Bryczkowski v. Sim & McBurney - Sim Lowman Ashton & McKay LLP, 2016 HRTO 609

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Bryczkowski

Applicant

-and-

Sim & McBurney - Sim Lowman Ashton & McKay LLP

Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw

Date: May 6, 2016

Citation: 2016 HRTO 609

Indexed as: Bryczkowski v. Sim & McBurney - Sim Lowman Ashton & McKay LLP

WRITTEN SUBMISSIONS

Laura Bryczkowski, Applicant

Self-represented

Introduction

1On March 16, 2016, the Tribunal issued its Decision in this Application, 2016 HRTO 339 (“Decision”), dismissing the Application. The applicant requests in her Form 20 Request for Reconsideration (“reconsideration request”) that the Tribunal reconsider its Decision.

2By way of background, the applicant is a former employee of the respondent. The applicant commenced a prior Application, 2014-18705-I (“prior Application”), against the respondent, which the parties settled at a mediation/adjudication on August 31, 2015. The applicant signed Minutes of Settlement, which included a full and final release (“release”). The parties also signed a Form 25 Confirmation of Settlement (“Form 25”), which was filed with the Tribunal.

3The applicant subsequently asked the Tribunal to revoke the Minutes of Settlement and the Form 25, alleging that the mediator/adjudicator used undue influence during the mediation/adjudication, and that she signed the Minutes of Settlement under duress.

4Ultimately after various other steps, the applicant filed this Application, a teleconference preliminary hearing took place, and my Decision in that preliminary hearing is the subject of this reconsideration request.

THE REQUEST FOR RECONSIDERATION

5The applicant’s reconsideration request gives the following grounds contained in Rule 26.5 of the Tribunals Rules of Procedure as to why the Tribunal should reconsider its Decision:

a. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and

b. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

6More specifically, the applicant alleges:

a. I made the arbitrary assertion that the sum of money offered to the applicant at the mediation/adjudication was significant;

b. I omitted in my reasons the fact that the applicant wrote to the Tribunal on September 3, 2015, and asked to be provided with the particulars of her mediator;

c. I omitted in my reasons the fact that the applicant told me during the preliminary hearing that between September 1 and 11, 2015, she made numerous calls to the Human Rights Legal Support Centre asking for assistance and legal advice, and that they told her everything was final and nothing could be done for her, which she alleges was not true;

d. I changed her submissions to something entirely different when I stated that the mediator/adjudicator told her she would have to prove she had a disability whereas she actually said that he told her she would have to prove with case law that her injury qualified as a disability;

e. I misstated her submission by saying the mediator expressed his opinion that the respondent’s offer was great, when she alleges it was way more than that – that the mediator made an arbitrary, unilateral decision that the respondent’s offer was more than enough for the applicant, and that he for the rest of the mediation “acted” on it and advanced only the one settlement option;

f. I failed to take into account the applicant’s submissions regarding bias, although she acknowledges I acknowledged them;

g. I omitted the applicant’s submission that she rejected the respondent’s offer twice before the mediation/adjudication;

h. I mischaracterized her submission when I said the mediator’s conduct was limited only to explanations regarding possible outcomes of the mediation and that it was way more than that;

i. My conclusion that it was open to her to proceed to a hearing and not sign the Minutes of Settlement could be turned around - the mediator could have ended the mediation in the face of the applicant feeling overwhelmed and intimidated by the process;

j. I asserted that the applicant did not show that the settlement did not amount to sufficient and fair consideration for signing the release and in the same paragraph I said it was not the Tribunal’s role to assess the appropriateness of a settlement;

k. I failed to explain whether I considered the applicant’s submission that she lived in a communist regime and was afraid of people in power;

l. I stated that the applicant admitted she understood that any legal matter when it comes to a hearing is in the hands of an adjudicator, but that in her submissions she stated that the mediator did not talk about the outcome of any legal matter, but specifically the applicant’s matter; that he threatened her that she would lose or get less than the respondent offered; and that the mediator’s bias was evident and that is why she capitulated and signed the Minutes of Settlement;

m. I was mistaken when I stated the applicant retreated from her position that the mediator lied to her;

n. I cited a case in which it states that mediation is an exercise in encouraging parties to achieve compromise and reach settlement terms, when her submissions prove that the mediator’s conduct was an exercise in forcing her to sign the Minutes of Settlement, not to compromise; and

o. I either altered or omitted the majority of her submissions.

THE LAW

7Under 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.

8The Tribunal has issued Rules governing 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). Most relevant to this Decision is Rule 26 which states:

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.

9The Tribunal’s Practice Direction on Reconsideration includes the following statements:

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.

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.

ANALYSIS AND CONCLUSIONS

11I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

12As indicated above, the applicant relies on Rule 26.5 (c) and (d).

13The applicant alleges that my decision is in conflict with established jurisprudence, in contravention of Rule 26.5(c). However, the applicant does not explain this conflict with established jurisprudence or procedure, nor am I convinced that any findings I made in the Decision are in fact in conflict with established jurisprudence or procedure. The applicant identified the cases of Wedderburn v. Air Liquide Canada, 2010 HRTO 691, 1018429 Ontario Inc. v. Fea Investments Ltd., 1999 CanLII 1741, and Westwood Shipping Lines Inc. v. Geo International Inc., 1999 CanLII 7652, as support for her position that the mediator knowingly misrepresented facts about the legal procedure at the Tribunal and that she relied on that to her detriment. She refers to these three decisions as ones in which it was determined that fraudulent misrepresentation is a reason to set aside Minutes of Settlement. However, the applicant did not argue fraudulent misrepresentation during the summary hearing, and significantly she also fails to explain how my decision is in conflict with any of these three decisions in which no fraudulent misrepresentation was found.

14The Tribunal also stated in Sigrist 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. While the applicant clearly disagrees with the findings and conclusions in the Decision, I am satisfied that her submissions in this reconsideration request do not establish that my Decision conflicts with established jurisprudence. In addition, even if I am wrong, the applicant must also show that the proposed reconsideration involves a matter of general or public importance, which she has failed to do.

15The applicant also requests that I allow the reconsideration request because there are other factors that exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions. I address specifically some of the applicant’s reasons for the request, set out in paragraph 6, above, in the following paragraphs. However, many of the reasons in the applicant’s request are not factors that outweigh the public interest in the finality of Tribunal decisions, and in essence are factual disputes, and I have not addressed those. The reasons in the Decision need not reflect all the facts and arguments that are raised in a proceeding, but rather must reflect the basis on which I reached my decision.

16The applicant’s assertion in para. 6(a) that I arbitrarily decided that the settlement amount was significant goes hand in hand with my assertions, to which the applicant also refers in para. 6(j), that she did not show that the settlement did not amount to sufficient and fair consideration for signing the release and that it was not the Tribunal’s role to assess the appropriateness of a settlement.

17First, I acknowledge that the applicant asserts that although I said she had received settlement money, she has not received it yet. I asserted in my Decision that the applicant was paid a significant sum. That is my opinion based on my experience as a Vice-chair and mediator.

18However, that is a different and separate issue from whether or not the applicant was able to show that what she agreed to was not “sufficient and fair”. There may well be a broad range of settlement amounts that would meet the standard of being “sufficient and fair”, and it is not the Tribunal’s role to assess the specific amount. As such, it is not incorrect to state that it is not the Tribunal’s role to assess the appropriateness of the settlement. The Tribunal’s assessment in my view is limited to deciding whether the applicant can show that settlement was not sufficient and fair, without assessing the appropriateness beyond that. In this case, the applicant was not able to show that the settlement was not sufficient and fair.

19I have reviewed carefully the applicant’s complaints in para. 6(b) through (h) and 6(k) and 6(o) that I misstated or omitted her evidence. I do not agree with her characterization of my review or handling of her submissions. I have reviewed her assertions with respect to the submissions she alleges I omitted, and they would not change the Decision in any material way. I have included in my Decision the evidence that was relevant to making it. With respect to the applicant’s submissions, specifically with respect to my misstating what she said, it is clear that the applicant does not agree with my Decision and my restatement of her submissions, but this also does not change my Decision.

20Specifically with respect to the applicant’s submission that she did not retreat from her assertion that the mediator lied to her, my notes clearly reflect that the applicant in fact did retreat from her position. The applicant in her reply submissions stated that she was not saying that the mediator was not telling her the truth that she could lose her case, but that she objected to the manner in which he told her.

21The applicant also takes issue with the fact that I failed to explain why she would accept an offer she had rejected twice before that day, as set out in para. 6(g). It is not my role to explain why she would do that. However, parties accept offers at different times for different reasons, particularly on the day a hearing is scheduled to begin.

22In sum, 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 reconsideration request is denied.

Order

23The Application is dismissed.