HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anne-Marie Sutton
Applicant
-and-
Jarvis Ryan Associates Inc., Peter Jarvis and Michael McColl
Respondents
RECONSIDERATION DECISION
Adjudicator: Jay Sengupta
Indexed as: Sutton v. Jarvis Ryan
INTRODUCTION
1On December 7, 2010, 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 sex as against the corporate respondent, Jarvis Ryan Associates Inc. The Application was dismissed as against the personal respondents, Peter Jarvis and Michael McColl. The applicant seeks reconsideration of the Tribunal’s decision. The applicant argues that the decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.
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 respondents.
3However, in this instance, the corporate respondent has filed submissions and a Form 20 seeking reconsideration on its own behalf. It argues that it should be allowed to file outside the 30 days provided for in Rule 26.1 because the applicant has raised new evidence in her Request for Reconsideration and that information is determinative of the issues relating to the finding that the corporate respondent discriminated against the applicant by failing to investigate her complaint of harassment.
4For the reasons that follow, both Requests for Reconsideration are dismissed.
THE LAW
5Section 45.7 of the Human Rights Code, R.S.O. 1990 c. H.19, as amended (the “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.
6It 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
Applicant’s Request
7The applicant identifies paragraph (c) of Rule 26.5 as the basis for reconsideration and makes several arguments in support of her Request.
8She asserts that the Tribunal misstated or ignored credible evidence regarding key allegations, specifically surrounding the events of May 14 and 15, 2008, and comments made by Peter Jarvis while in the hot tub.
9She argues that she appears to have been held to a higher standard when assessments of credibility were made and that the evidence of the personal respondents was not scrutinized to the extent that her testimony was.
10She argues that the evidence heard established that the personal respondent Peter Jarvis admitted making inappropriate jokes and comments. She questions why that evidence did not lead to a finding that he breached the Code.
11Finally, she asserts that she withdrew the allegation of drugging on the advice of counsel but still believes the drugging occurred. She also indicates that it was on the advice of counsel that she did not raise many unsavoury details about the conduct of the principals of the corporate respondent because she was told it was inadmissible character evidence. She clearly believes that information was important as she raises some of it, in writing, in the submissions made in support of her Request.
12While the applicant clearly disagrees with the findings of the Tribunal, she does not provide a basis on which I am able to reconsider the Decision.
13As the applicant, she bore the burden of establishing that a breach of the Code had occurred. The various inconsistencies in her account and the evolving nature of her memory were determinative of the matter and the Decision of the Tribunal was that she had failed to meet that burden.
14With respect to the other arguments raised, I agree that the allegations finally pursued at hearing were narrower than those initially raised in the Application. That document contained other allegations, including drugging of the applicant and surreptitious videotaping of several female guests at the retreat, which were not pursued at the hearing. While that may be a decision that the applicant now regrets, it is not a basis for reconsideration.
15I also cannot comment on character evidence that she did not raise at the hearing on the advice of counsel, other than to state that the matters she raises about salacious or allegedly illegal behaviour by the principals of the accounting firm in her submissions would not constitute “new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier” as outlined in Rule 26.5(a).
The Corporate Respondent’s Request
16The corporate respondent argues that it should be permitted to file its Request past the 30 days allowed under Rule 26.1. It states that the submissions and arguments made by the applicant contain new evidence that is determinative of the issue of a breach of the Code by the corporate respondent. Paragraph (a) is also the ground that it identifies in support of its Request for Reconsideration.
17The corporate respondent filed the Request after the 30 days provided for in Rule 26.1 which states as follows:
26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision [emphasis added]
18The Tribunal has, in some instances, denied the Request for Reconsideration on this basis alone (see der von Felix v. International Financial Data Services (Canada), 2010 HRTO 362).
19The corporate respondent provides no explanation for the delay in filing its materials, other than to refer to materials contained in the applicant’s Reconsideration Request. Despite this failure, I have considered the arguments raised by it.
20The corporate respondent has attached to the Form 20 a witness statement from Tracey Heath-Jones, a client of the firm that the corporate respondent did not call as a witness but whose “will say” statement they had sought to enter into evidence. They argue that her evidence showed that the corporate respondent had conducted an adequate and reasonable investigation of the applicant’s allegations.
21Although a “will say” from Tracey Heath-Jones was offered as evidence midway through the hearing, given the delay in making the request and as the witness was not called in order that her evidence could be tested, the will say was not accepted as evidence. I note the document proffered with the Form 20 and the “will say” itself concern conversations held on May 17, 2008, several days after the events that formed the basis of the Application, and is in the form of an email dated October 7, 2009, well over a year after the events in question.
22The submission of the respondents during the hearing was that the principals of the firm did not speak to Tracey Heath-Jones, interview her or issue a summons to have her appear as a witness because she was a client of the firm and it was an awkward situation for them. It is unclear how information obtained in late 2009, a year after the events in question, would be determinative of whether the corporate respondent investigated the applicant’s claims of harassment in 2008.
23A Request for Reconsideration is not an opportunity to restate or re-argue a position already advanced and considered or to shore up deficiencies in it case. In its Request, the corporate respondent has made no submissions that bear on any of the criteria outlined in either Rule 26 or the Practice Direction on Reconsideration. It is evident that it disagrees with the Tribunal’s ruling on whether it breached the Code. However, it has presented no basis to reconsider the Decision.
24The Requests for Reconsideration are denied.
Dated at Toronto this 15th day of June, 2011.
“Signed by”
Jay Sengupta
Vice-chair