Cenanovic v. 2332489 Ontario Inc., 2015 HRTO 1671

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adnan Cenanovic

Applicant

-and-

2332489 Ontario Inc. operating as the Bourbon St. Grill and Weiwei Zhu

Respondents

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: December 11, 2015

Citation: 2015 HRTO 1671

Indexed as: Cenanovic v. 2332489 Ontario Inc.

WRITTEN SUBMISSIONS

Adnan Cenanovic, Applicant

Jean-Alexandre De Bousquet, Counsel

Introduction

1This Application is about a job advertisement posted on Kijiji for female servers at the Bourbon St. Grill, a fast food restaurant in a food court (the “job ad”).

2The case was bifurcated into liability and remedy.

3In a decision on liability dated December 19, 2014, 2014 HRTO 1811, I held the respondents contravened the applicant’s rights under sections 5 and 23 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) when they advertised for female servers on Kijiji (the “Liability Decision”).

4Although the job ad was found to be discriminatory, I held the applicant failed to establish that he was denied the opportunity to be considered for the job because: (a) no one, male or female, was hired in response to the job ad; (b) the respondents hired a male server the day before the ad was posted on Kijiji; (c) there was insufficient evidence that the respondents received the applicant’s job application; and (d) there was a significant issue as to whether the applicant’s job application was bona fide.

5In a decision on remedy dated June 22, 2015, 2015 HRTO 833, I held systemic remedies were not required because the respondents had addressed the discrimination by developing a policy on human rights principles, providing the policy to staff, and posting it at the workplace (the “Remedy Decision”). I declined to make an order for monetary compensation because the applicant failed to provide evidence in support of such an order. All of the evidence provided by the applicant related to the impact of being denied the job – a claim that I had dismissed.

6On July 22, 2015, the applicant filed a Request to Reconsider both the Liability Decision and the Remedy Decision on the following grounds:

a. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and

b. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

7I accept that the applicant has the right to reconsider both decisions. He is entitled to wait for a final decision on remedy before filing his Request for Reconsideration.

The Facts

8The individual respondent is an immigrant from China. He immigrated to Canada in 2006. He owns the Bourbon St. Grill.

9The applicant is an immigrant from Bosnia. He came to Canada in 1998. His work experience prior to coming to Canada and in Canada is in the restaurant industry. He has worked as a bartender and server, and has performed management duties in restaurants in Canada for many years.

10The applicant saw the job ad for the server position on November 16, 2013 and replied to Kijiji that day. On November 17, 2013, the applicant conducted an internet search on human rights lawyers. He met with a lawyer on November 18, 2013. On the same day, he called the Bourbon St. Grill and spoke to the individual respondent. After inquiring about the server position, the individual respondent said “female only” two times and hung up the phone. The applicant tape-recorded the conversation.

11The Application was filed on January 14, 2014.

12The applicant has never worked in a fast food restaurant before or after filing the Application.

analysis

Test for Reconsideration

13Under 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.

14The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance 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.

15The Tribunal’s Practice Direction on Reconsideration states Reconsideration is a discretionary remedy: there is no right to have a decision reconsidered by the Tribunal. It affirms that Reconsideration is not an appeal or an opportunity for a party to change the way he or she presented their case.

Grounds for Reconsideration

16The applicant submits the Decisions should be reconsidered because they are contrary to established case law and involve matters of general or public importance. The applicant states there are other factors that outweigh the public interest in finality of Tribunal decisions.

17Within these broad claims, the applicant makes three distinct arguments. One, he submits that I failed to consider the phone call on November 18, 2013 as a separate infringement of the Code. Two, he states it was contrary to Tribunal jurisprudence to find a violation of the Code and not award a remedy to the applicant. Three, the applicant argues that I failed to consider the respondents’ intentional and discriminatory behaviour and failed to correct the broader harm of widespread male discrimination in the service industry. Each of these arguments will be addressed separately.

Failure to Consider the Incident on November 18, 2013

18The applicant argues that I failed to consider the phone call to the individual respondent on November 18, 2013 as a separate allegation of discrimination. The applicant submits the respondents violated his rights when the individual respondent told the applicant that he should not apply because he is a man.

19In my view, this submission is really an attempt by the applicant to re-argue his case and is not an appropriate basis for Reconsideration.

20Even if it was an appropriate basis upon which to request Reconsideration, I would dismiss this claim. In the Liability Decision, I did not accept that the applicant’s job application was bona fide. My reasons for this finding are set out in paragraph 44 of the Liability Decision. This finding applies to the applicant’s phone call to the individual respondent on November 18, 2013. The call was tape-recorded and took place on the same day that the applicant sought legal advice. That advice was sought within 48 hours of seeing the job ad. In my view, it is more likely than not that the call was made for the purpose of collecting evidence in support of the complaint about the job ad and not as a bona fide inquiry about the job. As such, there is no basis upon which to find the applicant was adversely impacted by the call, a necessary precondition for a finding of liability under the Code and for awarding monetary compensation.

Contrary to Established Jurisprudence not to Award a Remedy

21The applicant argues it is contrary to established jurisprudence to make a finding of discrimination and not order monetary compensation. The Tribunal’s remedial authority is set out in section 45.2(1) of the Code. It states:

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 who 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.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

22It is well-established in our jurisprudence that human rights law is remedial. The human rights system is a compensatory system designed to remedy discrimination that has occurred and prevent it from occurring in the future. The purpose of an award of monetary compensation is also compensatory: it is to put an applicant back in the position that he or she would have been in had the discrimination not occurred.

23There is no right to monetary compensation after a violation of the Code has been found. It is in the discretion of the Tribunal whether to make such an order. To receive an award of monetary compensation, an applicant must prove that he or she has experienced harm caused by the violation, including injury to dignity, feelings and self-respect.

24The discrimination in this case is the posting of a job ad. I found it contravenes section 23 of the Code to indicate job qualifications on the basis of a prohibited ground of discrimination in a job ad. In its most simple terms, it is discriminatory to say “women only” should apply.

25The applicant did not receive monetary compensation for this violation because he failed to give any evidence about the impact of the ad on him. Instead, he gave evidence about the impact of being denied consideration for the job. That evidence was not relevant to the issue of remedy because I had dismissed that claim.

26The applicant submits that in the Liability Decision I acknowledged the harm caused by a job ad that communicates to people they should not apply because of their gender. That is true. However, in order to receive monetary compensation for such harm, there must be evidence. The applicant failed to provide this evidence and as such, I found the impact of the job ad on the applicant was minimal or non-existent. This is likely because he had no genuine interest in the job: the applicant has never worked in a fast-food restaurant.

27In essence, the applicant saw a job ad that offended him. Shortly after seeing the ad, he retained legal counsel to challenge it. The ad was found to be discriminatory. This does not mean that the applicant is entitled to a monetary remedy. He is only entitled to monetary compensation if he was harmed by the ad. I found that he failed to establish such harm.

28In my view, it distorts the principles upon which our human rights system is based to award monetary compensation for a breach of this nature. To hold otherwise would mean that individuals can file human rights applications and receive monetary compensation because they are offended about the things that they see in the world at large and not because they have experienced adverse treatment. It undermines the real harm that is caused by discrimination to provide monetary compensation for a breach of the Code that has a minimal or non-existent impact.

Failure to Address Matters of Public Importance

29The applicant submits that I should reconsider the decisions because the intentional and discriminatory behaviour of the individual respondent was not considered nor was the widespread harm regarding the discrimination men experience in the service industry.

30With respect to the first claim, the applicant argues that the Remedy Decision creates a precedent where an individual can intentionally discriminate and face no consequences. I disagree that the respondents faced no consequences. A finding of discrimination was made against them. There were no systemic remedies ordered against them because they remedied the discrimination before the hearing by developing a human rights policy and training staff. There was no evidence that the respondents advertised for women after the Application was filed. Put simply, there was no need to make further systemic orders against them.

31The applicant states that I failed to consider the fact that the respondents hired two female servers after the male server left the restaurant in June or July 2014. I addressed this in the Remedy Decision and found that without knowing the qualifications of the job applicants, I could not make a finding based solely on the gender of these two hires.

32As far as the widespread problem regarding discrimination against men in the service industry, this issue was not before me. The issue before me was whether the applicant was discriminated against. I found that he was in relation to the posting of the ad, but not in relation to the job itself.

Conclusion

33The Request for Reconsideration is essentially an attempt by the applicant to re-argue matters that were already argued at the hearing or to appeal the Liability Decision and the Remedy Decision. The Tribunal’s jurisprudence is clear that reconsideration cannot be used for this purpose. It is for this reason that the Request for Reconsideration is dismissed.

ORDER

34The Request for Reconsideration is denied.