Sheikh v. Gager, 2011 HRTO 1213

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohammad Sheikh

Applicant

-and-

Mike Gager

Respondent

RECONSIDERATION DECISION

Adjudicator: Eric Whist

Date: June 28, 2011

Citation: 2011 HRTO 1213

Indexed as: Sheikh v. Gager

1This is a Request for a Reconsideration filed by the applicant, in respect of a Decision dated May 18, 2011, 2011 HRTO 946 (the “Decision”) dismissing the Application in this matter. The Application was dismissed on the basis that the applicant had failed to file it within the required one year time limit set out in section 34(1)(a) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) and had failed to show that the delay in filing the Application was incurred in good faith as required by section 34(2) of the Code.

2The Request for Reconsideration (the “Request”) is based on the contention that the applicant did file his Application within one year of the last incident of alleged discrimination and as such meets the required one year time limit for filing set out in the Code. The applicant contends that the last incident of discrimination was not in or around the second week of February 2009, as argued by his counsel on the issue of delay, but rather on February 19, 2010. The applicant submits that his counsel forgot to include this incident as part of the applicant’s submissions stating that this incident was “one detail missed by my ex-counsel”.

BACKGROUND

3The Application alleges that the respondent, an inspector from the Office of the Fire Marshall, provided false information when testifying as a witness in an Ontario Court of Justice proceeding on February 19, 2010 and this led to the applicant being convicted and fined under the Fire Protection and Prevention Act 1997, S.O. 1997, c. 4 (“FPPA”). The Application alleges that the respondent did this because he believed information received by two of the applicant’s tenants who are, like the respondent. The alleged information was provided during an inspection of the applicant’s premises in September 2008 for possible violations under the FPPA.

4On October 22, 2010, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) to the applicant stating that the Application appeared to be outside of the Tribunal’s jurisdiction because it appeared to be challenging the decision or outcome of an adjudicative process. The NOID invited the applicant to file written submissions within thirty days of the date of the letter. On October 25, 2010 the applicant provided submissions but failed to address whether the conduct of the respondent in court constituted a service under the Code.

5In an Interim Decision dated February 16, 2011, 2011 HRTO 345, the Tribunal asked for further submissions from the applicant on the specific issue of whether the respondent’s role as a witness at a hearing can be considered a service within the meaning of the Code given the Tribunal’s decisions, particularly Surh v. Toronto (City), 2009 HRTO 1700.

6On March 24, 2011 the applicant’s counsel filed submissions with the Tribunal on behalf of the applicant. The applicant submits he is not alleging that the respondent’s role as a witness in Court should be considered a service but rather that the respondent’s conduct and actions towards him during the investigation of an alleged FPPA violation was a service within the meaning of the Code. The applicant submits the respondent had a duty to act in a non-discriminatory manner at all stages of his investigation of a potential violation and that he did not do so.

7In an Interim Decision dated April 15, 2011, 2011 HRTO 731, the Tribunal accepted the applicant’s clarification that it was the personal respondent’s conduct and actions during his September 11, 2008 investigation that was the basis for his Application. However, the Interim Decision noted that the applicant’s clarification presents another jurisdictional issue. If the incident of alleged discrimination occurred in September 2008, the Application was filed outside the one year time limit for filing an Application set out in section 34 of the Code. The Interim Decision directed the applicant to provide written submissions as to why the delay in the filing of his Application was incurred in good faith.

8The Tribunal received written submissions from the applicant’s counsel dated May 11, 2011. The submissions state that the respondent visited the applicant’s house in September 2008 and December 2008. The submissions go on to state that the applicant’s last interaction with the respondent was in or around the second week of February 2009 after the applicant received a notice to appear in court. The submissions argue that this further contact in February 2009 was an act of discrimination because the respondent could have, at that time, exercised his discretion and decided not to proceed with the charges against the applicant.

9In her submissions the applicant’s counsel explicitly acknowledges that the Application was filed beyond the one year time frame as required under the Code stating that “[a]lthough the Applicant has filed his application approximately six months after the deadline to file, the delay was incurred in good faith”. The applicant’s counsel then goes on to make her arguments as to why the delay in filing the Application was incurred in good faith and why the Tribunal should allow the Application to proceed.

10In my subsequent Decision, I stated that even if I were to accept the applicant’s claim that the last act of discrimination occurred in February 2009, this was still 18 months prior to the filing of his Application and as such he did not meet the requirements to have filed his application within one year of the last incident of discrimination. I then go on to explain in my Decision why I do not accept the applicant’s submission as to why the delay in filing his application was incurred in good faith and dismissed the Application.

11The applicant’s Request for Reconsideration is based on a claim that the last incident of discrimination was actually on February 19, 2010, the day of his trial, and thus six months prior to his Application being filed. The applicant suggests that the respondent inappropriately spoke to him. It appears the applicant suggests that the respondent told him that if he did not admit to the charges the applicant could be subject to a greater fine if found guilty.

ANALYSIS AND DECISION

12Under section 45.7 of the Code the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules of Procedure. The most relevant Tribunal Rule in this case is Rule 26 which reads, in part, as follows:

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.

13The Tribunal has issued a Practice Direction on Reconsideration (Practice Direction) to provide guidance on how the Tribunal exercises its reconsideration powers. The Practice Direction states, in part, that:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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.

14Having reviewed my Decision and the materials before me, I am not satisfied that the applicant has met the requirements for Reconsideration as set out in the Tribunal’s Rules. I do not find that the applicant meets the requirements set out in Rule 26.5 and, in particular 26.5(a) which states that in order to grant a reconsideration I need to be satisfied that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

15I find that the information now being provided about a further alleged incident of discrimination is information the applicant could reasonably have provided earlier as part of his submissions on delay. It is significant, in my view, that the submissions of the applicant’s counsel on delay are detailed and thorough. The submissions lay out an alleged series of incidents of discrimination. They specifically state that the last alleged incident of discrimination took place in February 2009. The submissions clearly accept that the Application was filed beyond the required one year time frame. The submissions then present a number of specific arguments as to why the Tribunal should accept that the delay was incurred in good faith.

16I am of the view that it is reasonable to conclude that the applicant could have and should have been able to present all of his arguments on delay through the initial submission process. The suggestion that a significant incident of discrimination was overlooked is not a compelling or extraordinary circumstance that outweighs the public interest in the finality of Tribunal decisions and orders. The suggestion that this further incident of alleged discrimination was somehow overlooked by the applicant’s counsel is, in effect, a deficiency in the presentation of the applicant’s case that the applicant is now attempting to repair.

17The Request for Reconsideration is denied.