HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Amber Lougheed
Applicant
-and-
Little Buddies Preschool Centre and Tammy Brochert
Respondents
RECONSIDERATION DECISION
Adjudicator: Daniel Randazzo
Indexed as: Lougheed v. Little Buddies Preschool Centre
WRITTEN SUBMISSIONS
Little Buddies Preschool Centre and Tammy Brochert, Applicant
Anthony Leardi, Counsel
Introduction
1The respondents seek reconsideration of my Decision dated July 5, 2015, 2015 HRTO 909, only with respect to the issue of remedy and the amount of compensation that was ordered in light of my findings of discrimination and reprisal.
2For the reasons set out below, I find that the respondents have not established the existence of any of the criteria in Rule 26.5 of the Tribunals Rules of Procedure (“Rules”) that would cause me to reconsider my Decision.
THE DECISION BEING CHALLENGED
3The Application filed under section 34 of Part IV of the Human Rights Code, R.S.O.1990, c. H.19, as amended, alleged that the respondents discriminated against the applicant with respect to employment because of sex (pregnancy) and family status and reprisal.
4By Decision 2015 HRTO 909, I upheld the Application, in part, finding that the respondents’ decision to terminate the applicant’s employment was influenced by the fact that the applicant was pregnant and finding that the decision to terminate the applicant’s employment was a reprisal for the applicant seeking an accommodation for her pregnancy. In light of these findings, I directed the respondents to pay to the applicant $10,000.00 in general damages and $5,587.00 (equivalent to three months’ pay) in lost wages.
APPLICABLE PRINCIPLES
5In 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 Tribunal has made a decision in a case, parties are entitled to treat the matter as completed and final, subject to limited exceptions.
6The circumstances in which a Request for Reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s Rules:
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.
7The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Parties may ask the HRTO to reconsider a final decision. The HRTO may also reconsider a decision on its own initiative where it considers it appropriate.
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.
Examples of situations where the HRTO has refused a request for reconsideration are where:
the request asks for review of an interim decision which does not finally decide the party’s rights or interests;
the request repeats arguments the party has made at the hearing or in written submissions;
a party disagrees with and wishes to challenge a finding of fact, including findings made about the credibility of witnesses;
a party wishes to raise new arguments that were not made, but could have been made at the hearing or in written submissions;
a party received notice that an application could be dismissed as abandoned if steps were not taken, but did not follow the Tribunal’s directions by the deadline.
Examples of situations where the HRTO has reconsidered its decision are:
where a party, through no fault of its own, did not receive notice of a hearing or request for submissions; or
where exceptional factors exist that outweigh the public interest in the finality of decisions including inconsistencies in the HRTO’s case law.
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. 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.
THE REQUEST FOR RECONSIDERATION
9The respondents seek reconsideration under Rule 26.5(c). The respondents submit that the remedy awarded is in conflict with established jurisprudence, Arunachalam v. Best Buy Canada, 2010 HRTO 1880. Specifically, the respondents submit that given the short-term nature of the applicant’s employment, the fact that the applicant’s own conduct contributed to her termination, the lack of bad faith on the part of the respondents and the evidence of good faith on their part, the general damage award should be $1,000.00 and the award for lost wages should be $866.20, the equivalent to two weeks’ pay. In the words of the respondents, the general damage award should be in the “lower end of the range not in the middle of the range”.
ANALYSIS
10As noted above, I am dismissing the Request for Reconsideration as the respondents have failed to establish the existence of any of the criteria in Rule 26.5(c) of the Tribunal’s Rules that might lead to reconsideration of the Tribunal’s decision. A reconsideration request under Rule 26.5(c) must establish that the decision in is conflict with established jurisprudence and the proposed reconsideration involves a matter of general or public importance. Reconsideration is not available simply because a party disagrees with the Tribunal’s Decision, and it is not an opportunity for a party to reargue a case.
11The respondents submit that the award for general damages and lost wages, considering the short-term nature of the applicant’s employment, the fact that the applicant’s own conduct contributed to her termination, the lack of bad faith on the part of the respondents and the evidence of good faith on their part, is too high. The respondents suggest that the award for damages is in conflict with Arunachalam, above.
12The quantum of compensation is a discretionary award and the impact of the discretionary acts must be viewed in the context of each case. Although case law can be used as a guide, no two cases are identical. Many, if not all, of the factors referenced in respondents’ reconsideration request are considered in the Tribunal’s jurisprudence and were canvassed in the Decision. The respondents have not advanced sufficient facts which support a finding that the quantum of compensation is in conflict with established case law. Further, and perhaps more importantly, the respondents have not advanced any argument which supports the conclusion that the request for reconsideration raises a matter of general or pubic importance.
ORDER
13For the above reasons, the respondents’ Request for Reconsideration is dismissed.
Dated at Toronto, this 28th day of January, 2016.
“Signed by”
Daniel Randazzo
Member