Laura Fry v. Running Room Canada Inc., 2012 HRTO 149

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Fry Applicant

-and-

Running Room Canada Inc. Respondent

RECONSIDERATION DECISION

Adjudicator: Ena Chadha Date: January 19, 2012 Citation: 2012 HRTO 149 Indexed as: Fry v. Running Room Canada

1The applicant filed an Application on February 9, 2011 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment on the basis of disability.

2This Reconsideration Decision addresses the applicant's request to reconsider this Tribunal's earlier Interim Decision removing a personal respondent and substituting a corporate respondent.

BACKGROUND

3The applicant was employed by Running Room Canada Inc. ("Running Room") as a store manager. The applicant alleges that her employment was terminated because of her disability. The Application identified the store's area manager ("personal respondent") as the only named respondent in the matter.

4On April 4, 2011, the personal respondent filed a Request for Order During Proceedings ("Form 10 RFOP"). The Request sought that the personal respondent be removed as a party and that Running Room be substituted as the corporate respondent party to the Application.

5The applicant did not file submissions in response to the Form 10 RFOP.

6By way of Interim Decision 2011 HRTO 928 dated May 16, 2011, the Tribunal ordered the personal respondent be removed as a party to this Application and that the corporate respondent, Running Room Canada Inc. ("Running Room") be substituted as the respondent in this matter. The Tribunal found that the allegations against the personal respondent pertained to actions and decisions taken solely in the course of her employment role. The Tribunal accepted that the employer, Running Room, was potentially liable for the alleged violations and, therefore, an appropriate respondent to the Application.

7Pursuant to the Order set out in the Interim Decision, the counsel for the employer confirmed in writing on May 24, 2011 that the corporate respondent adopted the personal respondent's Response. The Response indicated that counsel for Running Room was acting for both the personal respondent and the corporate respondent.

8The Response and corporate respondent's correspondence was delivered by the Tribunal to the applicant under cover letter dated May 27, 2011.

RECONSIDERATION REQUEST

9On December 7, 2011, the applicant filed a Request for Reconsideration asking the Tribunal to reconsider its Interim Decision because there were new facts or evidence that potentially could be determinative of the case that could not reasonably have been obtained earlier; that she did not receive proper notice; the decision is in conflict with established case law and that there were other relevant factors.

10Section 45.7 of the Code provides the Tribunal with authority to reconsider its decisions. Further to its power to make rules, the Tribunal has issued Rules governing Requests for Reconsideration. Most relevant to this Reconsideration Decision is Rule 26 which states:

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]

26.5.1 A Request for Reconsideration made more than 30 days following the Decision will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

11Rule 26.5 provides that 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.

12The Tribunal has also issued 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). The Tribunal's Practice Direction on Reconsideration states, in part, the following with respect to the Tribunal's power to grant reconsideration:

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.

Delay

13I note that, on the basis of delay alone, the Tribunal may deny the Request for Reconsideration. See der von Felix v. International Financial Data Services (Canada), 2010 HRTO 362 and Liu v. Country Herbs, 2011 HRTO 1166.

14The applicant was required to file her reconsideration request within 30 days of the Tribunal's May 16, 2011 Interim Decision. However, the applicant did not submit this Request for Reconsideration until December 7, 2011, at which point the deadline for reconsideration had long elapsed. I find that the applicant has provided no meaningful information or justification for why the Request for Reconsideration was made beyond the timeline stipulated in Rule 26 and therefore has not established good faith within the meaning of Rule 26.5.1.

15The documentation on the file indicates that the applicant was corresponding with the Tribunal in June 2011 requesting information regarding the process for either withdrawing an application or continuing to name the original party. The Tribunal provided the applicant with information on June 24, 2011. At this time, the Tribunal expressly reminded the applicant, as it did in previous communications, that all parties are required to copy other parties on any correspondence with the Tribunal. Notwithstanding the Tribunal's repeated directions to copy the corporate respondent with her correspondence, the applicant refused to copy the corporate respondent.

16The applicant next corresponded with the Tribunal on November 22, 2011 seeking information on amending the Application. Again, the applicant did not copy the corporate respondent with her correspondence. Despite the fact that the respondents were represented by legal counsel and that the personal respondent had been removed from the Application, the applicant attempted to send correspondence to the personal respondent's work email account, which was returned undeliverable.

17The applicant's December 7, 2011 reconsideration submissions state that her request was filed at the "appropriate time" because the personal respondent failed to accept emails relating to the Application causing the applicant difficulty to respect the Tribunal's rules. The applicant appears to suggest that she was unable to comply with the Tribunal's 30 day deadline because her emails to the personal respondent were being returned as undelivered. I find that this is an inadequate explanation for any delay in filing the Request for Reconsideration.

18The applicant was aware as of the May 16, 2011 Interim Decision that the corporate respondent had been substituted for the personal respondent. The applicant was aware from the corporate respondent's Response sent by the Tribunal on May 27, 2011 that counsel for the employer was acting for both respondents and authorized to accept service on behalf of both respondents. The applicant was informed of the Tribunal's processes by the end of June 2011 and was expressly directed to copy the corporate respondent with all correspondence.

19In these circumstances, I do not accept the applicant's suggestion that the delay was not her fault and find that there is no good faith within the meaning of Rule 26.5.1.

Reconsideration Criteria

20I find that even if the request had been made in a timely manner, the grounds for seeking reconsideration do not meet the Rule 26 factors as set out above. The applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration. First, it is not sufficient basis for reconsideration for the applicant to assert that her rights were violated by the personal respondent and that the personal respondent must be held responsible. The applicant's disagreement with the Order to substitute the personal respondent is not a basis for reconsideration. The Tribunal's jurisprudence establishes that reconsideration is not an opportunity to for a party to reargue the case, nor is it available simply because a party disagrees with the decision. See Dwyer v. Chrysler Canada, 2009 HRTO 385. Further, a request for reconsideration is not an opportunity to restate submissions already advanced and considered: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34.

21Second, I am not convinced that any findings made in the Interim Decision are in conflict with established jurisprudence or Tribunal procedures. The Tribunal found that all of the allegations in the Application relate to decisions made and incidents that occurred in the workplace, for which the Running Room may also be liable. The Tribunal found that there did not appear to be any compelling reason to continue the Application as against the personal respondent given that at all times the personal respondent was acting within the scope employment responsibilities for the corporate entity. These considerations are in accordance with the principles the Tribunal has articulated regarding the removal of personal respondents: Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14. The applicant has not raised any argument or cited any point that would alter the conclusions reached in the Interim Decision with respect to the proper considerations for removal of a personal respondent.

22While the applicant's reconsideration request states she did not receive proper "notice", the applicant has not indicated what "notice" she claims she failed to receive. Based on the applicant's earlier correspondence, it appears that the applicant may be claiming that she did not receive notice on how to file submissions in response to the respondent's Form 10 RFOP. In correspondence to the Tribunal, the applicant stated that respondent's Form 10 RFOP provided no instructions on how to respond. I do not accept the applicant's contention that she was unaware of the fact that she was entitled to file submissions in response to the Form 10 RFOP. I note that, contrary to the applicant's claim that the Form 10 RFOP did not provide instructions, the standard Form 10 Tribunal cover page specifically states the necessary steps that any party receiving a Form 10 may undertake to file a Form 11 response.

23Based on my review of the reconsideration request, I am not satisfied that any of the criteria supporting reconsideration of the original decision have been established. The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. The applicant's submissions do not raise issues of general importance nor outweigh the public interest in the finality of Tribunal decisions.

24In conclusion, I find that the applicant failed to file her Request for Reconsideration in a timely manner and has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal's Interim Decision.

25Accordingly, the Request for Reconsideration is denied.