination in accordance with certain rules... (para. 19)

4The respondent submits that in its Decision the Tribunal inaccurately stated that the respondent took the position that the lay-off was a temporary one, at least at the beginning of the lay-off period. The respondent quotes from paragraph 11 of the Tribunal's Decision which states:

... The respondent submits that this lay-off was initially categorized as temporary under the provisions of the Employment Standards Act...

The respondent further quotes from paragraph 17 of the Decision where the Tribunal states:

...it would take some time under the ESA for the applicant's temporary lay-off to be considered a termination of her employment...

5The respondent requests that the Tribunal amend the reference to "temporary lay-off" in paragraphs 11 and 17 of the Decision to reflect the fact that it was the respondent's position that the lay-off was a permanent lay-off effective August 4, 2011 regardless of the ESA provisions and that the respondent's arguments with respect to "temporary lay-off" were an alternative position. The respondent submits that this request to amend the Decision is being made because there is an outstanding civil dispute between the parties in which there is an issue of whether when the applicant was terminated/laid-off effective August 4, 2008 she was placed on a "permanent" or "temporary" lay-off.

6Having reviewed the materials that I considered in determining whether to dismiss the Application, as well as the wording of the Decision itself, I am satisfied that the Decision mischaracterizes the respondent's position and that it would have been more accurate to state in paragraph 11 that the respondent's submission was that it considered the lay-off to be permanent and not to refer to the lay-off as temporary in paragraph 17. However, that being said I am not prepared to grant the respondent's request to amend.

7The respondent has asked that the Tribunal amend its decision under Rule 25. Rule 25 states:

REQUEST TO AMEND CLERICAL ERRORS

25.1 Within 30 days from the date of a decision or order, a party may request that the Tribunal correct a typographical error, error of calculation or similar error made in the decision or order. The Tribunal may, at any time, make similar corrections.

8I am of the view that the respondent's request to amend is more substantive than a request to amend a clerical error. It is a request that requires me to re-assess how I interpreted the submissions and documents that were before me and how I ultimately considered these materials in my written decision. This goes beyond the intent of Rule 25 which, in my view, is to allow the Tribunal to fix minor, obvious and essentially incontestable mistakes of a clerical nature.

9The applicant did provide submissions to the Tribunal in relation to the respondent's request to amend. The applicant submitted that the Tribunal should not reconsider its Decision, as the respondent's request did not meet the requirements for reconsideration as set out in Rule 26 of the Tribunal's Rules of Procedure. I note that after the applicant provided these submissions the respondent wrote to the Tribunal to state that it was not seeking reconsideration of the Tribunal's Decision under Rule 26 but rather it wished to rely on its request to amend the Application under Rule 25 of the Tribunal's Rules of Procedure.

10The respondent's request is not the type of request one generally sees when a party seeks a reconsideration under Rule 26. The respondent was not asking the Tribunal to reconsider its decision to dismiss the application. It was seeking to have the Tribunal amend two particular references in its Decision that were seen to be inaccurate and were of concern because of other possible legal proceedings. It is not apparent that the criteria set out in section 26 upon which the Tribunal would grant a reconsideration would apply in the present case.

11Given these circumstances, I will not be granting the respondent's request to issue an amended Decision.