Palmer v. Starwood Hotel & Resort, 2011 HRTO 804

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Neil Palmer

Applicant

-and-

Starwood Hotel & Resort Sheraton Gateway Hotel

Respondent

RECONSIDERATION DECISION

Adjudicator: Dale Hewat

Date: April 21, 2011

Indexed as: Palmer v. Starwood Hotel & Resort

1On November 3, 2010 the Tribunal issued its Decision 2010 HRTO 2188 dismissing this Application.

2The Tribunal’s Decision found that the facts proven by the applicant were insufficient to prove discrimination on the basis of race, colour or place of origin on a balance of probabilities.

3The applicant has asked the Tribunal to reconsider its Decision.

The Request for Reconsideration

4The applicant makes a number of submissions in support of his Request for reconsideration. He argues that the respondent witnesses lied about the employment of other Black managers within the respondent’s organization. He also questions the validity of the respondent’s evidence about his incompetence and the training offered to him.

5The applicant seeks to rely on new evidence concerning the respondent’s “Service Promise” program and additional evidence about uniforms and other documents. The applicant claims that the witnesses he planned to call did not testify because they were fearful their participation would impact their employment.

6Finally the applicant claims that, during the hearing, he was not allowed to enter any documents or make any arguments in support of his case. The applicant claims that I did not give him an opportunity to speak about his qualifications which would have demonstrated he was the most senior and qualified employee for promotions in his department. Because his evidence was restricted, the decision is misleading and one-sided.

DECISION

7Under 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.

8The Tribunal’s Rule 25 provides:

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.

9The 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.

10In this case, the applicant’s submissions do not support his Request. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered by the Tribunal. During the hearing, evidence was led and considered about the applicant’s work experience, seniority and training. The applicant was given a full opportunity to advance his position at the hearing, both by way of the presentation of the evidence, including cross-examining the respondent’s witnesses and making submissions.

11My rulings concerning the scope of the applicant’s evidence responded to the applicant’s counsel’s attempt to raise new allegations which were not part of the subject-matter of the applicant’s original human rights complaint and therefore beyond my jurisdiction to consider given the language of section 53(5) of the Code. Secondly, I ruled that I would not consider arguments or evidence from the applicant that focussed on whether the respondents had “just cause” to terminate his employment since that was not the issue in this Application. The question before me was whether the respondent discriminated against the applicant in employment and whether discrimination was a factor in the termination of his employment. The applicant was given a full opportunity to testify and to question the respondent and its witnesses on all evidence relating to the issues in this Application.

12The Request essentially challenges the respondent’s evidence which the applicant, through his counsel, had a full opportunity to question and dispute at the hearing. The additional evidence and documents the applicant now seeks to introduce were available to him at the time of the hearing and, in any event, would not be potentially determinative of the case. The applicant is incorrect that the only evidence about his incompetence was presented by his manager who had engaged in the alleged discrimination. Both Ms. Oklejwska and Ms. Reardon testified for the respondent about the applicant’s performance issues.

13The claim that his witnesses were too fearful to testify is also not a reason to justify reconsideration in this case. Again, the applicant, through his counsel, had an opportunity to summons witnesses to the hearing, but chose not to do so.

14The applicant has not satisfied the existence of any of the criteria in Rule 25 that would lead to reconsideration of the Tribunal’s Decision. Accordingly, the Request is dismissed.