Archer v. Dobson, 2015 HRTO 85

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Archer

Applicant

-and-

Alec Dobson

Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw
Date: January 21, 2015
Citation: 2015 HRTO 85
Indexed as: Archer v. Dobson

WRITTEN SUBMISSIONS

Donna Archer, Applicant

Wade Poziomka, Counsel

Introduction

1On December 19, 2014, the Tribunal issued its Decision, 2014 HRTO 1810, finding a contravention of a settlement.

THE REQUEST FOR RECONSIDERATION

2The applicant’s reasons for requesting a reconsideration are:

• the decision is in conflict with established case law or Tribunal procedure; and
• there are factors that outweigh the public interest in the finality of Tribunal decisions.

3More specifically, the applicant identifies the following main reasons why the Tribunal should reconsider its Decision:

a. The Tribunal misapplied the appropriate factors to consider in assessing general damages; b. The Tribunal improperly assessed the intention and conduct of the respondent to minimize the amount of damages contrary to established, binding jurisprudence; c. The Tribunal improperly relied on a status quo of other cases to award a low general damage award; and d. It is in the public interest that settlements are binding and breaches of settlement are treated seriously, and applying the proper factors and issuing decisions on the basis of the merits of the case before the Tribunal are in the public interest and outweigh the interest in the finality of the Tribunal decisions.

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 of Procedure, which govern 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 March 2010). Rule 26 states in part:

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.

8The Tribunal also has stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 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.

9The Tribunal also stated in Sigrist and Carson, above that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules.

Misapplication of Appropriate Factors

10The applicant alleges my decision is in conflict with Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 (ON SCDC), [2005] OJ No. 377 (“Smith”) and quotes the following from paragraphs 10 and 11:

It may also be helpful to bear in mind that the Code is remedial legislation, aimed at remedying the effects of discrimination, not focused on punishing the individuals involved in discriminatory practices. It is not the motivation or knowledge of the employer that is in issue; it is the effect of the discrimination on the complainant. This is highlighted most notably in cases of constructive dismissal, such as Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (S.C.C.).

It has been held consistently that intent or motive to discriminate is not a necessary element of discrimination. In Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd. [“O’Malley”], supra, at para. 14, the court said:

The proof of intent, a necessary requirement in our approach to criminal and punitive legislation, should not be a governing factor in construing human rights legislation aimed at the elimination of discrimination. It is my view that the courts below were in error in finding an intent to discriminate to be a necessary element of proof.

11First, the appeal in Smith was from a Tribunal finding that there was no discrimination. The Divisional Court overturned the Tribunal’s finding because the Tribunal appeared to rely on the fact there was no intent to discriminate, and intent is not an appropriate factor to consider.

12In the instant case, I was not tasked with finding whether or not there was discrimination. My task was to determine whether or not there was a contravention of a settlement which is a contract between the parties. Therefore I disagree with the applicant’s characterization of my comments about the reasons for the contravention as being contrary to the principle outlined in Smith.

13The applicant has provided no case law to establish that it is improper for the Tribunal in a contravention of settlement application to consider the circumstances surrounding the contravention and therefore has not provided any basis to support the Decision being in conflict with established jurisprudence.

14The applicant also submits I should have considered the factors in Sanford v. Koop, 2005 HRTO 53 (“Sanford”) in reaching my decision, but the applicant’s argument does not take account of the fact that this is a breach of settlement Application and not an Application filed under section 34 of the Code – the circumstances in Sanford. This was an Application filed under section 45.9 (3) of the Code and a fair reading of the Decisions under that section indicate that different considerations apply when considering the appropriate remedy for a breach of settlement.

15The applicant is mistaken that I did not consider the effect of the contravention on her health. The applicant’s complaint includes that the serious effect on her mental health warranted a different result. Although I did not make explicit reference to some of the evidence I heard with respect to the effects of the breach of settlement on the applicant’s mental health, it was because I was cognizant of the applicant’s privacy. However, the applicant relied to a significant degree on evidence of alleged mental health consequences for her at the hearing and again in the request for a reconsideration. It is clear that I considered this evidence in my assessment of the case.

16The applicant has not provided any other factors that would outweigh the public’s interest in the finality of the Tribunal’s decisions.

17The applicant clearly disagrees with my decision, but reconsideration is not granted because of disagreement with an adjudicator’s conclusions.

18In conclusion, I find that the applicant has 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.