Glover v. 571566 Ontario Inc., 2011 HRTO 1951

Human Rights Tribunal of Ontario

B E T W E E N:

Ontario Human Rights Commission Complainant

-and-

571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac Tavern, Vladimir (a.k.a. Walter) Perin Sr., and Walter Perin Jr. Respondents

A N D B E T W E E N:

Martha Glover Complainant

-and-

Ontario Human Rights Commission Commission

-and-

571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac Tavern, Vladimir (a.k.a. Walter) Perin Sr., and Walter Perin Jr. Respondents

Decision

Adjudicator: Ian Anderson Date: October 28, 2011 Citation: 2011 HRTO 1951 Indexed as: Glover v. 571566 Ontario Inc.

1On October 19, 2011, Martha Glover directed a request for reconsideration under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the "Code") to the Tribunal Chair. Ms. Glover sought reconsideration of the Tribunal's decisions dated August 19, 2011 (2011 HRTO 1563) and September 19, 2011 (2011 HRTO 1717) ("the original decisions"), and requested that the matter be referred to a Panel for an oral hearing.

2The Associate Chair delegated the decision about the assignment of the reconsideration request to Vice-chair Sherry Liang. Vice-chair Liang decided to refer the request to the original panel.

3Although the request for reconsideration makes reference to rules made with respect to proceedings under Part IV of the Code, the applicable rules are those made with respect to Commission-referred complaints. In any event, the test for reconsideration requests is the same under both sets of rules. That test, is as follows:

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;

(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;

(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 and orders.

4The request for reconsideration argues that paragraph (c) of the test for reconsideration is made out. The Tribunal's approach to requests for reconsideration on this ground was discussed in Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34, at paras. 55 and 56:

[E]ven in the event of a departure from settled legal rules, there may be valid reasons why the Tribunal might nonetheless decide not to reconsider a decision. For instance, it is not clear to me that reconsideration must be granted even in the event of conflict where it is evident that the parties have had an opportunity to address the issues and the adjudicator has considered and given reasons for departing from the analysis or conclusion reached in prior cases. Where granting reconsideration in such a circumstance serves no purpose other than an opportunity to re-argue the issue, the Tribunal may well exercise its discretion against reconsidering its decision.

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.

5In this case, the request for reconsideration largely consists of a restatement of arguments previously made which were addressed in the original decisions. This is not a proper ground for reconsideration.

6In particular, to the extent that the original decisions are in conflict with prior Tribunal jurisprudence, that jurisprudence was specifically reviewed by the original decisions. The original decisions did not follow that prior Tribunal jurisprudence for reasons stated in the original decisions.

7The request for reconsideration does identify one other prior decision of the Tribunal not specifically referred to in the original decisions: Medeiros v. Cambridge Canvas Centre, 2011 HRTO 1519. In that decision, the Tribunal awarded monetary compensation for the breach by the respondents of settlement terms requiring payment of a sum of money within a certain period of time and requiring the individual respondent to complete a training program within a certain period of time. The Tribunal's reasons for granting the monetary compensation were: "the remedial nature of the Code as well as the Tribunal's interest in ensuring the finality of settlements". This reasoning is similar to the reasoning of the other prior jurisprudence of the Tribunal which was reviewed in the original decisions and rejected for the reasons stated in those decisions.

8The request for reconsideration does advance one new argument. At paragraphs 55 and 56 it states:

To the extent that the correct test for an award of compensatory damages is determined only by private contract law as is articulated in the Glover final decisions and orders, then the adjudicator has incorrectly applied the law of contract to the case at hand in determining that there was no reasonable expectation at the time of the settlement that compensation could arise as a result of the breaches.

As the Tribunal noted in Ms. Glover's case, old section 32(1) of the Code was in operation at the time that Ms. Glover and the Commission brought their breach of settlement complaints. At that time, breaches of settlement were treated as a breach of a right the Code under Part I of the Code. Breaches of a "right" under Part I of the Code commonly attract awards of general damages which have increased over the years to recognize the inherent dignity and worth of the Applicant. As well, inventive public interest measures were also common orders for breaches of rights under Part I. Given the statutory regime at the time the minutes of settlement were entered into, it was objectively reasonable for the Respondents to assume that a breach of settlement would in fact attract general damages and any other remedies or public interest remedies required to make the Applicant whole.

9I am not persuaded that this constitutes a basis upon which the Tribunal should reconsider its decision for three reasons.

10First, there is no reason why this argument could not have been made by Ms. Glover during the hearing which gave rise to the original decisions.

11Second, the proposition being advanced is that as a matter of "contract law" it would be objectively reasonable for the parties to a contract to assume that a breach of the contract would give rise to the remedies available in law at the time that they entered into the contract. It is not obvious that the proposition advanced is correct as a matter of contract law, and no authority is provided in support. It seems equally plausible that as a matter of law it would be objectively reasonable for the parties to a contract to assume that a breach of the contract would give rise to the remedies available in law at the time the breach was the subject of adjudication, as the contrary position would have the effect of permitting private individuals to freeze the state of the law.

12Third, even if correct, the argument does not raise a matter of "general or public importance". It affects not the overall reasoning of the original decision, only its application to the breach of a settlement concluded under the provisions of the Code before it was amended. As those amendments were effective as of June 30, 2008, there are unlikely to be any further cases with respect to a breach of a settlement concluded under the provisions of the Code before it was amended.

13In light of the foregoing, I did not find it necessary to require a response from any of the other parties or to convene an oral hearing.

14For all of the foregoing reasons, the Tribunal declines to reconsider the original decisions.