Jacobs v. Chelsea Home Furniture, 2015 HRTO 995

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Jacobs

Applicant

-and-

Chelsea Home Furniture

Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw

Date: July 27, 2015

Citation: 2015 HRTO 995

Indexed as: Jacobs v. Chelsea Home Furniture

WRITTEN SUBMISSIONS

Robert Jacobs, Applicant

Self-represented

Introduction

1On June 1, 2015, the Tribunal issued its Decision, 2015 HRTO 720, finding that the respondent had not discriminated against the applicant on the basis of disability. On June 30, 2015, the applicant filed a Request for Reconsideration of the decision (“Request”).

THE REQUEST FOR RECONSIDERATION

2The applicant’s reasons for requesting reconsideration are:

There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

3More specifically, the applicant argues that I accepted Ms. Farkas’ testimony even though it was contradictory, and that overall I misapprehended the evidence of the respondents’ witnesses.

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, last amended April 2014). 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

10The applicant relies on Rule 26.5(a) and attaches to his Request a Schedule “A” which purports to set out the applicant’s hours worked for the period from September 30, 2012 through to January 19, 2013, and appears to be a document that was not before me at the hearing. The applicant submits that this is the applicant’s payroll records that were not available during the hearing. The applicant submits the document apparently to contradict the respondent’s evidence that the applicant’s hours were reduced because of his performance.

11This chart does not change my decision. Not only does the applicant not explain why this evidence was not, or could not be, available at the hearing, but in fact payroll records were introduced at the hearing. In addition, the chart sets out the applicant’s hours for a period of time ending a year before he was terminated and is therefore not persuasive in any event.

12The applicant provides no new information that could not have been available at the hearing. Therefore, his Request is denied on that basis alone.

13I note that the applicant contends he was not prepared to defend the issue of his performance at the hearing because the Response stated only that he was terminated for leaving the store unattended. However, he is mistaken. The last line of the narrative Response states the applicant was terminated for leaving the store unattended and “other issues related to overall store duties”. In addition, attached to the Response is an August 19, 2014 letter from Mr. Singh, which further explains the respondent’s position and clearly states that the applicant “was arriving late, and not performing in sales.” This letter also was disclosed in the respondent’s Documents to be Relied Upon at the Hearing. The applicant clearly was aware that his performance would be an issue at the hearing.

14The applicant also alleges he does not have a copy of what I referred to in paragraph 37 as a written record of his performance issues. That document was attached to the Response and also was disclosed in the respondent’s Documents to be Relied Upon at the Hearing. The applicant gave evidence about this document and it is referred to at paragraph 39 of the Decision.

15I also note that the applicant states there was miscommunication during the hearing because I was typing and speaking at the same time. He submits that “questions and answers were asked and answered at the same time”. It is not clear what the applicant alleges. However, as I advised at the hearing, it is normal practice to type notes during the proceeding. It does not interfere with communication, nor does the applicant make any specific allegations that it did so.

16Overall, the applicant clearly disagrees with my decision. However, he has not provided any new facts or evidence, but simply has attempted to re-argue his case by again raising credibility issues with respect to the evidence of the respondent’s witnesses. The Request clearly is an attempt to appeal this decision, which is not the purpose of a reconsideration request, as is set out in the Tribunal’s Practice Decision on Reconsideration.

17In sum, I find that the applicant has not established the existence of any new evidence pursuant to Rule 26.5(a) that would lead to a reconsideration of the Tribunal’s Decision. The Request is denied.