McCarthy v. Caesar’s Plumbing and Heating Ltd., 2015 HRTO 191

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Spence McCarthy

Applicant

-and-

Caesar’s Plumbing and Heating Ltd.

Respondent

RECONSIDERATION DECISION

Adjudicator: Paul Aterman

Date: February 11, 2015

Citation: 2015 HRTO 191

Indexed as: McCarthy v. Caesar’s Plumbing and Heating Ltd.

WRITTEN SUBMISSIONS

Spence McCarthy, Applicant

Paul Champ, Counsel

1The applicant in this Application requests reconsideration of a Decision that was made in his favour. The Decision is 2014 HRTO 1795. In that Decision I made a determination that the applicant was discriminated against and issued an order that included awards of $15,000 as monetary compensation for injury to his dignity, feelings and self-respect and $1204 as lost income.

2Section 45.7 of the Code provides the Tribunal with authority to reconsider its decisions. Rule 26.5 of the Tribunal’s Rules of Procedure provides that 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 and orders.

3The Tribunal’s Practice Direction on Reconsideration states the following:

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.

4The applicant requests reconsideration on two grounds. He argues that the amount awarded for injury to dignity, feelings and self-respect is too low and that this award was based on a wrong understanding of the range of damages the Tribunal awards in cases involving termination from employment. He also argues that the amount I calculated as the applicant’s lost income was wrong and that the calculation was based on a wrong assessment of the average number of weekly hours worked by the applicant when he was employed by the respondent. He argues that even if I had accepted the respondent’s number for the average hours worked, as opposed to his, this would have resulted in a higher award than the amount in the Decision.

5The reasons for the applicant’s request for reconsideration are that the Decision is in conflict with established case law and involves a matter of general or public importance. He also maintains that other factors exist that outweigh the public interest in the finality of Tribunal decisions and orders.

6The respondent has not been asked to respond to this request, but it is aware of it and has requested that the order in the Decision be stayed until the Tribunal has decided the reconsideration request.

7The applicant’s request to reconsider the award for injury to his dignity, feelings and self-respect is denied. The applicant simply disagrees with the outcome and has sought to characterise his disagreement with the amount of the award as an error of law and to reargue his case. It is well established in the Tribunal’s decisions that the reconsideration process is not there for parties to make arguments that have already been considered and rejected. I understand that he may disagree with the outcome, but his recourse is not through a reconsideration request.

8The reconsideration request in relation to the calculation of lost income may raise other issues, because the applicant’s argument is based on the assertion that I misapprehended the evidence and the positions of both parties. This should not be determined without first giving the respondent an opportunity to respond to this issue.

9In relation to this issue the respondent will be given an opportunity to make submissions on whether the applicant has accurately characterised the respondent’s position regarding the average weekly hours worked and earnings of the applicant when he was employed by the respondent.

10In addition, both parties can make submissions on whether, even assuming the applicant to have accurately characterised the respondent’s position regarding the average weekly hours worked and earnings of the applicant, the Tribunal has the authority to revisit its decision on this point through the reconsideration process. Both parties will have 21 days from the date of this Reconsideration Decision to make their submissions.

11The respondent’s request to stay the Tribunal’s order in the interim is denied. This is because the request does not meet the test set out in Phipps v. Toronto Police Service Board, 2010 HRTO 53. In Pelletier v. Andy Myers Lodge, 2014 HRTO 1771, the Tribunal assumes for the purposes of that decision that the Phipps test applies where a party seeks a stay of a Tribunal order pending determination of a reconsideration request. I am prepared to also assume that the Phipps test applies in such circumstances as the present one. Here there is no prospect of the respondent suffering irreparable harm because the applicant – if he succeeds – can only obtain an upward revision of the lost income award. The Tribunal is not going to revise the award downward.

order

12The applicant’s request to reconsider the award for injury to his dignity, feelings and self-respect is denied.

13The respondent’s request to stay implementation of the Tribunal’s order in Decision 2014 HRTO 1795 is denied.

14The parties have 21 days from the date of this Reconsideration Decision to make submissions, in accordance with the directions above, on whether the Tribunal should reconsider its award for lost income in Decision 2014 HRTO 1795.