HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelsey Ann Watters

Applicant

-and-

Creative Minds Children Services LTO Daycare

Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: June 22, 2015

Citation: 2015 HRTO 830

Indexed as: Watters v. Creative Minds Children Services LTO Daycare

1The respondent has requested a reconsideration of Decision 2015 HRTO 475, dated April 14, 2015 (”the Decision”). The Decision concluded that the respondent discriminated against the applicant when it terminated her employment. The Tribunal found that the fact that the applicant was pregnant was a factor that led to the termination. The Tribunal found that the applicant was entitled to monetary compensation for lost wages and compensation for injury to dignity, feelings, and self-respect.

2The hearing before the Tribunal was held on October 2 and 3, 2014. The hearing proceeded in the absence of the respondent. The reasons why this happened are fully explained in paragraphs 4 – 12 of the Decision. As noted in the Decision, two earlier hearing dates in July 2014 were adjourned following a last-minute request by the respondent. A request for a further adjournment a few days before the re-scheduled October dates was denied by the Tribunal. The respondent did not subsequently communicate with the Tribunal until this Reconsideration Request. The standard Notice of Hearing sent by the Tribunal explains that the hearing may proceed in the absence of a party who fails to attend a scheduled hearing at the Tribunal.

The Request for Reconsideration

3The Request for Reconsideration (“the Request”) state that the Request is made because there are new facts or evidence and because the Decision is in conflict with established case law or Tribunal procedures. A letter sent with the Request explains that the new facts or evidence consists of concerns the respondent has with the applicant's witnesses who provided testimony at the hearing.

4According to the letter, one of the witnesses was not employed at the time of the termination of the applicant’s employment and so could not have properly given evidence about the termination. I note that the respondent’s submission about this witness is not consistent with information the respondent provided in a Request for Order During Proceedings filed with the Tribunal in May 2014, which indicated that the witness and the applicant overlapped by one month. Secondly, the respondent knew what the proposed evidence of the witness was going to be in advance of the hearing. If it wished to dispute that evidence it should have come to the hearing. The respondent does not explain the nature of her concern with respect to the other witness.

5The Request states that the respondent would like the opportunity to explain why it did not attend the hearing. The respondent refers to scheduling problems that arise from the operation of a day care. I note that these problems were the basis for the re-scheduling of the original July dates. They were also the reasons offered in advance of the request to adjourn the October dates. As noted in the Decision, the respondents had ample time to make the necessary scheduling arrangements to allow the respondent or a representative of the respondent to appear at the Tribunal.

6The respondent’s letter sent with the Request does not explain the basis for the suggestion that the Decision conflicts with established case law or Tribunal procedures.

Conclusions

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.

[8] 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 (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.

9The Tribunal’s Practice Direction on Reconsideration states in part:

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.

[10] In this case, the respondent has not established the existence of any of the criteria in Rule 26 of the Tribunal’s Rules that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.