Bartlett v. Hooters Holdings Inc., 2014 HRTO 1375

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Bartlett Applicant

-and-

Hooters Holdings Inc., John Goard, Michael Stevenson and Haroon Haiderzadeh Respondents

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott Date: September 16, 2014 Citation: 2014 HRTO 1375 Indexed as: Bartlett v. Hooters Holdings Inc.

WRITTEN SUBMISSIONS

Hooters Holdings Inc., John Goard, Michael Stevenson and Haroon Haiderzadeh, Respondents

Robert Tighe, Counsel

Introduction

1This Application, filed on March 28, 2014, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability. The applicant alleges that he was harassed during his employment and that his complaints of harassment were not addressed while he was employed.

2On March 28, 2014, the applicant commenced a civil claim for the alleged wrongful termination of his employment by the corporate respondent.

3In the Response to the Application, the respondents sought a dismissal of the Application on the basis that:

A claim based on the same facts had been filed in civil court, requesting a remedy based on the alleged human rights violation.

4By decision 2014 HRT0 778 (the “Decision”), the Tribunal dismissed the respondent’s dismissal request on the basis that the civil claim did not seek a remedy for an alleged infringement of the applicant’s rights under the Code. The Tribunal relied on section 34(11) of the Code, which states:

34(11) A person who believes that one of his or her rights under Part 1 has been infringed may not make an application under subsection (1) with respect to that right if,

a. a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn. (emphasis added)

5On July 2, 2014, the respondents filed a Request for Reconsideration.

decision

6The Request for Reconsideration is denied.

analysis

Reconsideration Test

7Under 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.

8The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. Rule 26 of the Tribunal’s Rules of Procedure states:

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

9The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

Examples of situations where the HRTO has refused a request for reconsideration are where:

the request asks for review of an interim decision which does not finally decide the party’s rights or interests;

the request repeats arguments the party has made at the hearing or in written submissions;

a party disagrees with and wishes to challenge a finding of fact, including findings made about the credibility of witnesses;

a party wishes to raise new arguments that were not made, but could have been made at the hearing or in written submissions;

a party received notice that an application could be dismissed as abandoned if steps were not taken, but did not follow the Tribunal’s directions by the deadline.

Examples of situations where the HRTO has reconsidered its decision are:

where a party, through no fault of its own, did not receive notice of a hearing or request for submissions; or

where exceptional factors exist that outweigh the public interest in the finality of decisions including inconsistencies in the HRTO’s case law.

10As is clearly enunciated in the Practice Direction on Reconsideration, reconsideration is not an appeal, nor is it an opportunity to make arguments that were not made in written submissions.

Application of the Reconsideration Test

11The respondents’ Request for Reconsideration is based on the following grounds:

a. There are new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier;

b. The respondents did not receive notice of the proceeding;

c. The decision is in conflict with established jurisprudence and the proposed reconsideration involves a matter of general or public importance;

d. Other factors exist that outweigh the public interest in the finality of Tribunal decision.

12In the Decision, I found the Application was not barred under section 34(11) of the Code because the civil claim does not seek a Code remedy as required under section 34(11)(a). The civil claim deals with the alleged wrongful termination of the applicant’s employment whereas the Application raises allegations of harassment during the applicant’s employment. Although the civil claim refers to the alleged harassment, there is no remedy sought under the Code for the harassment. It is plead as an explanation as to why the applicant did not return to the corporate respondent’s employ. The allegations and remedies sought in the civil claim are for the alleged termination of the applicant’s employment. In the absence of any Code remedy sought in the civil claim, the Application is not barred from proceeding under section 34(11). This finding was based on a review of the Application, the civil claim, and the parties’ submissions on section 34(11).

13The respondents submit they were denied the right to make oral submissions on their dismissal request and denied the right to respond to the applicant’s Reply. There is no right to respond to a Reply. The right to make oral submissions under section 43(2) of the Code does not apply because the Application has not been finally disposed of. The Decision is an interim decision allowing the Application to proceed, and nothing more. In any event, the respondents made written submissions in support of their dismissal request in their Response, which were considered by me when making my decision.

14There is no right to reconsider an interim decision that does not finally dispose of some or all of the central issues in an application. Rule 26.1 of the Tribunal’s Rules of Procedure provides that a party may request reconsideration of a “final decision” of the Tribunal. The Decision is not a final decision on any substantive issues in the case. Therefore, there is no right to reconsider the Decision. See Lazareva v. York Region (Regional Municipality), 2012 HRTO 1090 at para. 13.

15The respondents have made detailed submissions about the merits of the civil claim and the Application, and about the applicant’s credibility. These issues are not relevant to the question of whether the Application is barred because of the civil claim under section 34(11) of the Code.

16It is clear from the Request for Reconsideration that the respondents disagree with the Decision. Reconsideration is not an appeal, nor is it an opportunity to make further submissions in support of a request that has been denied by the Tribunal.

ORDER

17The Request for Reconsideration is dismissed.

18The matter will proceed to mediation on October 16, 2014, as scheduled.