Shirmohammadi v. 2121200 Ontario Inc., 2012 HRTO 1552

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shahin Shirmohammadi

Applicant

-and-

2121200 Ontario Inc., 2121812 Ontario Inc. o/a Ganz, Randy Langdon, Mohd Saheed Bin Maiden, Chris Kempling and Karen Butts

Respondents

RECONSIDERATION DECISION

Adjudicator: Mary Truemner

Date: August 13, 2012

Citation: 2012 HRTO 1552

Indexed as: Shirmohammadi v. 2121200 Ontario Inc.

WRITTEN SUBMISSIONS

Shahin Shirmohammadi, Applicant

Sajjad Najem, Representative

Introduction

1This Interim Decision deals with a Request for Reconsideration of decisions to dismiss allegations related to four of the six grounds indicated on the Application.

BACKGROUND

2The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 15, 2010, alleging discrimination with respect to employment on the basis of disability, race, place of origin, ethnic origin, creed and age. The allegation of discrimination on the basis of age was dismissed in an Interim Decision dated April 19, 2011, (2011 HRTO 773), (“the April Interim Decision”).

3A Case Assessment Direction issued on March 13, 2012 notified the parties that a half day teleconference hearing would be held on May 29, 2012 to determine whether there is no reasonable prospect that the applicant can show a link between the allegations with respect to race, place of origin and ethnic origin and the events described in her Application and other pleadings. Also on March 13, 2012, the Tribunal sent to the parties a Notice of Confirmation of Hearing advising the parties on how to connect to the conference call on May 29, 2012 at 9:30 a.m.

4On May 29, 2012, only the respondents’ counsel appeared at the teleconference hearing. After holding the hearing down for half an hour, I heard submissions from the respondents’ counsel to dismiss as abandoned the allegations with respect to race, place of origin and ethnic origin. At the conclusion of the respondents’ counsel’s submissions, I decided that I was satisfied that the applicant received timely and proper notice of the teleconference hearing, and I orally dismissed the allegations with respect to race, place of origin and ethnic origin as abandoned.

5Approximately one hour after the conclusion of the teleconference hearing, the applicant’s representative spoke to staff at the Tribunal and said that he had missed the hearing because he did not have the telephone number to participate in the conference call. He subsequently e-mailed the Tribunal attaching a letter that explained that his son was unwell in the morning of the teleconference hearing, traffic was heavy, and he was therefore late to his office so that he missed the teleconference hearing. He also stated that his client cannot remember evidence pertaining to the allegations with respect to race, place of origin and ethnic origin, and “I leave the decision in this respect to the discretion of the presided member in this case.”

6On May 31, 2012, the Tribunal issued an Interim Decision (2012 HRTO 1091, “the May Interim Decision”) confirming the oral decision I had made at the conclusion of the teleconference hearing. The May Interim Decision noted that the e-mail from the applicant’s representative was unclear, and advised that if the applicant wished the Tribunal to reconsider the dismissal of the allegations with respect to race, place of origin and ethnic origin, she must file a Request for Reconsideration on the appropriate Tribunal Form within 30 days of the Interim Decision, a timeline set by the Tribunal’s Rules of Procedure.

7On July 10, 2012, the applicant, through her representative, filed a Request for Reconsideration (“the Request”) on the basis that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. The Request is unclear, but it appears to ask for a reconsideration of the dismissal of the allegations at issue in the May Interim Decision, and also in the April Interim Decision in which I dismissed the allegation of discrimination because of age. In addition, the Request appears to request a reconsideration of a dismissal of the allegation of discrimination because of creed (“religion”). This makes no sense because the allegation of discrimination because of creed has never been dismissed.

8The respondents have not filed any response to the Request.

REASONS FOR REFUSAL OF REQUEST

9Rule 26.5 of the Tribunal’s Rules of Procedure sets out the limited circumstances in which reconsideration may be granted by the Tribunal:

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.

10Rule 26.1 of the Tribunal’s Rules of Procedure provides that any party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision. Although the applicant was specifically advised in the May Interim Decision that she was required to file any Request for Reconsideration within 30 days, which would have been by June 30, 2012, she did not file her Request for Reconsideration until July 10, 2012. Pursuant to Rule 26.5.1, the Tribunal will not grant a Request for Reconsideration that is made more than 30 days following the decision at issue, unless the Tribunal determines that the delay in filing the Request was incurred in good faith and that no substantial prejudice will result to any person affected by the delay.

11The Request explains that the reason why the applicant’s representative did not file it within 30 days of the date of the Tribunal’s decision is because “we recently received new documents [from the respondents].” These documents were disclosed to the applicant’s representative on June 28, 2012 in preparation for the upcoming hearing with respect to allegations related to disability and creed set for November 23, 2012.

12The applicant’s representative explains that the documents triggered his client’s memory. They are photographs of the physical space in which she worked for the respondents prior to the termination of her employment in 2009. The applicant’s representative claims that they reminded her of incidents of being badly treated by the personal respondents. Most of what the applicant alleges to recall from the photographs is already in her pleadings and goes to her allegations of discrimination because of disability, the ground which seems to be the subject of her Application, as well as creed, both of which are to be adjudicated at the upcoming hearing. However, the applicant alleges to now remember a statement of one of her supervisors that her representative claims goes to her allegation of discrimination because of race, ethnic origin and place of origin and had not been mentioned in the applicant’s pleadings: the supervisor asked if she “watched TV and [gets] news about Iran...”. It appears that the applicant’s position is that this is new evidence that is potentially determinative of the case and that could not reasonably have been obtained earlier.

13A Request for Reconsideration may be denied on the basis of delay alone. See der von Felix v. International Financial Data Services (Canada), 2010 HRTO 362, and Hardman v. Grey County Housing, 2012 HRTO 1142. The applicant does not explain why there is a delay between receiving the documents on June 28, 2012 and filing the Request on July 10, 2012. However, even if the applicant’s representative were to argue that the respondents’ disclosure on June 28, 2012 of the photographs which triggered the applicant’s memory were not served in time for the applicant to 1) review them, 2) remember the comment related to Iran, and 3) file a reconsideration request in a timely way by June 30, 2012, I find that there is not new evidence which could potentially be determinative of the case. In addition, I am not convinced that this is evidence which could not reasonably have been obtained earlier.

14There is no basis upon which I might conclude that the delay in filing the Request was incurred in good faith, but, even if there were, I do not find that any supervisor’s inquiry about whether the applicant watches TV to get news about Iran is evidence which could potentially be determinative of the case with respect to race, ethnic origin, place of origin. In addition, it does not appear to be a comment that the applicant could not have tried to remember prior to seeing the respondents’ disclosure documents with the photographs of the workplace. There is nothing in the Request that refers to any new evidence with respect to age, and there is therefore no new evidence that could potentially be determinative of the case with respect to that ground either.

15Accordingly, the Request for Reconsideration is denied and the hearing scheduled for November 23, 2012 will deal only with the allegations related to disability and age.