Payette v. Alarm Guard Security Service Inc., 2011 HRTO 783

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samantha Payette

Applicant

-and-

Alarm Guard Security Service Inc. and

Omari Parsons

Respondents

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle

Date: April 20, 2011

Citation: 2011 HRTO 783

Indexed as: Payette v. Alarm Guard Security Service

WRITTEN SUBMISSIONS

Alarm Guard Security Service, Respondent ) Paul Nesseth, Counsel

1On January 14, 2011, the Tribunal issued its Decision, 2011 HRTO 109, upholding the Application. The corporate respondent has asked the Tribunal to reconsider its Decision with regard to the remedy ordered.

background

2The Tribunal’s Decision found that the personal respondent, a manager at the corporate respondent, had discriminated against the applicant on the basis of sex and sexual solicitation and that the corporate respondent was aware of the applicant’s complaints, but failed to conduct an investigation. The Decision also found that the failure to investigate contributed to the applicant’s resignation from employment at the corporate respondent. The remedial Order made included an order that the respondents

(…) jointly and severally pay the applicant $18,000.00 in compensation for loss arising from injury to feelings, self-respect and dignity for the infringement of her rights under the Code.

THE REQUEST FOR RECONSIDERATION

3In its Request for Reconsideration, the corporate respondent states that the Decision has not accounted for the fact that the discrimination took place at a satellite office of the corporate respondent and was perpetrated by “an individual employee” over whom the corporate office had “little control”, the harassment on the basis of sex and sexual solicitation did not involve physical touching, and submits that it “did not conduct an unreasonable investigation that condoned discrimination and which would have caused further incidents of discrimination to occur”.

4The corporate respondent submits that findings of discrimination on the basis of sex and sexual solicitation in other Tribunal cases have been “more serious” and that the amount of damages awarded for loss arising from injury to feelings, self-respect and dignity is excessive. The corporate respondent indicates it seeks Reconsideration because:

The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

DECISION

5Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

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.

6The Tribunal has issued Rules governing such requests in relation to Applications made pursuant to sections 53(3) and 53(5) as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). Most relevant to this Decision is Rule 25 which states:

25.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

25.5. 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.

7The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

8As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

9I find that the corporate respondent has not met the burden of establishing any of the threshold criteria justifying reconsideration.

10As indicated above, the corporate respondent relies on Rule 25(c). The corporate respondent cites other Tribunal Decisions where findings of discrimination on the basis of sex and sexual solicitation resulted in remedial orders, and argues that in the context of those decisions, the damages awarded in this case are too high.

11At paragraphs 49-54 of the Decision the Tribunal provides reasons for its damages award. It considered the applicant’s particular circumstances in the context of the Tribunal’s general approach to awards of damages for injury to dignity feelings and self-respect as well as awards in other cases involving discrimination on the basis of sex, sexual solicitation which resulted in the termination of an employment relationship. I am not convinced that the remedial order made in the Decision is in conflict with established jurisprudence.

12In Sigrist and Carson v. London District School Board, 2008 HRTO 34, the Tribunal stated at paragraph 54 that a conflict with established jurisprudence or procedure requires that “there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules.” While the corporate respondent clearly disagrees with the conclusions of the Tribunal, I am satisfied that its submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

13It is also important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson, above, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

14In sum, I find that the corporate respondent has not established the existence of any of the criteria in Rule 25 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.