Dacosta v. 2383914 Ontario Inc., 2015 HRTO 1276

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hayley Dacosta

Applicant

-and-

2383914 Ontario Inc. o/a Crabby Joe’s Tap and Grill and Shad Yearwood

Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: September 23, 2015

Citation: 2015 HRTO 1276

Indexed as: Dacosta v. 2383914 Ontario Inc.

WRITTEN SUBMISSIONS

2383914 Ontario inc. o/a Crabby Joe’s Tap and Grill and Shad Yearwood, Respondents

Terry Celestini., Representative.

1On July 28, 2015, the Tribunal issued its Decision in this Application, 2015 HRTO 1002, upholding the Application. The respondents have asked the Tribunal to reconsider its decision.

background

2The Tribunal’s Decision concluded that the applicant had experienced discrimination on the basis of sex in the workplace and remedial orders were made.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons: why the Tribunal should reconsider its Decision because one or more witnesses that could have been called were not. The respondents also disagree with the findings of fact that were made.

DECISION

4Under 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.

5The 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 (Practice Direction on Reconsideration, January 2008 amended June 2008). Most relevant to this Decision is Rule 26 which states:

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.

6The Tribunal’s 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.

7As 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.

8I find that the respondents have not met the burden of establishing any of the threshold criteria justifying reconsideration.

9The respondents rely on Rule 26.5 (a). They submit that two witnesses who observed some of the incidents at the heart of the dispute were not called as witnesses. One of these is now available for the hearing and the hearing should be re-opened to consider his evidence.

10The respondents Request is denied. There is no indication from the submissions of the respondents that the evidence of these witnesses would be determinative of the issue which is a higher standard at this stage than merely being relevant. More importantly in order for the Tribunal to re-open the hearing the respondent must show that these are new facts which could not be reasonably obtained earlier. The evidence of a witnesses known to the respondents from the beginning because they were employees at the time does not constitute new facts which were not reasonable available to the respondents at the time of the hearing.

11In sum, I find that the respondents have not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.