Soheil-Fakhaei v. Canadian Business College, 2012 HRTO 839

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zohreh Soheil-Fakhaei

Applicant

-and-

Canadian Business College, Paul Sharma,

Helen Wolda, Sangeeta Patodia and Pooja Sarda

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: April 24, 2012

Citation: 2012 HRTO 839

Indexed as: Soheil-Fakhaei v. Canadian Business College

WRITTEN SUBMISSIONS

Zohreh Soheil-Fakhaei, Applicant ) Shaikh Ali, Representative

1On February 21, 2012, the applicant filed a Request for Reconsideration of the Tribunal’s Decision 2012 HRTO 172 dated January 23, 2012, which dismissed this Application. On that same day, the applicant also filed a Request for a Tribunal Ordered Inquiry supported by the same submissions. This Decision will address both requests.

Request for Reconsideration

2Section 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.

3Under 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).

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.

5As 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.

6In 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.

7The 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.

8The applicant relies upon the criteria set out in Rule 25.5(c) and (d). As a result, I need to determine whether the material filed by the applicant in support of her request for reconsideration satisfies either of these criteria.

9In the material filed, the applicant has not identified any established jurisprudence or Tribunal procedure with which the Decision is alleged to be in conflict. Accordingly, there is no basis upon which to grant reconsideration pursuant to the criterion in Rule 25.5(c).

10With regard to the criterion in Rule 25.5(d), the applicant in her submissions largely seeks to re-argue issues that were fully canvassed at the hearing and in the Decision.

11For example, the applicant seeks to re-argue the issue about the proper identification of sextant 03, which was addressed in the Decision at paras. 38 to 44. There is nothing in the material filed that causes me to change my findings on this issue. The applicant asks that the Tribunal confirm the proper identification of sextant 03 with the Canadian Dental Hygienists of Ontario (“CDHO”). That is not the Tribunal’s proper role. The applicant had full opportunity to bring forward evidence regarding this issue at the hearing, including any relevant evidence from the CDHO.

12The real issue before me in this context was not so much the issue of the proper classification system for identifying teeth, but the applicant’s allegation, made for the very first time in her evidence in reply, that Ms. Wolda checked a different set of teeth than the teeth she had been debriding. The Decision articulates several reasons why I do not accept the applicant’s evidence on this point. One of these reasons, which is articulated in para. 43 of the Decision, is as follows:

Finally, the applicant’s own notes made in the client’s chart on August 1, 2006, records that she started debridement on sextant 03 and there was “heavy bleeding almost on all areas”. Given this fact, it seems to me that it would have been evident to Ms. Wolda from examining the client’s mouth which teeth the applicant had worked on. I find that it is unlikely that Ms. Wolda would have failed to notice heavy bleeding on the back five teeth on the upper left side, if those are the teeth that the applicant had worked on.

13The applicant states, correctly, that the notes from this client’s chart actually record “bleeding almost on all areas with heavy calculus on interproximal areas” rather than “heavy bleeding” as recorded in the Decision. The applicant also asserts that bleeding stops within two to six minutes, while it may have taken Ms. Wolda a half-hour before she checked the client’s teeth. I have considered these points, but this does not change my conclusion that it is unlikely that Ms. Wolda would not have noticed some indication that the teeth on the upper left side had been worked on, if in fact the applicant had done so. The applicant’s point also does not address the other reasons I have articulated for not accepting her evidence on this issue, as set out in the Decision. While the applicant’s submissions address the point about failing to raise this issue at an earlier time, this evidence was not before me at the hearing and still fails to articulate any cogent reason why this issue was not raised in earlier complaints or materials, if in fact it had occurred as alleged.

14In her submissions, the applicant raises an issue about a document that was submitted by Mr. Sharma, which is alleged to have been falsified. This issue already was raised by the applicant in her final written submissions prior to the issuance of the Decision. At the hearing, Mr. Sharma submitted a document which was presented as his reply to a complaint made by the applicant to the Ministry of Training, Colleges and Universities (“MTCU”). During the course of the applicant’s cross-examination of Mr. Sharma, it became evident that the applicant had in her possession a different copy of this document, which she said had been obtained directly from the MTCU. Both versions of this document were marked as exhibits at the hearing. From a review of these two documents, it is evident to me that the document presented by Mr. Sharma is an earlier draft of his response to the MTCU, and the other document from MTCU appears to be the final version as submitted. In my view, there are no differences between these two letters that are material to the issues before me. Nor do I believe or find that Mr. Sharma was intentionally submitting a false document to the Tribunal. I find nothing in this issue that raises any proper basis for reconsideration.

15The applicant also raises once again an issue about Dr. Patodia’s evidence regarding whether or not she was told not to attend the meeting on November 13, 2006. This issue is addressed at para. 190 of my Decision. I did not find it necessary to make any specific finding on this point, as it was not material to my findings on the allegations before me. In her reconsideration submissions, the applicant wishes me to consider whether, having perhaps been mistaken in her recollection as to whether or not she was invited to the November 13, 2006 meeting, Dr. Patodia also may have been mistaken in her recollection that she verbally instructed the applicant not to take x-rays on November 2, 2006. I do not accept this. At para. 259 of my Decision, I have addressed the applicant’s inconsistent evidence on this point. In any event, whether or not Dr. Patodia may be mistaken in her recollection as to whether she verbally instructed the applicant not to take the x-ray is not relevant to the applicant’s allegation of racial discrimination. In the Decision, I canvassed the various arguments advanced by the applicant in support of her allegation of racial discrimination, and found that they were not supported by the evidence. There is nothing in the reconsideration submissions to change my view on this.

16The applicant raises issues about Dr. Patodia’s failure to address the November 2, 2006 incident prior to November 9, 2006 while allowing the applicant to continue working in the clinic on November 7 and 9, and about Dr. Patodia “pressing” the applicant on November 9, 2006 to admit that she had disregarded the instruction not to take x-rays. These issues were addressed in the evidence before me and in the parties’ submissions, and are set out in my Decision. It appears from the applicant’s materials that these issues are being raised again as a basis to persuade me to disbelieve Dr. Patodia’s evidence that she told the applicant not to take x-rays on November 2, 2006 and to explain the applicant’s apparent admission on November 9, 2006 that Dr. Patodia had given this instruction. As stated above, I have noted the inconsistencies in the applicant’s evidence on this point in my Decision. But more fundamentally, this case is not about a dispute between the applicant and Dr. Patodia as to whether the verbal instruction was given. This case is about the applicant’s allegation that she experienced racial discrimination in violation of the Code. For all of the reasons articulated in the Decision, I found that this allegation was not supported.

17The applicant submits that at the Tuesday clinic on November 7, 2006, she was able to complete the debridement of two quadrants for Client #3, who admittedly was a challenging client, but at the Thursday clinic on November 9, 2006 she was not permitted by Ms. Sarda to work on a young child, who would have been much easier to debride. It is submitted that this proves that the people at the Thursday clinic (namely Dr. Patodia, Ms. Wolda and Ms. Sarda) were biased against the applicant. I do not accept this submission. This ignores the fact that the child (Client #10) arrived at the clinic an hour and a half late, which is the reason Ms. Sarda intervened. In the Decision, I carefully reviewed the evidence regarding any distinction between how the applicant was treated or assessed at the Thursday clinic as compared to the Tuesday clinic, and found that the evidence did not support that any difference in treatment or assessment was attributable to racial discrimination. I see no reason to change this finding.

18The applicant also raises issues about the incident on September 28, 2006, all of which are based on evidence and submissions I have already heard. This incident is fully addressed in the Decision at paras. 68 to 79 and again at para. 256, and I see no reason to change my findings on this issue.

19The applicant submits that the documentary evidence in this matter was in the respondent College’s possession, and that all documentary evidence that favoured the applicant was said to have been lost. Examples of this are stated to be one client’s patient records and the supplementary exam. In response to my Order, the respondent College produced the patient files for 10 clients who were worked on by the applicant at the clinic. The College could not locate the file for one other patient who the applicant worked on. I do not understand the basis for any suggestion that this particular client file would have been any more favourable to the applicant’s case than any other file. With regard to the supplementary exam, the issue of the whereabouts of this exam was fully canvassed in evidence at the hearing. There was no evidence of any impropriety by the College in relation to this exam not being located. Further, the material allegation in relation to this exam is not about how it was graded by Ms. Hucson, but about the alleged interference in the grading by Mr. Sharma. This issue was fully addressed in the Decision at paras. 207 to 210. I see no reason to change my findings.

20With regard to my findings relating to the applicant’s allegations of sexual harassment and racial discrimination, the applicant asks to be told what evidence she could have provided to sustain these allegations. It is not the role of the Tribunal on reconsideration to advise a party as to how they may have been able to succeed with their case. The Tribunal’s role in rendering a decision is to assess the evidence led and submissions made by the parties, and to make findings and provide reasons as to the sufficiency of the evidence to support the allegations at issue. This is what I have done in the Decision at considerable length.

21Accordingly, on the basis of the material filed in support of the applicant’s request for reconsideration, I do not find any factors that outweigh the public interest in the finality of Tribunal decisions.

22For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.

Request for Tribunal-Ordered Inquiry

23The power to appoint a person to conduct a Tribunal-ordered inquiry is set out in s. 44 of the Code. In order to make such an appointment, the Tribunal must be satisfied that: an inquiry is required in order to obtain evidence; the evidence obtained may assist in achieving a fair, just and expeditious resolution of the merits of the application; and it is appropriate to do so in the circumstances.

24It is clear from the language of s. 44(1) of the Code that a Tribunal-ordered inquiry is directed towards obtaining evidence relating to the resolution of the merits of an application. This clearly contemplates that the appropriate time for the exercise of this power is prior to a determination or resolution being made regarding the merits of the application, and not after the matter already has been determined in a final decision. As a result, in my view, it is not open for the applicant to request a Tribunal-ordered inquiry after my final Decision in this matter has already been rendered and at the time she made her Request for Reconsideration.

25In any event, having reviewed the submissions filed in support of her request, I find that an inquiry is not required to obtain evidence relevant to the merits of this application, and I further find that it would not be appropriate to order such an inquiry especially at this stage of the proceeding.

26The applicant’s request for a Tribunal-ordered inquiry is denied.