Bright (Zeguo) Qiu v. Gail Neilson and Douglas Moore, 2011 HRTO 426

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bright (Zeguo) Qiu Applicant

-and-

Gail Neilson and Douglas Moore Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart Date: February 28, 2011 Citation: 2011 HRTO 426 Indexed as: Qiu v. Neilson

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2010 HRTO 2359 dated November 29, 2010, which dismissed this Application.

2On December 13, 2010, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”) provides as follows:

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.

4Under 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. The 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).

5The 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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. 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.

8The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 25.5 of the Rules provides:

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.

9As a result, I need to determine whether the material filed by the applicant in support of his request for reconsideration satisfies any of the criteria set out in Rule 25.5. The applicant relies upon the criteria identified in Rule 25.5 (c) and (d).

10Notwithstanding the applicant’s citation of Rule 25.5 (c) and (d) in the Request for Reconsideration, he made no submissions that bear on either of these factors or any of the other factors found in Rule 25. It is evident from the applicant’s submissions that he disagrees with a number findings of fact that were made based on the evidence presented and it is primarily on this basis that he seeks reconsideration. The applicant, in essence, is attempting to re-argue his case. This does not provide a basis to grant a request for reconsideration.

11The applicant first takes issue with my finding in paragraph 19 of the Decision that it was the applicant’s failure to turn over the boxes in his possession that led to the subsequent events, and not his race or ethnic origin. The applicant states that when he was told to unload the boxes, he had not been advised that he had been fired and he had not yet told Mr. Moore that he had decided to quit. The applicant submits that this is not equality and that he has the right to know why he was being asked to unload the boxes.

12These submissions raise no new facts or allegations of fact nor do they raise issues under paragraphs (c) or (d) of Rule 25.5. The issue under the Code is whether the applicant experienced discrimination because of the grounds alleged, in this case race or ethnic origin. The issue is not, as framed by the applicant, some abstract right to equality or right to know certain specific information. In the absence of any specific evidence of discrimination because of the alleged grounds, I have no general jurisdiction to impose my or the applicant’s notion of what may be considered fair. There is no evidentiary or legal basis in the material submitted by the applicant to change my finding that it was the applicant’s failure to turn over the boxes that led to the events that followed, and not his race or ethnic origin.

13The applicant next challenges my finding in paragraph 20 that I did not accept his evidence that Mr. Moore called a tall guy to come and “beat” the applicant. The applicant references Mr. Moore as giving evidence at the hearing that he had indeed called a tall guy to come out to the office, who was identified as a truck driver. While the hearing in this matter was not recorded, I made notes throughout and relied on these in reaching my findings of fact. In fact, what Mr. Moore said in his evidence is that he had no idea who the applicant was referring to as the “tall guy” unless is was the truck driver. Mr. Moore’s evidence was that there was also an Asian driver in the office (which corresponds with the applicant’s evidence) and that he told either the Asian driver or the truck driver to go out and unload the boxes from the applicant’s van. Mr. Moore denied threatening the applicant or telling anyone to beat him.

14The applicant in his submissions questions why he would run out of the office when it was snowing and cold unless he had been threatened. One reason may be that he didn’t want to turn over the boxes because he felt that he was entitled to deliver them and be paid for that, and he didn’t want the boxes taken from him. In any event, none of this provided any evidence to support the applicant’s allegation that he experienced discrimination because of his race or ethnic origin. This was a dispute over custody of the boxes, which then escalated because the applicant would not turn over the boxes to the respondents and the police became involved. This, in my view, had nothing to do with the applicant’s race or ethnic origin. Perhaps more importantly none of what the applicant raises in his request for reconsideration in respect of these particular findings amount to allegations of new evidence or facts or raise any other basis under Rule 25 to reconsider this aspect of the decision.

15The applicant also takes issue with my finding in paragraph 20 that the respondents’ only concern was to retrieve the boxes so that proper and timely delivery could be made. The applicant submits that if this was the respondents’ concern, then they should have allowed him to deliver the packages. The problem with this submission is that Mr. Moore already had decided that he didn’t want the applicant to continue in his employment with the courier company and had called him in that morning to terminate the relationship, and so having the applicant deliver the packages was not a realistic option. Again, more importantly, these submissions are in essence an attempt to reargue issues that were already before me and provide no basis to grant a request for reconsideration.

16The applicant next takes issue with my finding in paragraph 21 that it was the police and not the respondents who were responsible for towing the applicant’s van, on the basis that there is no evidence to support this finding. In fact, the respondents provided direct evidence that they had no involvement with the towing of the applicant’s van, which I accepted. As it was the applicant’s allegation that the respondents were responsible for having his van towed, he bore the legal burden of proving this. The respondents were not required to prove a negative. The applicant provided no evidence before me to support his allegation that the respondents were responsible for having his van towed, and this allegation was contradicted by the respondents’ evidence.

17The applicant also states that he did not ask to be paid at the scene, and he relies upon evidence given by Ms. Neilson at the hearing to support his contention that the respondents conspired with the police. The applicant’s version of Ms. Neilson’s evidence as set out in his reconsideration submissions is not accurate. What Ms. Neilson said in her evidence was that the police came and asked if she could write the applicant a cheque, and she explained their payroll system and that the cheque wasn’t due for another two weeks. She testified that the police then said that the applicant was giving them a hard time and wanted his money, and this is what led to the preparation of the manual cheque. Ms. Neilson did not say, as alleged by the applicant, that the police said it “could make trouble” for them (the police) if she didn’t write the cheque. The evidence did not support the applicant’s allegation that Ms. Neilson engaged in any “plot” with the police. Rather, the evidence indicated that the police sought immediate payment of the money owing to the applicant as part of their attempt to defuse the situation.

18The applicant next takes issue with my finding in paragraph 22 of the Decision that the charges resulted from the applicant’s interaction with the police, submitting that he didn’t “interact” with the police but was assaulted by them. The issue of the police’s role in this incident is a separate issue that has been addressed in a prior decision (2009 HRTO 2187) and is not an issue in the proceeding before me. The issue before me was the applicant’s allegation that the respondents conspired with the police to lay false charges against him. My finding was that the evidence did not support that the respondents played any role in the police decision to lay charges. Again, the applicant is merely attempting to reargue this issue and has provided no new facts or evidence or any other basis to alter this finding.

19The applicant also raises what he characterizes as inconsistencies and “perjury” in the respondents’ evidence. The issues raised in his reconsideration application were raised before me at the hearing, and no basis has been provided to alter my findings as set out in the Decision.

20The applicant raises a number of rhetorical questions about what “equal employment” means and the fact that he received very little pay for the work he performed. As previously stated, it is not my role or jurisdiction to engage in general determinations as to what is or is not fair in some abstract sense. My role and jurisdiction is to determine based on the evidence before me whether the applicant experienced discrimination because of his race or ethnic origin. For all the reasons set out in the Decision, I found that this allegation was not supported by the evidence.

21The applicant also at various points in his submissions alleges that certain conduct is in violation of the Criminal Code. That also is not my role or jurisdiction. My jurisdiction is limited to the Ontario Human Rights Code.

22Finally, the applicant raises the issue that my Decision did not mention that Ms. Neilson was hostile to him. As recorded in the statement she gave to police on April 18, 2006, in response to a question about whether she was offended by anything she saw the officer on the scene do, Ms. Neilson replied that she thought the officer was very good and that she didn’t think that she would have had as much control. She then stated, “in the same situation, I probably would a slammed the guy right into the wall, if I could have, , but, that’s me,,,” There is no doubt that this was a hostile and inappropriate comment directed by Ms. Neilson towards the applicant, with which Ms. Neilson was confronted at the hearing. However, this comment does not prove the allegation before me that Ms. Neilson discriminated against the applicant because of his race or ethnic origin. More probable reasons to explain Ms. Neilson’s hostility are that the applicant refused to return boxes to her courier company that needed to be delivered, that the applicant locked himself in his van which necessitated calling the police, that the deliveries were for a large client and were already significantly delayed, and her frustration with the applicant’s conduct even after the police arrived. Perhaps more importantly, all of this was before me and considered in reaching the Decision which is the subject of this Request for Reconsideration.

23The applicant has not provided any established jurisprudence or Tribunal procedure with which my Decision is alleged to be in conflict. Nor in my view do his submissions support that any factors exist which would outweigh the public interest in the finality of this Tribunal’s decisions. Although the Request did not specifically allege that there were new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, given that the Request largely amounted to a challenge to factual findings I did consider whether this factor was engaged. The Request alleged no new facts or evidence and thus provided no basis for reconsideration on this ground.

24For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.