Persuad v. Toronto Community Housing Corporation, 2010 HRTO 2550

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ghiansaroop Persuad

Applicant

-and-

Toronto Community Housing Corporation, Toronto Civic Employees’ Union Local 416, Derek Ballantyne and Mark Ferguson

Respondents

RECONSIDERATION DECISION

Adjudicator: Kathleen Martin

Date: December 31, 2010

Citation: 2010 HRTO 2550

Indexed as: Persuad v. Toronto Community Housing Corporation

1On June 9, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 1315, in this Application. All of the allegations made against the Toronto Community Housing Corporation (“TCHC”) and Mr. Ballantyne and certain allegations made against the union and Mr. Ferguson were dismissed. The Tribunal determined that the allegations in question had been filed outside the limitation period and that the applicant had not established that the delay in filing was in good faith, within the meaning of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant has filed a Request for Reconsideration (“Request”), along with submissions in support of the Request. On December 3, 2010, the Tribunal staff contacted the applicant to request that he re-file the last page of his submissions as it appeared to be cut off by the facsimile transmission. The applicant responded by filing 16 pages of additional material that appeared to be new materials not previously filed with the Request and not copied to the respondents. On December 6, 2010, the Tribunal wrote to the applicant highlighting the illegible portions of his original submissions and stating that if the original submissions were incomplete, they should be re-sent to the Tribunal by December 10, 2010. At the same time, the Tribunal returned the new material to the applicant. The submissions were not resent to the Tribunal and the time period for re-filing has elapsed.

3A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondents.

4While the decision in question is not a final decision on the merits, it is a final decision with respect to the allegations against TCHC and Mr. Ballantyne. In these circumstances, I find that the Request falls within the Rules, which permit only reconsideration of a final decision.

5Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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.

6The Tribunal’s Practice Direction on Reconsideration provides guidance to the community on the Tribunal’s exercise of its reconsideration powers. It states in part:

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.

7As 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 Applicant’s Submissions

8In the Request, the applicant relies on Rule 26.5 c) and d). The applicant argues that the manner in which the hearing was conducted was in conflict with Tribunal procedures as I heard all of the applicant’s evidence in chief and not just his evidence on delay. In addition, the applicant argues that I improperly assessed the evidence and violated the principles of natural justice or otherwise conducted the hearing unfairly by not allowing him to properly present his evidence, although he does not specify how.

9As a remedy, the applicant asks that the Interim Decision be reconsidered and that I be removed as the Vice-chair for any further proceedings.

Decision in conflict with Tribunal Rules (Rule 26.5 c))

10I do not find that the manner of proceeding was in conflict with the Tribunal’s Rules.

11The Tribunal has a broad mandate to adopt flexible procedures to address issues before it and has the express power to determine and direct the order in which issues will be considered and determined. As set out in paragraphs 3 and 4 of the Interim Decision, the respondents had identified a number of preliminary issues and a concern had been expressed about the lack of particulars in the Application. To address this concern, I had directed that the applicant provide a detailed summary of his proposed evidence. The applicant did not comply with this Direction. It is against this backdrop that the manner of proceeding was addressed.

12I note that the parties had an opportunity to make submissions on the manner of proceeding. The applicant’s only submission was that he preferred the respondents to present their evidence before he be required to present any evidence in the hearing. The other parties agreed that the applicant be permitted to present his evidence in chief on all issues and objected to the applicant’s suggestion that they proceed first in part because they did not fully understand the scope of his allegations due to the absence of particulars. I considered all submissions before determining that I would hear the applicant’s evidence in chief prior to hearing from the parties on any preliminary issues.

13I find that the approach adopted is entirely consistent with the Tribunal’s mandate to adopt flexible procedures and was responsive to the particular circumstances of this case given the lack of particulars in the Application. As a result, the applicant has not satisfied me that this is a proper basis for reconsideration.

Allegations of Bias and Improper Assessment of Evidence (Rule 26.5 d))

14The applicant raises a number of concerns about the conduct of the proceeding.

15The applicant objects to the fact that he had to give his evidence from the witness seat at the front of the hearing room without his friends beside him, whereas the other parties had advisors present beside them during his testimony. The applicant submits this was unfair since he states the respondents’ advisors will be witnesses at a later stage.

16I do not find this is indicative of any unfairness toward the applicant. In general, the Tribunal has a witness provide their evidence from the witness seat without the assistance of their advisor. Conversely, in general, when a party is not being examined they are permitted to have an advisor present as were the respondents in this case. These procedures were adopted in the hearing of the applicant’s case.

17The applicant also takes issue with my walking toward the witness seat and asking him if a signature on a settlement document belonged to him. The applicant views the question posed as a “defence lawyer’s question” and indicative of “stereotyping that blacks are liars”.

18I do not find this characterization to have merit. As the applicant was unrepresented, I posed questions to him throughout his evidence to clarify his evidence, including asking him whether or not he had signed a settlement since I understood the applicant to take issue with the fact that certain grievances had been settled. In this respect, I note that the Rule 1.7(m) expressly provides that the Tribunal may question a witness. I do not accept that approaching the applicant, showing him the document, or questioning of him about the document to be indicative of any unfair and/or discriminatory conduct or inconsistent with the role of a Vice-chair in a Tribunal proceeding.

19The applicant also appears to suggest that I heard the evidence concerning Mr. Davis (an employee of the respondent TCHC) and a tenant representative but did not deal with or even mention the evidence in the Interim Decision. The applicant is incorrect to the extent that he suggests the allegations were not addressed. The summary of allegations contained in paragraph 15 of the Interim Decision include the allegations concerning these individuals, albeit as they relate to allegations made against the respondent TCHC. These allegations were dismissed on the basis of delay.

20The thrust of the applicant’s other submissions relate primarily to the factual findings made. The applicant reiterates his evidence and arguments regarding his delay in filing his Application. While it is evident that the applicant disagrees with the Interim Decision and in particular the determinations made, I find that these submissions amount to an attempt to reargue aspects of matters decided in the Interim Decision. As set out above, the reconsideration process is not an appeal nor an opportunity to reargue a case and accordingly, I find there is no basis to grant reconsideration on the basis of these particular submissions.

21The Request for Reconsideration is denied.

22I also deny the request that I be removed as the Vice-chair for any further proceeding, which I presume means the continuation of the proceeding involving his Application. I have dealt with the substance of most of his objections related to this request above. However, I have also considered whether the bias he alleges meets the standard set out in the caselaw. The legal principles to be applied in considering apprehension of bias are well established. In Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (S.C.C.), [1978] 1 S.C.R. 369 at page 394, De Grandpre J. stated:

…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

23I am not satisfied that the alleged bias does meet the standard such that an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that I would not decide the issue fairly.

24The directions previously given in the Interim Decision continue in effect for the continuation of this Application.