Adria Panucci v. Seller's Choice Stockdale Realty Ltd., 2016 HRTO 480

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adria Panucci

Applicant

-and-

Seller’s Choice Stockdale Realty Ltd. and Ronald Christopher Stockdale

Respondents

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: April 15, 2016

Citation: 2016 HRTO 480

Indexed as: Panucci v. Seller’s Choice Stockdale Realty Ltd.

WRITTEN SUBMISSIONS

Seller’s Choice Stockdale Realty Ltd. and Ronald Christopher Stockdale, Respondents

Gerry Smits, Counsel

Introduction

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), in which she alleged discrimination and harassment in respect of employment on the basis of sex and sexual solicitation by a person in a position of authority and able to confer a benefit.

2The Application was granted by way of a decision dated November 23, 2015 (2015 HRTO 1579).

3On December 22, 2015, the Tribunal received a Request for Reconsideration (Form 20) from the respondents along with submissions in support of the Request. The applicant has not been called upon to file a Response to the Reconsideration Request and she has not done so.

4The respondents argue that reconsideration is warranted in this case on the grounds that there are new facts or evidence that could potentially be determinative of the case that could not reasonable have been obtained earlier, the decision is in conflict with established jurisprudence or Tribunal procedure and the reconsideration involves a matter of general or public importance and, finally, that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

5For the reasons that follow, the Request for Reconsideration is denied.

Request for Reconsideration

6Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions:

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.

7Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration 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).

8Most relevant to this decision is Rule 26 which reads, in part, as follows:

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 and orders.

9The 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.

10As 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.

11The respondents have based their request on Rule 26.5(a), (c) and (d).

New Facts or Evidence

12In their submissions in support of this ground of reconsideration, the respondents do not suggest that there are new facts or evidence that they wish to raise that could be determinative of the issues in dispute that they did not raise during the course of the hearing.

13Rather, the respondents argue that the failure of the applicant to provide documentary evidence in support of some of her assertions ought to have led the Tribunal to draw an adverse inference and reject her testimony in respect of those assertions.

14Specifically, the respondents suggest that the applicant’s failure to submit documents in support of her testimony that she contacted the police and to provide medical records to verify that she suffered harm as a result of the personal respondent’s conduct should have led the Tribunal to reject her testimony on those points as lacking credibility.

15In paragraphs 63 and 64 of the Decision, the issue of the police report was address as follows:

The respondents argued that I should draw a negative inference from the applicant’s failure to produce the police report referenced in her original Application. The applicant testified that she did not have a report merely an incident number and that she spoke to the police at the same time that she filed her complaint about the personal respondent to the Real Estate Council of Ontario, a copy of which was introduced into evidence.

It is apparent that the applicant was reporting her allegations in a number of different fora and the absence of the police report is not determinative of whether the events described took place, as alleged..

16Similarly, the issue of the absence of supporting medical documentation was addressed in the Decision in paragraphs 92 through 96:

The applicant testified that the impact of the personal respondent’s conduct on her was severe. She felt under stress while at the brokerage. It tainted her relationships at the firm and with those in it. She felt a loss of self-respect as a result of what she felt was demeaning conduct towards her by someone who was in a mentoring role.

In addition, although the applicant testified that she needed to and did seek medical attention generally and, more specifically, therapy to assist her in dealing with pre-existing medical conditions as a result of the harassment and discrimination she experienced, although provided with the opportunity to do so, she elected not to call any evidence from the therapist or provide any medical evidence to support her oral testimony.

In my view, the objective seriousness of the harassing conduct that I have found to have occurred is significant. Unwelcome comments about one’s appearance or feeling that one has to submit to unwanted physical contact in the workplace are, by any objective standard, demoralizing in their impact and would leave most people feeling devalued and under stress.

In this case, given that the source of the unwanted comments and touching was a person the applicant relied upon for advice and who was in a mentoring relationship, the conduct is even more serious, when viewed objectively.

Having considered the compensation awarded in the cases referenced in Smith v. Rovers Rest (supra), the objective seriousness of the conduct, together with the applicant’s evidence of the impact on her, I find payment of monetary compensation in the amount of $15,000.00, for damage to the applicant’s dignity, feelings and self-respect, within 60 days of the date of this Decision, is appropriate in this case.

17The arguments raised by the respondents do not appear to concern new evidence or facts not already before the Tribunal but reiterations of positions expressed throughout the course of the litigation that were addressed in the body of the Decision.

Decision is in conflict with established case law

18In submissions in support of this ground, the respondents raise issues with respect to the treatment of evidence. They argue that the applicant’s account of the events was not accepted on certain points, that the personal respondent’s account of what transpired was not specifically rejected and that some of the factual findings are inaccurate. As a result, they argue the conclusion that the applicant experienced harassment contrary to the Code is unsupported by the evidence and ought to be reversed.

19While the evidence of the applicant was not accepted on all points, the Decision makes it clear which aspects of the evidence of the parties was accepted. It is also the case that the conclusion that an infringement of the applicant’s rights under the Code occurred was based on certain findings of fact, some of which were acceded to by the personal respondent in his own testimony.

20Finally, whether the final face to face meeting between the applicant and the personal respondent took place before or after a resignation document was tendered and whether money given by the respondent business to the applicant, and still owing at the time of the hearing, was a loan or an advance, is not determinative of the issue of whether the applicant was subjected to a course of conduct that the personal respondent knew or ought to have known was unwelcome.

21As such, I am not persuaded that the Decision is in conflict with established case law and the finding that the applicant’s Code protected rights were infringed should be reversed.

Factors Exist that Outweigh the Finality of the Tribunal’s Decision

22The respondents argue that their ability to recover money owing to it by the applicant was impacted by the delay in receiving a Decision from the Tribunal, the respondent business has suffered reputational damage as a result of the decision and the monetary compensation award is excessive.

23I note that the applicant left the respondent business in 2012. The debt owing to the business existed at the time she left and could have been, and apparently was, pursued by the respondent business through other avenues prior to the hearing into this matter in 2014. It is not apparent that the potential outcome of this human rights Application by the applicant would cause the respondents to discontinue their efforts to collect the debt owed to them.

24The severity of the impact of the Decision on the respondents is not, in and of itself, a factor that would lead the Tribunal to reconsider its finding or remedial award or outweigh the public interest in the finality of Tribunal decisions.

25Finally, the Decision, in paragraphs 87 through 96, explains the rationale for awarding the applicant the quantum of monetary compensation ordered.

26Given the above, I find no basis to grant reconsideration of the Tribunal’s Decision of November 23, 2015.

27The Request is denied.