Marie Yochim v. Complex Services Inc., 2012 HRTO 1723

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marie Yochim

Applicant

-and-

Complex Services Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: September 12, 2012

Citation: 2012 HRTO 1723

Indexed as: Yochim v. Complex Services Inc.

WRITTEN SUBMISSIONS

Marie Yochim, Applicant ) Self-Represented

1Marie Yochim filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 26, 2009. She alleged discrimination and harassment in respect of employment on the basis of disability. Following a hearing into the matter, a Decision was issued in which the Application was granted in part and an award of $3,000.00 in monetary compensation ordered.

2The applicant has filed a Request for Reconsideration in which she seeks to have the remedial portion of the Decision revisited. By way of remedy, she seeks an award for lost wages.

3A 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 respondent.

Decision

4Section 45.7 of 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.

5It 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.

6In the Form 20 submitted on August 14, 2012, and in the supporting material filed with it, the applicant does not identify which of the grounds under Rule 26.5 she relies upon.

7She merely states that the Tribunal adjudicator neglected to base the Decision on all of the information available, that information about wage loss was available but not provided to the Tribunal due to errors made by her counsel.

8In addressing the question of entitlement to wage loss, the Decision stated as follows:

The applicant has requested $90,000.00 in lost wages at a rate of $45,000.00 per annum.

There is no basis upon which I am able to consider any additional award for lost wages. I note that the applicant was employed full time beginning in October 2009. However, I have been provided with no documentary information as to the wages earned by her since that time and only limited oral testimony that touched on the rate of pay received initially with no clarity as to actual earnings.

In any event, I have found that no job within the applicant’s stated restrictions was actually available between April 28, 2009 and either March 2010 (if the call center position had been within the applicant’s restrictions and qualifications, which she has not established) or June 4, 2010 (the date on which she indicates she was able to return to her old position but failed to provide required information to facilitate the return to work process).

As such, I decline to make any award for lost income.

9While it is clear that the applicant believes that she is entitled to lost income, the passages from the Decision reproduced above make it clear that it is not merely lack of income information that was at issue. The gist of the Decision was that the applicant was found not to be entitled to an award for lost wages because there was no position available in the workplace that was within her restrictions during the material time.

10As stated in a number of Tribunal decisions, a Request for Reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. Although the applicant disagrees with the Tribunal’s ruling on the appropriate remedy, she has presented no basis to reconsider the decision.

11In the circumstances, the Request for Reconsideration is denied.