Salsman v. London Sales Arena Corp., 2014 HRTO 1090

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Judith Salsman Applicant

-and-

London Sales Arena Corp. and Edward Kikkert Respondents

A N D B E T W E E N:

Falicity Chartrand Applicant

-and-

London Sales Arena Corp. and Edward Kikkert Respondents

A N D B E T W E E N:

Daniella (Dan) Freeman Applicant

-and-

London Sales Arena Corp. and Edward Kikkert Respondents

A N D B E T W E E N:

Karen Clarke-McIlwain Applicant

-and-

London Sales Arena Corp. and Edward Kikkert Respondents

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw Date: July 24, 2014 Citation: 2014 HRTO 1090 Indexed as: Salsman v. London Sales Arena Corp.

WRITTEN SUBMISSIONS

London Sales Arena Corp. and Edward Kikkert, Respondents Albertos Polizogopoulos, Counsel

Karen Clarke-McIlwain, Applicant Self-represented

Introduction

1On May 30, 2014, the Tribunal issued its Decision, 2014 HRTO 775 (the "Decision"), finding that the personal respondent discriminated against the applicants in this matter, and finding the corporate respondent vicariously liable.

title of proceedings

2In the Decision, I removed Victor Desa as a personal respondent. The title of proceedings is amended to reflect this.

THE REQUESTs FOR RECONSIDERATION

3The respondents and one of the applicants, Karen Clarke-McIlwain (the "applicant"), asked the Tribunal to reconsider its Decision.

Respondents' Request

4In their joint Request for Reconsideration the respondents identify the following main reasons why the Tribunal should reconsider its Decision.

1. I made three errors of law that include: a. relying on a radio interview that was not in evidence; b. finding the personal respondent liable when he was not providing goods, services and facilities; c. allowing the applicants to not comply with procedural requirements and granting them an extension without meeting the legal requirements or providing justification for same, thereby infringing the respondents' procedural rights.

2. I made an error of fact by not finding that the respondents simply were enforcing a non-discriminatory dress code.

3. The Decision contains insufficient motivation for the awards of damages and the damages are inconsistent with the jurisprudence of the Tribunal.

4. I gave the impression of bias to the respondents by allowing the applicant's representative to uncover herself during the hearing.

5The respondents request relief as follows:

a. An order quashing the decision; b. Alternatively, removing the personal respondent from the Order to pay damages; c. In the further alternative, reducing the damages to $2500.00 for each respondent; or d. In the further alternative, affording the respondents a 60 day extension to pay the damages.

Applicant's Request

6In her Request for Reconsideration the applicant states the financial remedy awarded is insufficient and does not comply with the purpose of the Code as set out in 2014 HRTO 601.

7This applicant requests the Tribunal restore her to the position she would have been in had the discriminatory act not occurred.

decision

Legal Principles

8Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal's Rules.

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.

9The Tribunal has issued Rules of Procedure, which govern such requests, as well as 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 March 2010. Rule 26 states in part:

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

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; 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.

10The Practice Direction on Reconsideration begins with the following statements:

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.

11As 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.

12The Tribunal also has stated in Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34, 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.

Respondents' Request

13I find that the respondents have not met the burden of establishing any of the threshold criteria justifying reconsideration. The respondents have not:

• set out new facts or evidence that could possibly be determinative of the case;
• addressed why the Decision is in conflict with established case law or Tribunal procedure; and
• established that there are factors that outweigh the public interest in the finality of Tribunal decisions.

14The respondents have not provided any new facts or evidence which could not have reasonably have been obtained earlier and which are potentially determinative. The issue of whether the personal respondent was providing goods, services or facilities was not raised at the hearing, and does not constitute new facts or evidence.

15The respondents have not provided any basis to support the Decision being in conflict with established jurisprudence or Tribunal procedure. They have not pointed to any case law with which they allege the Decision in this matter is in conflict.

16They have not argued that there are factors that outweigh the public interest in the finality of decisions.

17Specifically with respect to the issues raised by the respondents, the radio interview was in evidence as set out in paragraph 31 of the Decision. I specifically advised the parties at the outset of the hearing that I had listened to the interview portion of the recording that was sent in but did not listen once the call in portion of the show began as I did not feel it was appropriate to listen to others' opinions. There were no objections other than that the applicants' representative asked that I listen to the interview with Ms. Salsman that appeared after some of the call in portion, and the respondents' then counsel agreed with the request.

18I allowed the late submission of evidence by the applicants, which is addressed at paragraph 6 of the Decision, because the same numbers were in the Application. I advised counsel for the respondents at that time if he still had objections to the admission of the document after he had cross-examined I would listen to them at that time. He did not do so. As such, I am satisfied there was no breach of procedural fairness to the respondents.

19The respondents' claim that I made an error of fact is in the nature of a disagreement about the outcome of the hearing but does not establish a reason to allow a reconsideration of the Decision.

20The respondents provided no case law to substantiate the monetary remedies were out of line with established Tribunal jurisprudence.

21With respect to the incident relating to the applicant's representative uncovering herself during the hearing, the applicant's representative began to ask questions about how much skin was "too much skin showing" by first removing her jacket and then beginning to unbutton her blouse. This behaviour was completely inappropriate and I did not allow it to continue. It had no bearing on my Decision.

22Although the respondents requested that I remove the personal respondent from the Order to pay damages, other than raising the new issue of whether the personal respondent was providing goods, services and facilities which was not before me at the hearing even though the respondents were represented by counsel, the respondents provide no reasons to support the request. The respondents made submissions at the hearing regarding the removal of the personal respondents and I removed one of the personal respondents.

23Finally, with respect to the request that the time to pay the damages be extended, the respondents provided no reason to support the request other than that the $40,000 award will require the "proper alignment of financial resources so the business can remain operational", and that the extension will not negatively impact the applicants' circumstances because the compensation was not awarded for business or income losses or for medical damages.

24The respondents request that the time to pay be extended while the Decision is being reconsidered, but also request that if the Decision is maintained, that the time to pay be extended as "described above". However, they provide no other reasons or a specific timeline. The Decision provided for the payment of damages within 60 days of the date of the Decision, which is July 29, 2014, and the respondents provided no compelling reasons to extend that timeline.

Applicant's Request

25The applicant has not provided any new facts or evidence that she could not have introduced at the hearing.

26She also has not provided any basis to support the Decision being in conflict with established jurisprudence. She has pointed to the case of Trites v. New Directions Aromatics Inc., 2014 HRTO 601 with which she alleges the Decision in this matter is in conflict. I have considered this case and find no reason to reconsider my decision in light of it.

27Unlike in Trites, the applicant was represented at the hearing. She provided documents to be relied upon at the hearing including documents to establish appropriate remedies including a remedy for business losses. In Trites, the issue was whether the Tribunal could award a remedy not claimed in the Application, which is not the case here. In this case, the applicant claimed business losses but was unable to prove them. To substantiate her business losses, the applicant disclosed one piece of paper, with no supporting business records, and was unable during her evidence to provide reliable details to the Tribunal of her business losses. I find no reason to reconsider the monetary award.

28The applicant claims she did not have adequate notice of the hearing and did not have a chance to introduce evidence she otherwise might have, including business and medical records. The Notice of Hearing was sent to the applicant's representative on June 27, 2013. In addition, on January 24, 2014, the Tribunal sent the parties a Case Assessment Direction ("CAD") that advised them they had not complied with the pre-hearing document disclosure and also referred to the hearing dates. There appears to be no reason the applicant did not have earlier notice of the hearing, and there is no reason to allow a reconsideration on that basis.

29The applicant takes issue with what she alleges are fraudulent documents produced by the respondents. I did not refer to these in my Decision because they were not relevant. I did state in the Decision that the respondent raised the "spectre of unpaid rent by the applicant at the hearing, another issue he did not address in the radio interview", in assessing the personal respondent's credibility. I made no finding that the applicant had not paid her rent.

30The applicant states that the issue of reprisal should be re-opened because she can produce a rent cheque to show she paid her rent. As stated, there is no reason this evidence could not have been produced at the hearing as it is not new evidence. In addition, it bears no relation to the issue of reprisal in this case.

31The applicant argues that all the above reasons are factors that outweigh the public interest in the finality of decisions. I do not agree, for the reasons stated.

order

32In sum, I find the respondents and the applicant have not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal's Decision. The Requests are denied.