HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marisa Valle Applicant
-and-
Faema Corporation 2000 Ltd. and Mike Di Donato Respondents
RECONSIDERATION DECISION
Adjudicator: Josée Bouchard Date: July 26, 2017 Citation: 2017 HRTO 948 Indexed as: Valle v. Faema Corporation 2000 Ltd.
WRITTEN SUBMISSIONS
Faema Corporation 2000 Ltd. and Mike Di Donato, Respondents Caterina Licata, Counsel
Introduction
1On May 26, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 588, upholding the Application. The respondents have asked the Tribunal to reconsider its Decision.
BACKGROUND
2As preliminary matters, the Tribunal made the following orders:
a. denied the respondents’ request for adjournment; b. granted the applicant’s request to add Mike Di Donato as a respondent to the Application; c. granted the applicant’s request to amend the Application to change the grounds of discrimination claimed from “gender identity” to “sex” and from “ethnic origin” to “creed” and to add the ground of “reprisal” to the Application; d. denied the respondents’ request to dismiss the Application pursuant to section 45.1 of the Code.
3The Tribunal’s Decision found as follows:
a. The personal respondent was the applicant’s employer. b. The personal respondent engaged in a course of vexatious comments that were religious and gender based. c. The comments were not isolated but made throughout the course of the applicant’s entire employment period and amounted to a course of conduct. d. The applicant is of the Roman Catholic faith and she deeply holds personal convictions or beliefs connected to her faith. e. The personal respondent knew or ought to have known that his offensive religious and gender based comments were inappropriate in the workplace and unwelcome by the applicant. The personal respondent knew of the applicant’s Catholic faith. The personal respondent also knew that the comments were unwanted and offensive to the applicant as she regularly told him so. f. The conduct or comments were made in the workplace. g. The personal respondent told the applicant that he wanted her to terminate all the racialized employees and the applicant did not comply. From that initial request and refusal to comply, the personal respondent began retaliating against the applicant by regularly asking her to stay home and eventually terminated her. h. The applicant was subjected to serious wrongful behaviour sufficient to create a hostile or intolerable work environment and the comments poisoned the applicant’s work environment based on the following factors: the comments were made in a public setting and some of the comments were heard by co-workers. The personal respondent repeated comments that he knew were offensive while he was at all material time the applicant’s employer and the directing mind, President and sole shareholder of the Faema Corporation 2000 Ltd.. Even though the applicant voiced her objections to the offensive comments, the personal respondent simply dismissed her concerns. i. The comments or conduct were contrary to sections 5(1), 5(2), 7(2) and 10(1) of the Code.
THE REQUEST FOR RECONSIDERATION
4The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:
a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. b. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. c. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.
5Rule 26.4 of the Tribunal’s Rules of Procedure states as follows:
A party who has been served with a Request for Reconsideration need not file a response with the Tribunal unless the Tribunal directs that a response is required.
6The Tribunal did not direct the applicant to file a response.
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, effective as of January 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 respondents have not met the burden of establishing any of the threshold criteria justifying reconsideration.
12As indicated above, the respondents rely on Rule 26.5 (a), (c) and (d). In summary, they submit as follows:
a. The refusal to grant the respondents an adjournment to permit new counsel to properly prepare for the hearing, including properly brief the personal respondent, amounted to a gross injustice and a denial of the right to proper legal representation and natural justice. b. In dealing with the request for the adjournment, the adjudicator did not give any or sufficient weight to the age of the personal respondent, his apparent state of confusion and the need for him to receive proper representation particularly in light of the fact that he was being added as a personal respondent for the first time, with personal liability. In the circumstances, the denial of the request was unnecessarily technical, unjust and unfair. The denial of the adjournment in the circumstances amounted to a denial of natural justice. c. The grounds in the Application were amended at the hearing from discrimination based on "ethnic origin and gender identity" to discrimination based on "sex and creed”. These amendments were substantive and warranted granting the adjournment so that these amendments might be properly addressed and evidence adduced in relation thereto. d. The Tribunal made errors in principle and law in accepting in its entirety the evidence of the applicant in all respects, without regard to the financial motives of the applicant and the inconsistencies in the grounds relied upon for discrimination both before and after the amendments. e. In dealing with the Application, the Tribunal failed to appreciate or give any consideration to the fact that both personal respondent and the applicant are of the same ethnic origin and religion; accordingly, the suggestion that the applicant was discriminated against on the basis of her "creed" as a Roman Catholic is not credible, is very anomalous and ought to have raised questions in the mind of the Tribunal as to the true motivation of the Application. f. The Tribunal had no basis for finding that the answers of the respondent were inconsistent. g. A careful review of the analysis and the references to evidence in the Decision can only conclude that even if the alleged conduct was reprehensible, it did not form the basis for a finding that there was discrimination on the basis of creed or sex. h. The Tribunal exceeded its jurisdiction by awarding 2 weeks salary. To the extent that the applicant was entitled to any further remedy beyond the Employment Standards Act arising out of the termination which related to the required notice (or pay in lieu of notice), such remedies are available through the courts in actions for wrongful dismissal. i. The award of $25,000.00 to the applicant is grossly disproportionate, excessive and punitive. j. The Tribunal accepted all evidence from the applicant and rejected the evidence of the respondent notwithstanding that in 60 years of operation the respondent has never been accused of any breaches.
The Denial to Grant the Adjournment Request, Granting the Amendment Request and Adding the Personal Respondent
13Rule 26.1 of the Tribunal’s Rules of Procedure provides that a party may request reconsideration of a final decision of the Tribunal. A decision will only be considered a final decision where the decision has the effect of finally determining the substance of the dispute or a central element of the dispute between the parties. See for example Ontario Human Rights Commission v. Ontario Teachers’ Federation, 1994 CanLII 10578 (ON CTGD), 19 O.R. (3d) 371.
14In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal considered at length the question of when a decision should be considered final for the purposes of the reconsideration power. After carefully considering the policy issues and the relevant authorities the Tribunal concluded:
As a general principle, having regard to the approach taken in other forums as well as the above discussion, it is reasonable to view a “final decision” as one that disposes of some or all of the central issues in the complaint as between the parties. This general principle will take on a more precise shape as the Tribunal applies it to cases before it.
15Having considered these authorities, I have concluded that the decisions to deny an adjournment request, to grant a request to amend the Application and to add the personal respondent as a party were not final ones. I find that these decisions did not dispose of the entirety of the complaint. Not being final decisions, they cannot be the subject of a reconsideration request. See Galuego v. Kensington Health Centre, 2009 HRTO 49. For these reasons the Request for Reconsideration related to the adjournment request, the request to amend the Application and the request to add the personal respondent is dismissed.
Request for Reconsideration of Final Decision
16I now turn to the other basis for the reconsideration request. In support of their Request, the respondents essentially repeat arguments made orally and in writing before the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.
17The respondents have not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.
18I am not convinced that any findings made in the Decision are in conflict with established jurisprudence.
19It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist, above, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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. I find that the submissions in this Request amount to additional arguments on issues already fully canvassed before the Tribunal.
20The 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 respondents clearly disagree with the conclusions of the Tribunal, I am satisfied that their submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.
21In sum, I find that the respondents have 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.
Dated at Toronto, this 26th day of July, 2017.
“Signed By”
Josée Bouchard Vice-chair