Jamal Hamed v. Toronto Police Department, 2013 HRTO 1540

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jamal Hamed

Applicant

-and-

Toronto Police Department/Divisions 14, 11 and 51, Melinda McAskill and Catherine White

Respondents

RECONSIDERATION DECISION

Adjudicator: Alison Renton Date: September 16, 2013 Citation: 2013 HRTO 1540 Indexed as: Hamed v. Toronto Police Department

WRITTEN SUBMISSIONS

Jamal Hamed, Applicant

Self-represented

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The respondents were not required by the Tribunal to file a Response to the Application.

2In a Decision dated June 27, 2013 (2013 HRTO 1127) ("the Decision"), the Tribunal dismissed the Application on the basis of delay and as having no reasonable prospect of success following a summary hearing held on April 2, 2013.

3The applicant filed a Request for Reconsideration ("the Request") on July 27, 2013. On his Request, he marked off that there are new facts or evidence that could potentially be determinative of the case and that could not have reasonably been obtained earlier. The Tribunal has not required the respondents to respond to the Request.

4The applicant provides a number of reasons upon which he bases his Request. They are, summarized, as follows: there is new evidence "such as personal disclosure from a person with firsthand knowledge that could be potentially helpful"; the analysis and explanations given by the Tribunal in the Decision do not reflect fairness and thoroughness in viewing the case and materials at hand, which appeared to be "in conformity and outweighing the respondents side and their arguments against the applicant", including the Tribunal's consideration of issues not raised by the respondents; the decision was issued early in that it was issued before a mediation, to which the parties agreed to participate, was held and to which the applicant re-iterated his agreement after the summary hearing; the Decision itself is challenged by the applicant because, he asserts, he has been subjected to "a long process" dating back "several years" of a pattern of conduct of discrimination, harassment, intimidation and reprisal; the Tribunal put considerable emphasis and a wider scope on the issue of delay pertaining to incidents prior to May 2011 which may have adversely affected the decision process as the pre-May 2011 incidents were intended to be relied upon for information purposes only as he stated during the hearing; this was the applicant's first experience with a teleconference hearing such that the applicant felt that he would have short comings with being organized and prepared and he understood, with the Tribunal's consent, that he could file materials subsequent to the summary hearing; and he appears to suggest that the Tribunal made determinations on issues that were not identified before the summary hearing.

LAW AND ANALYSIS

5Rule 25.5 of the Tribunal's Rules of Procedure sets out the limited circumstances in which reconsideration may be granted:

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.

6It is also useful to consider the Tribunal's Practice Direction on Reconsideration, which states in part:

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.

7As 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.

8In this case, the applicant has based his Request upon Rule 25.5(a) and claims that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. While he submits, in his Request, that there is "new evidence such as a personal disclosure from a person with firsthand knowledge that could be potentially helpful in the case", he does not identify this person or identify the firsthand knowledge that the person has. More importantly, the applicant does not explain why this unidentified person and their unidentified knowledge could not have been obtained earlier, as required by Rule 25.5(a) and specifically, before the summary hearing. Accordingly, his Request based upon Rule 25.5(a) fails.

9With respect to the other reasons that the applicant asserts as the basis for his Request, I find that these too do not meet the factors identified in Rule 25.5(a) to (d) pertaining to requests for reconsideration. Essentially, the applicant objects to his Application proceeding to a summary hearing before a mediation was held. However, the Tribunal is entitled to hold a summary hearing, which is a screening mechanism, and to control its own process. See: Eisenberg v. Seneca College of Applied Arts and Technology, 2012 ONSC 4802 (Div. Ct.) at para. 13 and Tulloch v. Superior Facility Services (1084408), 2013 HRTO 759 at para. 9.

10In his Request, the applicant also repeats his assertions that he has been discriminated against by the respondents and "strongly challenges" the Decision. This, in my view, is the applicant attempting to re-argue his case, which the Tribunal has held a party cannot do on reconsideration. Reconsideration is not an opportunity for a party to re-argue a case or correct the deficiencies in its case. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34.

11The applicant takes issue that in the Decision, the Tribunal found that his allegations pre-dating May 2011 were untimely. He alleges, in his Request, that the pre-May 2011 allegations were in the Application "only for the sake of information", which he reiterated during the hearing, and the emphasis that the Tribunal placed on the pre-May 2011 incidents "mi[gh]t have affected the decision process advers[e]ly". The applicant's assertion on this issue appears to be different from what he stated before the Tribunal as set out in the Decision. At para. 38 of the Decision, the Tribunal noted that the applicant asserted that his allegations were all part of a continuing pattern of conduct which becomes part of a series of incidents. As noted above, reconsideration is not an opportunity for a party to correct the deficiencies in his or her case; nor is it an opportunity for an applicant to present a position different from one taken during a hearing.

12The applicant also appears to be alleging that he was subjected to procedural unfairness by the Tribunal. The summary hearing in this matter was a very lengthy one, commencing at 9:38 a.m. when the applicant called in late after the 9:30 a.m. scheduled start time, and ending at after 12:15 p.m. The issues of delay and the reasonable prospect of success pertaining to a summary hearing were identified in a Case Assessment Direction dated December 20, 2012 ("the CAD") well in advance of the summary hearing. The applicant, who advised he was using a new headset, gave extensive submissions, including information which appeared to be in the form of evidence. He, apparently inadvertently, hung up and called back into the summary hearing several times. When this occurred, the Tribunal did not proceed in his absence and waited for him to return to the call before resuming the hearing. The Tribunal directed the applicant to focus on submissions rather than providing evidence.

13There was no oral ruling made during the summary hearing by the Tribunal that the applicant could file additional materials after the summary hearing. The applicant was told that if his Application continued to proceed to mediation and/or hearing, he would have an opportunity to file additional materials.

14However, the applicant did file materials after the summary hearing was held. In para. 8 of the Decision, the Tribunal stated that it would not consider those additional submissions, but it noted that the applicant's Request for Interim Remedy sought to reduce the amount of monetary compensation the applicant was seeking from the respondents and to re-iterate his request that he not be subjected to harassment, discrimination and intimidation by the respondents. The subsequent material sought to add additional respondents to the Application, and the applicant's agreement to mediation-adjudication, submit additional documentation, a Reply to the Response and a Response to the respondent's Request for Summary Hearing.

15As the Tribunal made clear in the CAD, the purpose of the summary hearing is to hear submissions as to why the Application should not be dismissed as having no reasonable prospect of success as well identifying other issues. The CAD stated that the Tribunal would not be hearing any evidence and no evidence would be called. The materials that had been filed by the parties prior to the hearing, including the Application and the Response, and the applicant's additional materials, which included pictures and video clips, were carefully reviewed by the Tribunal prior to issuing the Decision, as noted in para. 7. The Tribunal issued the Decision after reviewing all of the material that had been filed and after hearing lengthy submissions from the parties, particularly the applicant

16The Decision is a lengthy one where the applicant's allegations within various time frames and his supporting documentation are articulated and considered. Based upon the above, there are no factors in Rule 25.5 of the Tribunal's Rules of Procedure that warrant the applicant's Request being granted. Accordingly, the applicant's Request is denied.