Madjova v. Toronto (City), 2011 HRTO 2258

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kamelia Madjova

Applicant

-and-

City of Toronto (Parks, Forestry and Recreation Division) and Mary Elmassarany

Respondents

Request for reconsideration

Adjudicator: David Muir

Date: December 16, 2011

Citation: 2011 HRTO 2258

Indexed as: Madjova v. Toronto (City)

WRITTEN SUBMISSIONS

Kamelia Madjova, Applicant ) Self-Represented

1This is an application filed July 22, 2008, under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). On November 9, 2011, the applicant filed a Request for Reconsideration of Decision 2011 HRTO 1829 dismissing the Application.

2Under 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.

3The 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 amended June 2008). Rule 25 of the Tribunal’s Rules of Procedure for Transitional Applications states, in part:

25.1 Any party may request reconsideration of a final decision of the Tribunal within thirty (30) days from the date of the decision.

25.5 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.

4The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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.

5In this case, the Request for Reconsideration relies on Rule 25.5(c). The applicant states generally that the hearing process was too long and unfair, that the applicant was unrepresented and that the adjudicator displayed bias in talking to the parties.

6For the reasons that follow I have concluded that there is no basis for to the applicant’s claim that the hearing of this case or the final Decision was contrary to established Tribunal procedure or jurisprudence.

7The applicant states that the hearing took too long to complete and that I did not adequately explain why so many witnesses were required. The hearing took as long as it did to complete because the allegations of the applicant included a great number of employees and former employees of the respondent. After several discussions with the parties wherein I encouraged the respondent City to reconsider its witness list it did so to some degree by shortening it. However, all of the witnesses called by the respondents were proper and necessary to respond to the allegations made by the applicant. In any event a hearing that takes a long time to complete because of the number of witnesses that are required is not inconsistent with Tribunal procedure.

8The applicant suggests that I have drawn an adverse inference against her because of the number of witnesses that the respondents were required to call. She also states that my conclusion that the allegations of the applicant expanded with the passage of time was incorrect. As regards this first contention, it is based on an inaccurate reading of the Decision. There were issues with what appeared to be a growing number of allegations as it related to the scope of the issues I had jurisdiction to deal with. However, to the extent that there was an adverse inference drawn in relation to the applicant, it was primarily in the extraordinary expansion and embellishment of allegations made in the complaint. The applicant may disagree with my conclusions on this point; however, that is not a proper basis for a reconsideration request.

9The applicant also says the hearing was unfair in that I did not limit the number of witnesses called and the length of the submissions. As indicated above, the number of witnesses was determined by the individuals identified by the applicant as being involved in discriminatory actions. In addition to attempts to shorten the respondents’ list of witnesses, I directed that will-says be provided for many of the respondents’ witnesses and that where appropriate, those witnesses adopt their will-says as their evidence-in-chief. In many instances the witnesses did so and were only cross-examined by the applicant.

10The applicant is correct that the written submissions of the parties were extraordinarily long. But again that is to some degree a function of the length of the hearing and the number of witnesses called by the parties. There was a lot of evidence to deal with and the respondents dealt with the evidence at length in their written submissions. If the applicant felt that she needed further time to respond to their submissions she could have sought an extension of time to respond. She did not and responded with lengthy written submissions of her own. It is not contrary to Tribunal procedure or jurisprudence for the parties to make lengthy submissions at the conclusion of a case.

11The applicant relies on the fact that she was unrepresented and that this was unfair. The applicant cites no particular unfairness that resulted to her other than the inherent difficulty in managing a case involving many witnesses over many months. That said this was a simple case. There were no significant legal issues and as with many cases turned entirely on its facts. The applicant had a series of events in her life to describe and then had an opportunity to hear and question those whom she alleged had discriminated against her about their version of those same events. The applicant rarely seemed to need assistance and, when it was asked for, I did provide assistance of a procedural nature subject to the requirement that the adjudicator, in attempting to assist one party, does not create the appearance of unfairness for the other parties. Counsel for the respondents was restrained and cooperative and rarely objected to the conduct of the applicant except where it was absolutely imperative that she do so. The applicant’s objections were entertained in the same manner as those of the respondents. The evidence, although lengthy, went in smoothly with little apparent difficulty on the applicant’s part aside from her evident frustration when a witness would not agree with her on some point. At the end of the day it is not clear what the applicant is referring to in this regard.

12The applicant suggests that it is “legally unacceptable” to draw an adverse inference from the failure of an unrepresented party to call a witness, “some of which worked for the respondent”. It is not clear who the applicant is referring to as being employees or former employees of the respondent. Adverse inferences were drawn from the applicant attempting to rely upon a witness statement but not calling that person although she had been put on notice by the respondents that they expected her to do so if she intended to rely on the statement. As well I noted that other individuals, patrons of the pool, may have been called to support the applicant’s more extravagant allegations. There is nothing inconsistent with Tribunal procedure or jurisprudence in this regard.

13The applicant states that a critical error was made in not accepting into evidence a log book which would have established a critical fact relied on by the respondent. The critical fact is whether or not a respondent witness, Megan Tanaka, had worked on a certain day or not. The fact that Ms. Tanaka was not working on the day in question was relied on to refute a contention that Ms. Tanaka made a discriminatory remark to or about the applicant at that time. In the context of a case which lasted eight days involving many witnesses, this one fact was not critical to any significant determination. In any case the applicant’s concern is in respect of a finding of fact with which she disagrees. That is not a proper basis for a reconsideration request.

14The applicant states the decision is full of errors. She cites as an example my reference to a witness observing something on “at least one occasion” and later in respect of the same witness and her observation “on a number of occasions”. While these two characterizations are somewhat different, in the end whether the evidence of the witness was that she saw the behaviour once or a 100 times was irrelevant to my conclusion that the evidence of the witness could not be accepted for reasons entirely unrelated to the number of times the behaviour was allegedly observed. Again the applicant takes issue with a finding of fact – this is not a proper basis for a reconsideration request.

15The applicant makes a number of other complaints about the adequacy of my reasons – that I did not deal with all of the evidence and submissions with respect to all of the witnesses is a major complaint. The jurisdiction of the Tribunal in section 53(3) cases is determined by the allegations in the complaint. The applicant is correct that some evidence in the end related to issues not raised in the complaint or was only tangentially related to issues raised in the complaint. The Decision notes that this did occur. It is not necessary in fulfilling the obligation to provide full reasons to summarise the entirety of the evidence and make findings in respect of all of it.

16The applicant states that the Decision does not deal with a reprisal issue that was identified in the complaint. The Decision dismisses a reprisal complaint to the extent that one was particularized in the complaint. The applicant suggests that there was an additional issue identified in paragraph 9 of the complaint form. This was not an issue identified as an allegation of discrimination by the respondents. Finally in this regard, the applicant also states that I did not ask the parties to address a reprisal issue that arose out of the evidence in the course of the hearing and relies on a decision of the Tribunal in Bertrand v. Primary Response, 2010 HRTO 186. I note that the decision relied on by the applicant is not a Transitional Application. In a section 34 Application, unlike a Transitional Application, the Tribunal’s jurisdiction is not confined to the issues raised in the underlying complaint. Accordingly where appropriate the Tribunal can identify issues arising from the evidence or entertain requests to amend the Application. In any event the gravamen of the Decision was that there was no credible evidence to support the allegations of the applicant, and accordingly no credible evidence of reprisal whether identified properly in the complaint or not.

17The applicant states that the Decision did not make any findings with respect to whether or not the employer had provided an environment where staff were sufficiently informed of the rights and obligations under the Code. This was not an allegation made in the complaint and therefore there was no reason to address this issue.

18The applicant also states that the Decision does not provide adequate reference to established human rights principles. The applicant further suggests that aspects of the Application were dismissed without rational basis. The applicant also suggests that the reasons for Decision are inadequate. The applicant provides no examples of these suggestions. With respect I do not agree on any of these points.

19The applicant makes reference to what she describes as a conversation I had with her and her colleagues at the beginning of the Case Resolution Conference which she says casts doubt on whether the case was approached appropriately from the beginning. The applicant suggests that remarks allegedly made by me suggest that I would not make the decision based on the merits and justice of the case based on the law and the evidence led. The conversation was either in the presence of all parties at the outset of the hearing or was in the context of a mediation/adjudication undertaken on the first day of hearing. The applicant cites no specifics of what these alleged remarks may have been. I am not satisfied that there is any basis to this allegation.

20The applicant finally states that I demonstrated a lack or partiality by engaging the respondents in conversation in the hearing room. The applicant suggests I indicated that I was a patron of a city pool and had formed personal impressions of pool staff which I shared with the parties. The applicant does not suggest what those impressions were.

21The applicant is correct that at one stage during the respondents’ evidence while attempting to clarify an issue, I made comments to the effect that I had once been a patron of a city pool and was somewhat familiar with how city pools operate in a general way. I also recall again in the context of questioning a witness asking whether my impression that pool staff were often young people, students mostly, working part time was accurate. I do not recall conveying to the parties that I had an impression, positive or negative, of city staff and the applicant does not suggest what it is that causes her concern. I observe at this stage that the applicant did not raise these concerns prior to the hearing being concluded but only after a final Decision dismissing her Application.

22In any case the legal test for reasonable apprehension of bias most often cited is that set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, and it is a high standard. The apprehension of bias must be both reasonable and serious: supra at 395. The test, at 394, is as follows:

[T]he 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…[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think it is more likely than not that the [decision-maker], whether consciously or unconsciously, would not decide fairly.

23In my view based on the allegations of the applicant there is no basis to conclude that I demonstrated a bias or partiality in favour of one side over the other.

24In the end the result of this case turned almost entirely on my assessment of the applicant’s credibility. That determination was based largely on the applicant’s evidence and in significant part the contrasts between what was described at the hearing when compared to the allegations in the complaint as well as the general implausibility of some of her allegations. These are findings of fact that the applicant does not accept. None of the issues raised are a proper basis for reconsideration and more particularly are not inconsistent with Tribunal procedure or jurisprudence.

25For all of these reasons the Request for Reconsideration is dismissed.