Moore v. Curraghmore Farm Inc., 2013 HRTO 1932

Human Rights Tribunal of Ontario

BETWEEN:

Brian Moore Applicant

-and-

Curraghmore Farm Inc. Respondent

RECONSIDERATION DECISION

Adjudicator: Alison Renton Date: November 21, 2013 Citation: 2013 HRTO 1932 Indexed as: Moore v. Curraghmore Farm Inc.

Written Submissions

Curraghmore Farm Inc., Respondent Vera Simpson, Self-represented

Brian Moore, Applicant Christine Lundy, Representative

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2A hearing was held on June 21, 2013, and both parties participated. I heard evidence from the applicant and, for the respondent, Vera Simpson, who owns the respondent. A number of documents were introduced during the hearing, from both parties, and marked as exhibits. The respondent was given an opportunity to file submissions replying to the applicant’s case law which was presented during the hearing, but ultimately did not file subsequent submissions.

3In a Decision dated September 20, 2013, the Tribunal upheld the Application and ordered a number of remedies. See Moore v. Curraghmore Farm Inc., 2013 HRTO 1586.

4The respondent filed a Request for Reconsideration (“the Request”) on October 18, 2013, based upon Rules 25.5(a) and (c) of the Tribunal’s Rules of Procedure. While the Tribunal did not require the applicant to respond to the Request, the applicant’s representative filed submissions objecting to the Request. The submissions of the parties have been carefully considered by the Tribunal.

The Parties’ Positions

The Respondent’s Request

5The respondent submits that its Request is based upon newly available facts and evidence which consist of three letters: one signed by J.C. dated October 17, 2013; the second signed by A.F. from a stable dated October 18, 2013; and the third by M.T. from a landscape and maintenance company dated October 17, 2013. The Tribunal has decided, on its own initiative, to anonymize the names of the individuals who signed the letters.

6Further, the respondent provided “clarifying information” which consists of: a WSIB Form 6 Worker’s Report dated July 15, 2011 which addressed para. 37 of the Decision; the respondent’s Request for Summary Hearing dated November 26, 2012 addressing para. 61 of the Decision; the respondent’s horse departure list from April 1, 2011 to June 13, 2011 addressing para. 10 of the Decision; excerpt from Service Canada publication explain the codes used for issuing Record of Employments (“ROE”) addressing para. 31 of the Decision; Canada Revenue Agency Employer’s guide to payroll deductions and remittances addressing para. 36 of the Decision; a riding lawn mower repair bill dated June 17, 2011 addressing para. 13 of the Decision; two excerpts from operator manuals for riding lawn mowers; and the Tribunal’s Practice Direction on Hearings before it with handwritten asterisks beside some sections of it.

7The respondent did not provide any submissions or explanation with respect to either the letters or the clarifying documentation attached to Request although some of the documentation had handwritten asterisks beside them. It noted that at the end of the hearing, the respondent’s representative asked the Tribunal if she could appeal the Decision and the Tribunal indicated that it could, first by filing a Request.

The Applicant’s Submissions

8The applicant requests that the Tribunal deny the respondent’s Request. The applicant submits that the materials filed by the respondent could have been obtained prior to the hearing, and, in any event, are insufficient to materially affect the conclusions reached by the Tribunal in the Decision. Further, the applicant notes that the respondent did not provide any case law with which the Decision is in conflict. With respect to the Tribunal’s Practice Direction that the respondent provided and marked, the applicant submits that it seems to imply that the hearing was unfair rather than in conflict with established case law or Tribunal procedure. The applicant also submits that since the monetary remedy has not been paid by the respondent within the time frame ordered in the Decision, the applicant expects that post-judgement interest will be added to the quantum of damages awarded.

Law and Analysis

9Reconsiderations are not an appeal. As the Tribunal explained towards the end of the hearing when the respondent asked about appealing the decision if the Application was upheld, a party who disagrees with a decision has the ability to file a Request for Reconsideration. Judicial reviews are filed with Divisional Court.

10Rule 25.5 of the Tribunal’s Rules of Procedure sets out the limited circumstances in which reconsideration may be granted:

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.

11It 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.

12As 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.

Rule 25.5(a)

13In this case, the respondent has based its Request upon Rule 25.5(a) and has submitted documentation that had not been filed with the Tribunal prior to or during the hearing. This is despite a Case Assessment Direction issued by the Tribunal on May 21, 2013, in advance of the hearing, noting that the respondent had not complied with its Rules 16 and 17 disclosure obligations and directing the respondent to file them immediately.

14Most of the documentation provided by the respondent as “clarifying information” pre-dates the hearing, with the exception of the departure report. The departure report appears to have been printed on October 17, 2013, after the Decision was issued, but contains information from April 1, 2011 to June 13, 2011, prior to the date of the hearing. The CRA documentation, the excerpts from the riding motor operating manuals, and the Tribunal’s Practice Direction are all undated. The letters dated from October 2013 all contain information from 2011. The letter from J.C. also disputes some of the evidence about which the applicant testified which is reflected in the Decision, specifically the applicant telling J.C. that he quit his employment with the respondent.

15The respondent provided no submissions as to why the documentation or the letters address Rule 25.5(a) or why such information or documentation could not have been reasonably obtained prior to the hearing as most of it pre-dates the hearing or contains information that pre-dates the hearing. It appears from the documentation and the letters from individuals who could have been witnesses at the hearing that the respondent is now attempting to correct deficiencies in its case. Reconsideration is not an opportunity for a party to re-argue a case or correct the deficiencies in its case. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34.

16Accordingly, the applicant’s Request based upon Rule 25.5(a) fails.

Rule 25.5(c)

17With respect to Rule 25.5(c), and the inclusion of the Tribunal’s Practice Direction, it appears that the respondent is alleging that the Decision is inconsistent with, or contrary to Tribunal procedure, although again no submissions are made on this point or explanations provided by the respondent.

18There are three sections in the Practice Direction that have handwritten asterisks beside them. The first is the sentence, which is underlined, that says, “The overriding objective is always a fair and timely process…”. The second pertains to the Tribunal adjudicator reviewing the file closer to the hearing date and deciding “…whether to issue a Case Assessment Direction to assist the parties to get ready for the hearing”. The third asterisk pertains to a section describing that HRTO adjudicators play “an active role in the hearing process with the goal of ensuring the fair, just and expeditious determination of the merits of an application”. The asterisk is by the words “are self-represented”, which is also underlined.

19Prior to the hearing, as noted above, the Tribunal issued a Case Assessment Direction, dated May 21, 2013, directing the respondent to immediately comply with its disclosure obligations. The respondent did not seek to rely upon additional documentation at the hearing that it had not previously disclosed and did not identify that it wanted to call witnesses in addition to Ms. Simpson, who was alone during the hearing.

20Prior to the hearing, the Tribunal considered the respondent’s request for summary hearing. It issued correspondence to the parties, dated January 9, 2013, in which it advised the parties that a Vice-chair had considered the respondent’s request for summary hearing, but that it was denied and the Application would be processed in the normal course.

21At the beginning of the hearing, I explained the hearing process, commented that it was the applicant’s onus to prove that the Code had been violated by the respondent, and that I was not a representative for one side or the other.

22It is unclear how the Decision is contrary to, or inconsistent with, the Tribunal’s procedure.

23Furthermore, the respondent has made no submissions as to how the proposed reconsideration involves general or public interest, as required by Rule 25.5(c).

24The applicant’s Request based upon Rule 25.5(c) is also dismissed.

25The Tribunal cannot address, in this Reconsideration Decision, the applicant’s submissions to the Request that the remedies ordered in the Decision remain outstanding. In the Decision, the Tribunal remained seized with an isolated remedy, that being para. 96(2). To the extent that it remains outstanding, the applicant is directed to file a Request for Order During Proceedings with respect to this issue.