Farahani v. Toronto (City), 2012 HRTO 1295

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hajar Farahani Applicant

-and-

City Of Toronto Respondent

-and-

Canadian Union Of Public Employees Intervenor

RECONSIDERATION DECISION

Adjudicator: Maureen Doyle Date: June 29, 2012 Citation: 2012 HRTO 1295 Indexed as: Farahani v. Toronto (City)

WRITTEN SUBMISSIONS

Hajar Farahani, Applicant ) Self-represented

BACKGROUND

1On March 1, 2012, the Tribunal issued an Interim Decision in this Application, 2012 HRTO 444, following a summary hearing dismissing the Application in part. The applicant has asked the Tribunal to reconsider its Decision and to allow the Application to proceed in its entirety.

2A 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 respondent.

3The Tribunal’s Decision found as follows:

• allegations relating to the period before June 18, 2009, were dismissed as untimely.
• but for an allegation related to a discussion at a workplace meeting on April 13, 2010, the Application as it relates to allegations of discrimination on the basis of race, ethnic origin and place of origin, was dismissed.
• but for the allegations related to the extension of her contract for an acting ARO position and her allegations related to discipline in October 2001, the Application as it relates to allegations of discrimination on the basis of reprisal, was dismissed.

THE REQUEST FOR RECONSIDERATION

4The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

b. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

c. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

DECISION

5Under 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.

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.

6The 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). Most relevant to this Decision is Rule 26 which states:

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

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.

7The 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.

8As 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.

9Under Rule 26.1, only “final” decisions qualify for a reconsideration request. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal determined that even an interim decision may be “final” where it disposes of some or all of the central issues in the application. I am satisfied that the Interim Decision in the matter before me disposes of some of the central issues in the Application and, on this basis, the Tribunal’s reconsideration process is available.

10As indicated above, the Applicant relies on Rule 26.5 (a), (c) and (d). I find, however, that she has not met the burden of establishing any of the threshold criteria justifying reconsideration.

11The applicant asserts that submissions were attributed to her which she never made. In particular, she refers to paragraph 12 of the Interim Decision and submits that she never said that she “did not receive ‘strong acknowledgements for a long time”. A review of the structure of the Interim Decision indicates that that the section comprising paragraphs 10 through 24 considers allegations made by the applicant in her Application, her Reply, her November 8, 2010 and November 10, 2011 Requests for Order During Proceeding (RFOPs), it considers the respondent’s response and its response to her RFOP. In her Application, she stated that she cancelled a day of vacation in order to attend an important team meeting, and that if any other staff member had done the same, “the action would receive strong acknowledgements for a long time”. The Interim Decision simply reflects this allegation.

12In her Request for reconsideration, the applicant makes reference to numerous allegations and her proposed evidence, submits that there have been errors and omissions and objects to the way in which the evidence is referred to in the decision. She also submits that her allegations have been presented “out of their context and the explanations I had provided.”

13I have reviewed the documentation and submissions regarding allegations made by the applicant and the evidence upon which she proposes to rely, and I am satisfied that the allegations she made and the evidence upon which she has indicated she intends to rely have all been considered. In support of her Request, the applicant essentially repeats arguments made orally before the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. It is evident that the applicant disagrees with the assessment of the evidence, but the fact that the applicant does not like the interim decision does not satisfy the criteria which must be met for reconsideration.

14The applicant submits that the Interim Decision has ignored the “hidden racial discrimination and harassment” she alleges she experienced. The applicant submits that her “over 100 pages of written, and…verbal submissions provide much of evidence of human rights violations”. In her Request for reconsideration, she includes a general discussion of systemic discrimination, negative attitudes, stereotypes and bias and what she calls “subtle discrimination”. She has not, however, established that the Interim Decision is in conflict with established case law, nor has she established that the proposed reconsideration involves a matter of general importance. Further, she has not established that other factors exist which outweigh the public interest in the finality of Tribunal decisions.

15The Case Assessment Direction (CAD) of July 15, 2011 which directed that a Summary Hearing would be scheduled, directed that applicant be prepared to make argument about why her Application should not be dismissed, in whole or in part, as having no reasonable prospect of success, and also directed her to outline why the allegations she made are timely under s. 34 of the Code.

16The Interim Decision included a finding that her allegations dating from 2001 could not be considered a “series of events”, due to the break of over one year between alleged events, given her indication that in 2007 and 2008 “things improved with a good manager”, but “deteriorated again” with the arrival of a new manager in January 2009. According to the applicant, the manager responsible for the improvements had arrived in 2006. In her Request for reconsideration, in an effort to establish continuity, she pointed to allegations from 2006 in her Reply, a reference to the manager’s “limited jurisdiction”, a reference to a subsequent change to a January 2008 job posting, the fact that she complained to her union in 2010 and to undated allegations made in her Reply:

17In her Request for reconsideration, she does not cite any new facts or evidence. As noted in the Interim Decision, a break of over one year between alleged events is inconsistent with a “series of events”. With regard to the undated allegations, if it was her intent to rely upon these allegations in an effort to establish continuity through that period which is in excess of two years (from the 2006 arrival of one manager to the January 2009 arrival of the next manager), it was incumbent upon her to make that argument at the Summary Hearing. In any event, it is not evident that the applicant would have a reasonable prospect of success in establishing that these allegations relate to a breach of the Code, and therefore their significance to a decision regarding timeliness is highly questionable (see Chappell v. Securitas Canada Limited, 2012 HRTO 874). The submissions made by the applicant do not amount to new facts or evidence which “could not reasonably have been obtained earlier”.

18The applicant also submitted that insufficient time was allocated for the summary hearing and she alleged that she had indicated she was tired during the hearing as she had not slept the night before. She also submitted that her notes were not organized “in the way that session proceeded”, she alleged that she was given limited time to make Reply to the respondent’s submissions and she alleged that she had experienced difficulty in hearing the respondent fully on the telephone.

19As noted in the Interim Decision, the Summary Hearing was originally scheduled for one half day, but the matter continued for several hours past the scheduled finish time, taking the better part of one day. In that time, all issues were canvassed and I am not persuaded that the time allotted for the matter was insufficient such as to constitute reason for reconsideration of the decision. Further, the Interim Decision noted that the applicant had participated fully in the summary hearing and there was no indication that she had not heard the proceedings properly. The Interim Decision also indicates that the process was explained to the applicant at the outset and that she was asked questions throughout the course of the hearing, inviting her to address the issues before the Tribunal. I am not persuaded that the applicant did not have adequate opportunity to participate fully in the summary hearing process. In any event, she has not established that the decision is in conflict with established Tribunal procedure, nor has she established that the proposed reconsideration involves a matter of general public importance nor that other factors exist which outweigh the public interest in the finality of Tribunal decisions.

20It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson, above, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

21The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

22I am not convinced that any findings made in the Interim Decision are in conflict with established jurisprudence or that there is any conflict with Tribunal procedure. While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that her submissions in this Request do not establish that the Tribunal’s Interim Decision conflicts with established jurisprudence.

23I am not persuaded that the applicant has established that there are other factors which exist that outweigh the public interest in the finality of Tribunal decisions.

24In sum, I 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. The Request is denied.