Moncur v. Beach Grove Golf and Country Club, 2015 HRTO 242

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cathy Moncur

Applicant

-and-

Beach Grove Golf and Country Club

Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: February 26, 2015

Citation: 2015 HRTO 242

Indexed as: Moncur v. Beach Grove Golf and Country Club

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2014 HRTO 764 dated May 29, 2014, which dismissed this Application.

2On June 27, 2014, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The 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).

5The 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.

The rules for reconsideration are found in Rule 26 of the Rules of Procedure. A request for reconsideration will only be granted if the request meets one of the requirements in Rule 26.5.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated 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.

8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

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.

9As a result, I need to determine whether the material filed by the applicant in support of the Request for Reconsideration satisfies any of the criteria set out in Rule 26.5. The applicant relies upon the criteria identified in Rule 26.5(a), (c) and (d).

10Essentially, the reconsideration request raises six issues. First, with regard to the first breach of settlement allegation, the applicant submits that the adjudicator erred in failing to find that the respondent was required to adopt a policy prepared by a third party consultant. I agree with adjudicator’s analysis of both the clause of the settlement and the consultant’s report on the respondent’s policy. While the settlement term did give the consultant the authority to “finalize” the policy, the consultant’s report confirmed that the respondent’s proposed policy was in compliance with its legal obligations and industry standards, but then went on to “suggest” improvements that the respondent could consider “in its sole discretion”. I agree with the adjudicator that the settlement did not obligate the respondent to adopt the consultant’s suggestions.

11Second, the next breach of settlement allegation relates to a term that gave the applicant the right to review board minutes and identify references to her that she found objectionable. The respondent was then supposed to bring a motion to have these references expunged. While the applicant did review the minutes, because of her head injury she found the task overwhelming and could not complete it. As an accommodation, she asked the respondent to use the “find and replace” function in Word to identify references to her in the minutes and expunge them, with one specific exception. The respondent did not do this, and took the position that the settlement required the applicant to identify specific references in the minutes that she found objectionable. I agree with the adjudicator that this is what the settlement term required, and it was not a general term to expunge all references or to require the respondent to seek them out.

12The applicant further takes issue with a statement at para. 53 of the Decision that the respondent did not have a duty to accommodate the applicant’s disability-related needs in the implementation of the settlement terms. Whether or not this statement is correct, the duty to accommodate is a cooperative process, and the adjudicator notes that the applicant did not make any attempt to have her husband or anyone else assist her in identifying the objectionable references. Accordingly, in the end I agree with the adjudicator that the term was not breached, even if the respondent did have a duty to accommodate.

13Third, the final breach of settlement allegation relates to a requirement for the respondent to submit certain documents to the Ontario Curling Association for review and comment. The respondent did so, but only after the 2009-2010 curling season had already begun. The applicant says this was in breach of the settlement term. The adjudicator found it was not, because there was no time requirement in the settlement. I agree. While there is case law at this Tribunal holding that, even in the absence of a specific timeline in a settlement, actions may nonetheless need to be taken within a reasonable period of time (see for example Pipiska v. Superior Workforce Solutions, Corp., 2014 HRTO 1489), the Decision indicates that the respondent submitted the required documents to the Ontario Curling Association about five months after the settlement had been concluded. In my view, this is not an unreasonable amount of time.

14Fourth, the applicant raises an issue as to the determination of the first of two reprisal allegations. The first reprisal allegation relates to the suspension of the husband from the respondent club for a physical interaction with a female club member. This became the subject of a civil suit against the club, in which the Statement of Claim expressly alleges that the suspension was a retaliatory attempt to get the applicant to drop her human rights application. The civil action was defended by the club’s insurer and settled at mediation. The applicant’s lawyer in the civil action prepared a release for the settlement that excluded the human rights application. It appears that counsel for the insurer did not dispute the terms of the release provided. The adjudicator finds that the release is not binding on the respondent club, which was not consulted by the insurer, and dismissed the first reprisal allegation under s. 45.1 of the Code and as an abuse of process. The applicant takes issue with the adjudicator’s findings regarding the validity of the release and the dismissal of the first reprisal allegation on the basis that this allegation was already dealt with as a result of the settlement in the civil action.

15Whether or not the first reprisal allegation was correctly dismissed on the basis of the settlement in the civil action, I agree with adjudicator’s finding that proceeding with this allegation is barred by s. 34(11) of the Code, since essentially the same allegation was raised in the civil action under the guise of the tort of intimidation and compensation was sought by the applicant as one of the two plaintiffs in the civil action arising out of the same factual allegations that are the basis of the first reprisal allegation.

16This Tribunal has held that s. 34(11) of the Code applies to bar a human rights application where a civil action raises a claim and seeks a remedy on the basis of the same factual circumstances that underlie the claim under the Code and that are broad enough to encompass the Code violation, whether or not the Statement of Claim makes express reference to the violation of a Code right or expressly seeks a remedy under the Code: see Hallett v. Grey Bruce Health Services, 2009 HRTO 403; Farlow v. Hospital for Sick Children, 2009 HRTO 739; McMuldroch v. Honda of Canada Manufacturing, 2009 HRTO 2007; Navlahki v. Progressive Islamic Sunni Vohra Community of Canada, 2009 HRTO 1963.

17I further note that while the civil action was initiated on March 24, 2010, and by then the human rights application already had been filed on December 31, 2009; s. 34(11) of the Code has been interpreted to apply to situations where the civil action is commenced after the human rights application: see Borden v. Toronto Grace Health Centre, 2010 HRTO 1109; Grogan v. Ontario (Human Rights Tribunal), 2012 ONSC 319 (Div.Ct.).

18Fifth, the second reprisal allegation relates to the expulsion of the husband, and by extension the applicant whose membership depended on her husband. The husband was expelled because he brought the lawsuit against the club, seeking damages totalling $350,000. I agree with the adjudicator’s finding that it is not reprisal contrary to the Code for the club to have expelled the husband for having brought a civil action against it.

19Finally, the reconsideration request states that there were further reprisal allegations raised by the applicant that the adjudicator failed to consider. This is not consistent with the record. Specifically, in an Interim Decision dated September 4, 2012 (2012 HRTO 1664) the adjudicator states at para. 9:

At the hearing, the applicant also requested that the outstanding allegations of reprisal in her Application be withdrawn, and that her Application be amended to include an additional allegation of reprisal that occurred in April 2010 [namely the expulsion allegation]. I granted the applicant’s request to withdraw the outstanding allegations of reprisal in her Application. I also decided to grant the applicant’s request to amend her Application on the condition that the new reprisal allegation is heard expeditiously. (italics added)

20For all of the foregoing reasons, I am not satisfied that the adjudicator’s Decision is in conflict with established jurisprudence or Tribunal procedure or that other factors exist that outweigh the public interest in the finality of Tribunal decisions. The applicant further has not established that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

21As a result, the applicant’s Request for Reconsideration is denied.