Pilkey v. Guild Automotive Restorations Inc., 2012 HRTO 1811

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christina Pilkey

Applicant

-and-

Guild Automotive Restorations Inc. o/a The Guild of Automotive Restorers and Frank Morea

Respondents

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: September 21, 2012

Citation: 2012 HRTO 1811

Indexed as: Pilkey v. Guild Automotive Restorations Inc.

WRITTEN SUBMISSIONS

Guild Automotive Restorations Inc., Respondent

Self-Represented

Introduction

1On August 3, 2012, the Tribunal issued its decision (2012 HRTO 1522) in this Application (the "Decision"). The Tribunal held Guild Automotive Restorations Inc. (the "Guild") discriminated against the applicant when it terminated her employment as a form of reprisal. The Tribunal ordered the Guild to pay the applicant $15,000.00 in compensation for the loss arising out of the infringement of her rights, including compensation for injury to dignity, feelings and self-respect, and six months of lost wages in the amount of $15,680.00.

2On September 4, 2012, the Guild sought reconsideration of the Tribunal's decision as provided for in section 45.7 of the Ontario Human Rights Code (the "Code"). The Request for Reconsideration was based on the following grounds:

(a) The award of lost wages did not deduct the severance payment paid to the applicant under the Employment Standards Act at the time of termination.

(b) The award of lost wages did not address statutory deductions and did not deduct the employment insurance benefits received by the applicant during the six-month lost wages period.

(c) The award is unduly punitive.

DECISION

3The Request for Reconsideration is denied. This decision clarifies the calculation of lost wages ordered under the Decision.

LEGISLATIVE PROVISIONS

4Sections 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal's decisions:

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.

Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

45.8 Subject to section 45.6 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

5Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance on the Tribunal's exercise of its reconsideration powers (Practice Direction #4 Reconsideration).

6Relevant to this Decision are the following Rules:

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

25.3. A request for reconsideration must include:

(a) reasons for the request, including the basis on which the Tribunal is asked to grant the request for reconsideration;

(b) submissions in support of the request; and

(c) the remedy or relief sought.

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;

(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.

7Practice Direction #4 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.

8The Tribunal's jurisprudence is clear that a Request for Reconsideration is not an appeal and is granted only in limited circumstances. There must be more than disagreement with a decision or an alleged error to find that the conditions in Rule 25.5 have been reached. As the Tribunal stated in Sigrist and Carson v. Toronto District School Board, 2008 HRTO 34, at paras. 56-57:

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.

Secondly, assertions of a "conflict" must be analyzed with care and have due regard to the realities and nature of decision-making. Even where there is well-established jurisprudence or procedures, each decision on apparently similar issues is made within its own factual, legislative and policy context. A finding that there is a "conflict" can only be made taking into consideration the full context of the decisions.

ANALYSIS

9In the Decision, the Tribunal ordered lost wages for a period of six months. The award was based on the Tribunal's finding that the applicant would not have continued to work at the Guild for more than six months post-termination for a variety of reasons unrelated to the discrimination found.

10The Tribunal ordered six months of lost wages and deducted from that amount the two weeks' wages received by the applicant at the time of termination under the Employment Standards Act. The Tribunal calculated that amount to be $15,680.00. In reviewing the matter further, that calculation may be incorrect.

11To clarify, the Guild should pay the applicant six months of lost wages (gross), less the gross severance payment paid to the applicant in the amount of $1,049.65 at the time of termination. This net amount is subject to statutory deductions.

12The Guild submits Employment Insurance (EI) benefits received by the applicant during the lost wages period should be deducted from the award. This is incorrect. While the applicant may be under an obligation to repay EI benefits as a result of the lost wages awarded, receipt of EI benefits does not serve to reduce or mitigate any obligation on the part of the Guild to compensate the applicant for lost earnings.

13Finally, the Guild submits the award is unduly punitive. It attempts to use the reconsideration process to adduce further evidence in support of this submission.

14In Sigrist and Carson, supra, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application 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.

15The Request for Reconsideration is an attempt by the Guild to adduce new evidence that was available to it at the time of the hearing, in order to bolster its case. It is, in a nutshell, attempting to re-argue its case and appeal the Tribunal's decision. As stated in the Tribunal's practice direction #4, "Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case". The Guild's submission that the Tribunal's award is unduly punitive is dismissed.

16For these reasons, the Request for Reconsideration is denied. The payment of six months of lost wages is clarified as follows: the Guild should pay the applicant six months of lost wages (gross) less the gross severance payment in the amount of paid at the time of termination in the amount of $1,049.65. This amount is subject to statutory deductions. If there is an issue regarding this calculation, I can be spoken to.