Tulul v. King Travel Can Ltd., 2011 HRTO 1513

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jemal Tulul

Applicant

-and-

King Travel Can Ltd.

Respondent

AND BETWEEN:

Jemal Tulul on behalf of Gamela Hagos

Applicant

-and-

King Travel Can Ltd.

Respondent

RECONSIDERATION DECISION

Adjudicator: Alison Renton

Date: August 15, 2011

Citation: 2011 HRTO 1513

Indexed as: Tulul v. King Travel Can

1On April 6, 2011, the respondent filed a Request for Reconsideration of the Tribunal’s Decision dated March 2, 2011 (“the Decision”) which upheld both Applications which had been filed on March 3, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”). The respondent had earlier filed a letter on April 5, 2011 setting out submissions in relation to its Request for Reconsideration.

2Of the Rule 26.5 criteria listed on the Request for Reconsideration form, the respondent relies upon c) “The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance”. The respondent also relies upon d) “Other factors exist that outweigh the public interest in the finality of Tribunal decisions”.

3In support of these grounds, the respondent submits that the Tribunal made a number of errors with respect to the evidence that was given at the hearing including: misconstruing it; failing to consider or give weight to some of the respondent’s evidence; completely disregarding evidence; and giving unreasonable weight to some of the applicants’ evidence.

4Further, the respondent submits that the Tribunal:

• Made an error in law when it used the rule in Browne v. Dunn against the respondent;
• Took the action of a foreign government or agency based and governed by that foreign country’s rules and wrongly held the respondent responsible, contrary to the rules of natural justice;
• Failed to consider the fundamental basis on which the Application was based (the denial of a visa) and inappropriately allowed the basis to be changed (to the denial of a MOFA approval code) to the prejudice of the respondent; and
• Issued remedies that were punitive for a small business and amounted to penalties for the respondent’s witnesses.

5The respondent asserts that the foregoing “makes it appear that the learned Adjudicator had made up her mind before the commencement of the hearing”. The respondent requests that the Decision be overturned and the Applications dismissed. In the alternative, it seeks to have the financial remedies reduced to $5,000.00 and $2,000.00, the e-learning requirement removed or in the alternative the time period extended to 6 months.

6A party 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 applicant or the complainant.

7For the reasons that follow, the Request for Reconsideration is dismissed.

ANALYSIS

8Section 45.7(1) of the Code provides that “[a]ny party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules”. The Rules elaborate on the conditions and requirements of such a request. Rule 26.1 of the Tribunal’s Rules of Procedure states that “[a]ny party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision”.

9Pursuant 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.

10It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which 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 do 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.

11As noted in para. 1 above, the respondent has filed its Request beyond the 30 day limit required in Rule 26.1. The respondent’s counsel, who filed the Request for Reconsideration, submits that his “client’s principal and the instructing officer had been out of the country and were unable to obtain instructions”. The respondent submits that “the delay is minimal, perhaps a day or two, and not prejudicial to the Applicant”.

12The Tribunal has, in some instances, denied a Request for Reconsideration which was filed outside the 30 day period provided for in Rule 26.1. See der von Felix v. International Financial Data Services (Canada), 2010 HRTO 263. Despite the respondent’s failure to file within 30 days of the date of the Decision, I have considered the arguments raised by it.

Decision in Conflict with Established Jurisprudence or Tribunal Procedure

13I do not find that the Decision was in conflict with established jurisprudence or the Tribunal’s Rules of Procedure.

14The respondent has not provided or cited any jurisprudence with which it claims the Decision conflicts. The respondent argues that the Tribunal made “an error in law” when it used the rule in Browne v. Dunn against the Respondent.

15As mentioned in paras. 12 and 78 of the Decision, the principles of Browne v. Dunn were explained to the parties before the evidence commenced as well as during points of the hearing. As noted at para. 79 of the Decision, the Tribunal concluded that the respondent’s counsel, like the defence counsel in the Ontario Court of Appeal decision in R. v. Hall, 2010 ONCA 421 at para. 11, made a tactical decision not to cross-examine the applicant and one of the applicant’s witnesses on several critical points when contradictory evidence was going to be presented by the respondent’s witnesses.

16As set out in the Tribunal’s Practice Direction on Reconsideration, in para. 8 above, a reconsideration is not an appeal or an opportunity to repair deficiencies in the presentation of its case.

17With respect to the respondent’s assertion that the Tribunal took “the action of a foreign government (Saudi Arabia) or agency based and governed by that foreign country’s rules and wrongly held the respondent responsible, contrary to the rules of natural justice”, the respondent has not submitted any jurisprudence in support of this point.

18Furthermore, and more importantly, the Tribunal was clear in the Decision that it was not making findings about the opinions and restrictions, if any, made by the agency or the Government of Saudi Arabia, but rather the actions of the respondent with respect to the services it was providing to the applicants in Ontario. At para. 80 of the Decision, the Tribunal wrote:

I appreciate that the respondent, in applying to the agency for the MOFA approval code, was dealing with an agency located in another country and that the agency and the other country may have entry restrictions or opinions that are inconsistent with or in conflict with Ontario’s laws. However, in this case, I do not find that the opinions and restrictions held by the agency or the Government of Saudi Arabia are relevant to the determination of the case before me because I find that the comments made by Mr. Ahmed and Mr. Khan and the two guarantees that they required pertaining to these applicants were discriminatory.

19The respondent submits that the financial remedies the Tribunal ordered in the two Applications were “significantly punitive for a small business”. Further, it submits that a “penalty” was imposed against the respondent’s two witnesses when the Tribunal ordered them to take, within 30 days of the Decision, the e-learning module “Human Rights 101” that is found on the Ontario Human Rights Commission’s website without considering that the witnesses were not personally named and without taking into account their personal circumstances and availability during the prescribed time period.

20Again the respondent has not submitted any case law in support of its position that the financial remedies awarded were punitive or too high for the respondent. If the respondent’s financial ability to pay an award was an issue (and leaving aside whether that is a factor to be considered in the amount that is awarded by a Tribunal), then certainly at the hearing the respondent ought to have presented financial information about its ability to pay, which it did not. It knew that the applicants were seeking at least $40,000 as a financial remedy.

21With respect to the order that the respondent’s witnesses take the free e-learning module, which the respondent submits is a “penalty”, the respondent has not submitted that this order is inconsistent with case law or the Tribunal’s procedures. I note that sections 45.2(1) and (2) of the Code, which are set out in para. 102 of the Decision, permit the Tribunal to make orders for persons to take human rights training even if no order under that paragraph was requested. There is no evidence before the Tribunal that Mr. Ahmed and Mr. Khan were unavailable in the 30 day period from the date of the Decision. While on the Request for Reconsideration form, and in providing an explanation as to why the request was being filed outside the 30 day time period the respondent wrote, “My client’s principal and the instructing officer had been out of the country and were unable to obtain instructions”, neither Mr. Ahmed nor Mr. Khan are identified as being “my client’s principal and the instructing officer”.

22The respondent submits that “the fundamental basis of the Application which was [the] denial of Visa” and that the “learned Adjudicator’s findings that the Application is varied to MOFA from visa is a fundamental change and is without authority and caused significant prejudice to the Respondent”.

23Rule 1.7(c) of the Tribunal’s Rules of Procedure allows the Tribunal to amend any filing, including an Application. As set out in paras. 18, 74 and 75 of the Decision, during the course of the hearing, and in fact during the applicant’s cross-examination, it was clarified by all parties that what had been denied was the MOFA approval code rather than the visas. The witnesses for both parties testified and the parties made submissions about the MOFA approval code being the issue rather than the Visa. The respondent did not object or take issue at the hearing with the focus being on the MOFA approval code, rather than the Visa, and reconsideration is not an opportunity to now challenge a point that was not challenged during the hearing.

Other Factors Exist that Outweigh the Public Interest in the Finality of Decisions

24The respondent submits that the Tribunal made a number of errors with respect to the evidence that was given at the hearing including: misconstruing it; failing to consider or give weight to some of the respondent’s evidence; completely disregarding evidence; giving unreasonable weight to some of the applicants’ evidence.

25As stated above, a Request for Reconsideration is not an opportunity to restate or re-argue evidence already advanced and considered. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34. Once the parties to an application 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 set out in Rule 26.5.

26As set out in the Decision, the hearing was held over the course of two days, in two different cities, and the parties were represented by counsel. The Decision sets out, in detail, the evidence that it heard from the witnesses and made various findings of fact and credibility based upon the evidence. I do not find that there were errors in respect of the evidence or that evidence that was “misconstrued”. The respondent’s allegations that the Tribunal made a number of errors with respect to the evidence is, in my view, another attempt to argue its case and as such does not fall within Rule 26.5.

27With respect to the suggestion that “it appear[ed] that the learned Adjudicator had made up her mind before the commencement of the hearing”, this assertion can be characterized as an allegation of bias.

28The issue of bias was thoroughly canvassed in Jogendra v. Human Rights Tribunal of Ontario, 2011 HRTO 322. See also Persaud v. Toronto Community Housing Corporation, 2010 HRTO 2550. Further 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 (SCC), [1978] 1 S.C.R. 369 at p. 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-marker], whether consciously or unconsciously, would not decide fairly.’

29I am not satisfied that the alleged bias does meet the standard and test set out above such that an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that the issues had been pre-judged as opposed to having been considered in light of the evidence presented.

30The Decision, as set out above, was based upon the evidence that was tendered at the hearing and the submissions made by the parties. Certainly findings of fact and findings of credibility were made and the respondent can disagree with or dispute those findings. However, the claim that the issues were pre-determined is only now being raised after a Decision upholding the Applications has been issued.

31I 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. Accordingly, the Request for Reconsideration is denied.