Sheldon v. St. Marys Ford Sales Ltd., 2017 HRTO 1557

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Sheldon

Applicant

-and-

St. Marys Ford Sales Ltd., Kipp Edwards and Robert Cade

Respondents

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw
Date: November 23, 2017
Citation: 2017 HRTO 1557
Indexed as: Sheldon v. St. Marys Ford Sales Ltd.

WRITTEN SUBMISSIONS

Lisa Sheldon, Applicant
Sean Flaherty, Counsel

St. Marys Ford Sales Ltd., Respondent
David Foster, Counsel

Introduction

1On May 3, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 497, upholding the Application. The applicant asked the Tribunal to reconsider its Decision.

BACKGROUND

2In addition to a finding against the individual respondent, Mr. Cade, I found against the corporate respondent as follows:

• it discriminated against the applicant by not returning her to her former job.
• its investigation did not meet the standard of reasonableness to ensure it would achieve the Code-mandated responsibility to provide a discrimination-free work environment.

3I ordered the following monetary remedies against the corporate respondent and Mr. Edwards:

• Wage loss from March 30, 2016 to September 15, 2016 at $13.00 per hour totalling $12,383.80, less any short term disability benefits or other replacement income, not including the income from her part-time job;
• $15,000 in injury to dignity, feelings and self-respect that included $10,000 for the failure to return the applicant to her former job on her return to work and $5,000 for the inadequate investigation.

4In order to determine the appropriate financial remedy and the issue of whether reinstatement was appropriate, I found that the applicant was constructively dismissed when the corporate respondent did not return her to her former position on her return from a maternity leave. I did not make an order for reinstatement in light of the evidence.

THE REQUEST FOR RECONSIDERATION

5The Request for Reconsideration provides the following reasons 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.

THE LAW

6Under 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.

7The 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.

8The 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.

9As 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.

PARTIES’ POSITIONS

10The applicant takes the position that:

a. I should order reinstatement and order the corporate respondent to pay the applicant her wages from April 1, 2016 to the date upon which it reinstates her;

b. In the alternative, I should reconsider and set aside my decision that constructive dismissal took place on August 31, 2015 and find that the effective date of the constructive dismissal was May 3, 2017, the date of my Decision. She further argues I should order the corporate respondent to pay the applicant her wage loss from April 1, 2016 to May 3, 2017 and make a further wage loss order for a 15 month period beginning May 3, 2017.

11Specifically, the applicant takes exception to my finding that because the respondent did not terminate the applicant that she was constructively dismissed when she was not returned to her original job on her return to work.

12The applicant also takes exception to my finding with respect to her wage loss finding and my determination that reinstatement was not an appropriate remedy.

13The applicant takes the position that my finding that the applicant was constructively dismissed runs contrary to established case law, namely the section of the Employment Standards Act, 2000 (“ESA”) that states that a woman must be restored to the position she held before she went on maternity leave. She further takes the position that my decision conflicts with established Divisional Court, Court of Appeal and Supreme Court of Canada cases on constructive dismissal. In particular, the applicant argues that my decision conflicts with Farber v. Royal Trust Co., [1997] S.C.R. 846 (“Farber”) at para. 34 that states:

A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or a condition of an employment contract without providing reasonable notice of that change to the employee. Such action amounts to a repudiation of the contract of employment by the employer whether or not he intended to continue the employment relationship. Therefore the employee can treat the contract as wrongfully terminated and resign which, in turn, gives rise to an obligation on the employer’s part to provide damages in lieu of reasonable notice. (Emphasis added). In the last sentence of this passage approved by the Supreme Court of Canada, it is clear that what gives rise to an obligation to pay damages in lieu of notice is the act of resignation by the employee.

14The applicant cites cases that have followed Farber, including Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 and Saltsov et al. v. Rolnick, 2010 ONSC 914 at paras. 27-29 as standing for the proposition that the employer’s repudiation of the employment contract does not terminate the employment, but it is the employee who decides if she wants to remain employed or treat the contract as at an end and seek damages, and it is only when an employee decides to resign that she is entitled to seek damages.

15The applicant asserts in this case she never accepted the respondent’s repudiation of the employment contract and therefore my finding that she was constructively dismissed is in conflict with the cited case law. For these reasons, I should reconsider my decision in accordance with Rule 26.5(c) or (d).

16The applicant further asserts that as a result of my decision she lost her employment, which is a result that could have a chilling effect on others commencing Applications at the Tribunal.

17In its response to the Request the respondents, St. Marys Ford Sales Ltd. and Kipp Edwards (“the respondents”), state that the Tribunal can interpret the ESA but does not administer it. In addition, reinstatement is a discretionary remedy. It submits that my decision not to award reinstatement was not contrary to established jurisprudence or Tribunal procedure.

18The respondents submit that while the applicant takes issue with my applying the common law concept of constructive dismissal in order to determine the applicant’s wage loss, this is not inconsistent with prior case law, and from a factual and legal perspective it is in accordance with the Ontario Court of Appeal’s decision in Wronko v. Western Inventory Services Ltd., 2008 ONCA 327 (“Wronko”). In that decision the plaintiff was given one month by his employer to decide if he would accept a demotion or resign. He refused to report to the new job and instead sued for constructive dismissal. The Court, in considering this issue, reviewed the decision in Farber and concluded that:

The Farber decision must be decided in light of these facts [set out in the preceding paragraph]. The Supreme Court in that case was not purporting to outline the rights and obligations of parties in circumstances where an employee registers an unequivocal rejection of an intended fundamental change to the terms of his employment and where the employer permits him to continue to work according to the existing terms without giving notice that refusal to accept the new terms will result in termination.

19The respondents point to the evidence given at the hearing that the Applicant, through a letter from her legal counsel dated September 29, 2015, advised that the new position in which she had been placed was unacceptable and that a complaint would be filed if the matter was not resolved in a satisfactory manner. The respondent states that I correctly found that the Applicant "did not accept the new job voluntarily" and in fact, through clear communication, signaled her intention not to willingly accept the new position.

20The respondents also state that in my decision, I stated that the "applicant has not been terminated." It opines that I relied on the concept of constructive dismissal to determine the appropriate quantum of damages that flowed from the respondents’ breach of its Code obligations by not returning the applicant to her pre-maternity position.

21The respondents further submit that in Sigrist and Carson v. London District Cathotic School Board et al., 2008 HRTO 34, the Tribunal considered what is meant by "conflict with established jurisprudence" pursuant to Rule 26.5(c) and stated that "there must be a conflict with "established" jurisprudence or procedure in the sense that there is a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules." The respondents submit that a party seeking reconsideration must establish more than just disagreement with the application of the jurisprudence to her particular case.

22The respondents state that the applicant does not cite any Tribunal case law or procedure that conflicts with the finding on lost wages, and further, provides no explanation as to how the decision conflicts with established Tribunal jurisprudence. It also states that the applicant provided no jurisprudence to demonstrate that my determination of the effective date of wage loss was contrary to settled law, or that the Tribunal's finding with respect to mitigation was similarly incorrect. She merely reiterates that she was not constructively dismissed.

23The respondents submit that the Applicant has not satisfied the requirements set out in Rule 26.5(c) to support her claim for reconsideration.

24The respondents also submit that the applicant has not satisfied the requirements for a reconsideration under Rule 26.5(d). The respondents state that this is the applicant’s attempt to re-litigate the wage loss findings, as evidenced by the fact that her reconsideration request included a request for reinstatement with ongoing compensation for wage loss, or in the alternative a request that I establish a later effective date for the constructive dismissal.

ANALYSIS AND CONCLUSIONS

25I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

26As indicated above, the applicant relies on Rule 26.5(c) and (d), which I repeat here for ease of reference:

(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.

27A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. It appears to some extent that the applicant is attempting to re-litigate my wage loss findings, which is clear from the alternate remedies she seeks in this request. This is not an opportunity to do so.

28In addition, in order for me to reconsider my decision, I would have to find that there is a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. With respect to the applicant’s request for an alternate method of calculating her wage loss, she does not cite any Tribunal case law or procedure that conflicts with my wage loss finding nor my finding with respect to the commencement date of the wage loss.

29Factually, with respect to my finding that the applicant was constructively dismissed, I note that the applicant took the position in closing that she did not voluntarily accept the new job, a position I adopted in my decision. This position was supported by her lawyer’s letter to the respondents in which she voiced her objection to the new position. It was undisputed that the applicant returned to work at the corporate respondent, albeit in a different position than she had before her maternity leave. These facts bring this case squarely within the ambit of Wronko. In any event, the applicant has not demonstrated that my decision is a clear and surprising departure from settled law.

30I also note that the respondents correctly explained the reasoning behind my finding that the applicant was constructively dismissed, which resulted from the applicant’s request that she be reinstated and the undisputed fact that she had not been returned to her old position. In order to consider whether the applicant should be reinstated as she requested, it was necessary for me to find that she had been constructively dismissed. I then considered the reinstatement remedy she requested, and based on all the evidence, I concluded it was not appropriate.

31The applicant argues that my finding of constructive dismissal brought her employment at the corporate respondent to an end, which is erroneous. At para 175 of my decision, I stated: “Based on all the evidence, I find reinstatement to her old job is not an appropriate remedy in this case.” I made my finding purely in order to assess the applicant’s wage loss and to permit me to consider her requested remedy of reinstatement to her old position, which in this particular case was not appropriate. The complicating factors in this case were the events which followed the applicant’s constructive dismissal from her old position; namely that she nonetheless returned and worked in a new position, presumably on a without prejudice basis, and then went on a medical leave from that new position which continued in effect at the time of the hearing. While I recognize that some of the evidence and my findings, for example at paragraphs 173 and 174 may have been relevant considerations with respect to the viability of a return to work in the new position, that was simply not in issue before me. My finding on reinstatement did not and could not have applied to the new position because she continued to be employed in that position and on medical leave from it at the time of the hearing. To the extent the applicant may now be alleging she was wrongly terminated from the new position that was not and could not have been an issue before me at the hearing given she continued to be employed in that position and on medical leave from it at the time of the hearing.

32It is clear the applicant disagrees with my conclusion, but I am satisfied that her submissions do not establish that my decision either conflicts with established jurisprudence or that there are any other factors that exist that, in the Tribunal’s opinion outweigh the public interest in the finality of Tribunal decisions.

33In 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 Request is denied.