Mason v. Clearlane Investments Inc., 2013 HRTO 80

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Mason

Applicant

-and-

Clearlane Investments Inc. o/a The Quail and Firkin

Respondent

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: January 15, 2013

Citation: 2013 HRTO 80

Indexed as: Mason v. Clearlane Investments Inc.

WRITTEN SUBMISSIONS

Matthew Mason, Applicant

Self-Represented

Introduction

1On November 15, 2012, the Tribunal issued its decision, 2012 HRTO 2155, in this Application (the “Decision”). The Tribunal dismissed the Application because the applicant failed to establish that he was disadvantaged by the employment practice that he was challenging under section 5 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and as such, the Application had no reasonable prospect of success.

2On December 14, 2012, the applicant sought reconsideration of the Tribunal’s decision as provided for in section 45.7 of the Code. The applicant alleges the Decision is in conflict with established case law and the proposed reconsideration involves a matter of general or public importance. The applicant provides the following further grounds in support of his Request for Reconsideration:

a. The applicant was not given prior notice that he had to meet a test of “reasonable prospect of success” and that he had made out a prima facie case of discrimination.

b. The Decision is inconsistent with the Tribunal’s decision in Seguin v. Great Blue Heron Charity Casino, 2007 HRTO 33 (“Seguin”).

c. The Tribunal’s factual findings are subject to challenge.

d. The Application raises an issue of public importance regarding systemic discrimination in restaurants across Ontario.

DECISION

3The Request for Reconsideration is denied.

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.

(2) 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 45.7 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 statutory 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:

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

26.3. A Request for Reconsideration must include:

(a) reasons for the request, including the basis upon 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.

26.5. 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.

7Practice Direction #4 states, in part:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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 26.5 have been met. As the Tribunal stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 at paras. 56-57 (“Sigrist”):

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

9This case concerns the respondent’s staffing practice of placing women in the positions of table server and bartender. There is no factual dispute that these positions are held predominately, but not completely, by women.

10A person can file an application under section 34(1) if he or she believes that any of his or her rights under Part I have been infringed. If the Tribunal finds a person’s right to be free from discrimination under the Code has been infringed, the Tribunal can make the following orders against the party who infringed the person’s right:

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

11It is clear from these statutory provisions that a person who files an application before the Tribunal must prove that his or her rights under the Code have been infringed. While systemic evidence may be called, that evidence is only relevant to the question of whether an applicant’s individual rights have been infringed.

12This Application was filed one year after the applicant left the respondent’s workforce. The applicant complains about the gendered nature of the respondent’s staffing practices even though there is no evidence that the applicant was denied the position of table server or bartender because of his gender. As such, at the close of the applicant’s case, the parties were asked for their submissions on whether the Application had a reasonable prospect of success. Whether the test is reasonable prospect of success or prima facie case, the Application cannot succeed because the applicant did not establish that he was denied the table server/bartender positions because of his gender.

13The applicant alleges that he was denied procedural fairness because he was not advised until the commencement of the hearing that the Tribunal required submissions on whether the Application had a reasonable prospect of success. The applicant was not denied procedural fairness. Rather, he was advised at the beginning of the hearing that the Tribunal required him to address the specific question of whether his rights had been infringed by the staffing practice that he was challenging.

14The applicant also asserts that the reasonable prospect of success test is confined to the summary hearing process. That is not so. The Tribunal uses this approach in a hearing when, after a general evaluation of the evidence that has been called and is proposed to be called, it is evident that an application has no reasonable prospect of success. The Tribunal has held that it is neither principled nor appropriate for a hearing to continue if it is clear that it cannot succeed. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at paras. 19-26.

15This case is different from Seguin. In that case, the employer admitted Ms. Seguin did not get a specific job because of her gender. As a result, Ms. Seguin proved her rights under the Code had been infringed. There was no such admission in this case. While the applicant established the general staffing practice by the respondent, there were exceptions to the practice, most notably for the bartender position, as reflected in the Gender/Position Hours Summary prepared by the applicant and in his own testimony. The applicant did not prove he was denied the positions of table server and bartender because of his gender and therefore he failed to establish that his rights under the Code had been infringed.

16In the Decision, the Tribunal held the applicant failed to establish that he was disadvantaged by the practice of placing women in the bartender and table server positions because he never applied for or expressed interest in being promoted to these positions. The Tribunal held further that proving discrimination is not a theoretical exercise. One must be disadvantaged on the basis of a prohibited ground of discrimination in order to have recourse to the Code. Essentially, the Tribunal held the applicant must prove he was denied the table server or bartender positions because of his gender. Ms. Seguin established that in her case. The applicant did not.

17The applicant is attempting to challenge the gendered nature of the respondent’s workforce as a public interest litigant. He has no standing to do so. It is clear from the clear statutory language under section 34(1) of the Code that an individual whose rights under the Code have not been infringed cannot bring an application to the Tribunal concerning a matter which she or he believes is in the public interest. See Carasco v. University of Windsor, 2012 HRTO 195 at para. 7. This principle applies regardless of the importance of the public interest issue, which in this case, is the alleged systemic discrimination in the restaurant industry.

18In Sigrist, the Tribunal stated 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.

19I find the applicant has not met the burden of establishing the criteria justifying reconsideration. He has not pointed to any case law that stands for the proposition that an applicant does not have to establish that his or her rights have been infringed under the Code in order to prove discrimination. That is the central ruling in the Decision. The applicant is attempting to appeal that ruling in the Request for Reconsideration. Reconsideration is not an appeal and cannot be used in this way. For this reason, the Request for Reconsideration is denied.