Swift v. Matrix Group Publishing Inc., 2015 HRTO 89

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ned Swift Applicant

-and-

Matrix Group Publishing Inc. Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw Date: January 21, 2015 Citation: 2015 HRTO 89 Indexed as: Swift v. Matrix Group Publishing Inc.

WRITTEN SUBMISSIONS

Ned Swift, Applicant Wade Poziomka, Counsel

Introduction

1On November 24, 2014, the Tribunal issued its Decision, 2014 HRTO 1690, finding discrimination against the applicant on the basis of disability. On December 22, 2014, the applicant requested a reconsideration of the decision.

THE REQUEST FOR RECONSIDERATION

2The applicant’s reasons for requesting reconsideration are:

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

3More specifically, the applicant argues:

a. I relied on the length of the applicant’s service in determining damages for loss of income; and b. I stated the applicant gave no reasons why I should apply a Nova Scotia case to this case when determining damages.

the law

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.

626.5. 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.

7The 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.

8As 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.

9The 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.

decision

Length of Service

10The applicant argued that it was an error to place reliance on the applicant’s length of service to determine his wage loss. As the applicant points out, the Court of Appeal at para. 2 of Ontario Human Rights Commission v. Impact Interiors Inc., 1998 CanLII 17685 (ON CA), [1998] O.J. No. 2908, made it clear there need not be “congruence between the compensation for loss of wages and the duration and quality of the complainant’s employment”.

11The Court of Appeal continues, quoting from Piazza v. Airport Taxicab (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281, that:

[…] the purpose of compensation is to put complainants in the position they ‘would have been in had the discriminatory [conduct] not occurred.

12However, in addition to my reference to the applicant’s length of service, I stated that the applicant’s work performance issues would have resulted in termination even in the absence of the discriminatory reason for termination. Since the purpose of compensation is to put the applicant back in the position he would have been in but for the discriminatory conduct, my finding that this was not an appropriate case for wage loss does not change.

Consideration of Other Provinces’ Case Law

13With respect to the applicant’s submission that he gave reasons with respect to applying a Nova Scotia case, I agree that the applicant provided reasons by referring to the Nova Scotia case. My decision however referred to the fact that the applicant did not provide reasons why I should apply either the Nova Scotia case or a British Columbia case rather than follow Ontario case law. I considered his arguments with respect to the application of both the Nova Scotia and British Columbia cases.

14Finally the applicant also argues that in the Decision I indicate that his representative referred to a case without citation which in the applicant’s view is inaccurate. This may or may not be so but in the end as indicated above I considered the applicant’s arguments and the cases he specifically put before me . I declined to follow either the Nova Scotia or British Columbia cases but rested my conclusions on cases decided in Ontario by this Tribunal. It is not clear to me how the Decision can be said to be a surprising departure from the Tribunal’s established jurisprudence. See Sigrist and Carson, above.

Other Grounds

15The applicant has not provided any other factors that would outweigh the public’s interest in the finality of the Tribunal’s decisions.

16The applicant clearly disagrees with my decision, but reconsideration is not granted because of disagreement with an adjudicator’s conclusions.

17In 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.