Dawit Tuquabo v. University of Ottawa, 2013 HRTO 201

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dawit Tuquabo

Applicant

-and-

University of Ottawa

Respondent

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott Date: February 4, 2013 Citation: 2013 HRTO 201 Indexed as: Tuquabo v. University of Ottawa

WRITTEN SUBMISSIONS

Dawit Tuquabo, Applicant

Self-represented

Introduction

1The applicant filed this Application on June 26, 2009, alleging discrimination in the receipt of services on the basis of race, colour and place of origin contrary to section 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On December 13, 2012, the Tribunal dismissed the Application because it had been filed outside of the one-year time limit under the Code and the delay in filing had not been incurred in good faith. As such, the Tribunal held it had no jurisdiction to hear the Application, 2012 HRTO 2338 (the “Delay Decision”).

3On January 11, 2013, the applicant sought reconsideration of the Delay Decision and an earlier Interim Decision dated March 3, 2010 removing individual respondents from the Application on the basis that the allegations against them did not fall within the Tribunal’s jurisdiction, 2010 HRTO 477 (the “Interim Decision”). The applicant alleges the decisions are in conflict with established case law and the proposed reconsideration involves a matter of general or public importance.

4With respect to the Delay Decision, the applicant alleges: (a) the Tribunal erred in not considering the respondent’s failure to investigate as part of a series of incidents of discrimination; and (b) the Tribunal erred in finding the delay was not incurred in good faith.

5With respect to the Interim Decision, the applicant alleges that the Vice-chair demonstrated a reasonable apprehension of bias, erred in law and breached the principles of natural justice.

DECISION

6The Request for Reconsideration is denied.

LEGISLATIVE PROVISIONS

7Sections 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal’s decisions:

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.

45.8 Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

8Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers (Practice Direction #4 Reconsideration).

9Relevant to this Decision are the following Rules:

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

26.3. A Request for Reconsideration must include:

(a) reasons for the request, including the basis upon which the Tribunal is asked to grant the request for reconsideration;

(b) submissions in support of the request; and

(c) the remedy or relief sought.

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;

(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;

(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.

10Practice Direction #4 states, in part:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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.

11The Tribunal’s jurisprudence is clear that a Request for Reconsideration is not an appeal and is granted only in limited circumstances. There must be more than disagreement with a decision or an alleged error to find that the conditions in Rule 26.5 have been met. As the Tribunal stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 at paras. 56-57:

As is evident from the Rules and made explicit in Practice Direction #4, reconsideration is not an appeal. It is not an opportunity to re-argue a case. Once the parties to a case 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.

Secondly, assertions of a “conflict” must be analyzed with care and have due regard to the realities and nature of decision-making. Even where there is well-established jurisprudence or procedures, each decision on apparently similar issues is made within its own factual, legislative and policy context. A finding that there is a “conflict” can only be made taking into consideration the full context of the decisions.

ANALYSIS

12The applicant seeks reconsideration of the Delay Decision. The applicant submits the Application is not out of time because it involves a series of incidents, namely, the allegations of discrimination in the Molecular Biology class on March 18 and 25, 2008, and the failure by the respondent to properly investigate the applicant’s complaint relating to these incidents in October and December 2008. The applicant appears to be arguing that the one-year time limit for filing the Application commenced on December 2008 and for this reason, the Application is not out of time.

13This Tribunal has repeatedly held that persons who feel their rights have been violated are expected to file an application within the one-year time limit specified in the Code, even if this means that they are waiting for the results of an internal investigation. See S.B. v. Toronto (City), 2012 HRTO 2018 at paras. 34-35; Agyei-Abankwa v. University of Windsor, 2012 HRTO 92 at paras. 15-17.

14The timeline for filing an application commences when the alleged discrimination occurred. In this case, the alleged discrimination took place on March 18 and 25, 2008. As such, the time period for filing the Application commenced on March 25, 2008 and ended on March 25, 2009. The internal investigation, conducted by the respondent in the fall of 2008, is not part of a “series of incidents” and does not operate to extend the time period to file the Application. This point was addressed by the Tribunal in S.B. at paragraph 35:

… the underlying message …. is that an applicant needs to take timely steps to file an application regarding alleged discrimination or harassment and should not wait for the conclusion of an internal investigation. It would be ironic, to say the least, if an applicant could circumvent this jurisprudence simply by raising an allegation that a respondent did not take appropriate steps to respond to the alleged discrimination or harassment and thereby make this latter allegation part of a “series of incidents” that encompasses the underlying discrimination and harassment allegations, and thereby make them timely. This in my view would be an absurd result.

15The applicant asserts further that the Tribunal erred in finding the applicant’s delay in filing the Application was not incurred in good faith. The Tribunal made this finding because the applicant failed to provide any explanation for his delay. In the absence of an explanation, there is no basis upon which the Tribunal can find the delay was incurred in good faith.

16The applicant challenges the Interim Decision on the basis that the Vice-chair was biased, breached natural justice and erred in law. There are no particulars given for these bald assertions.

17The test for reasonable apprehension of bias is well established. De Grandpré J. wrote in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 SCR 369 at p. 394 that:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining there on the required information. In the words of the Court of Appeal, that test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly’.

18While allegations of bias must be accorded serious consideration, a completely unfounded allegation cannot give rise to a reasonable apprehension of bias. A reasonable and right-minded person viewing the matter realistically and practically would not find a “kernel of plausibility” in the applicant’s bald allegation that the Vice-chair was biased. See Christianson v. Ontario (Information and Privacy Commissioner), 2009 HRTO 424 at para. 13.

19Similarly, there is no indication as to how the Vice-chair breached the principles of natural justice. The Tribunal issued a Notice of Intent to Dismiss Against Certain Respondents, which informed the applicant that his Application appeared to be outside of the Tribunal’s jurisdiction as against all of the respondents except Mr. Basso. The Notice invited the applicant to provide written submissions to explain how each individual respondent was alleged to have breached the Code. The applicant filed his written submissions on February 1, 2010. In the Interim Decision the Tribunal held that the submissions failed to explain how the individual respondents breached the Code. It was on that basis, that the individual respondents (with the exception of John Basso, the instructor in the Molecular Biology class) were removed from the Application. In the absence of any indication as to how the Tribunal breached the principles of natural justice, there is no basis to reconsider the Interim Decision.

20Finally, the applicant alleges that the Vice-chair erred in law because he does not understand what constitutes discrimination under the Code. This assertion appears to relate to the allegation that the respondent failed to investigate the applicant’s internal complaint.

21The applicant filed an internal complaint dated July 3, 2008, where he made a series of complaints that were mostly of an academic nature. The notable exception was the complaint involving the Molecular Biology class. The Vice-chair removed the individual respondents (with the exception of John Basso) because the applicant failed to explain how they had discriminated against him. The applicant attempts to use the reconsideration process to make further submissions as to how these individuals infringed his human rights. Reconsideration cannot be used in this way. As stated above, reconsideration is not an appeal, nor is it an opportunity for a party to repair deficiencies in the presentation of one’s case. Furthermore, it cannot be used to raise new facts that could have been raised earlier, as is made clear under Rule 26.5(a) of the Tribunal’s Rules of Procedure.

22Having considered all of the matters raised by the applicant in his Request for Reconsideration, I see nothing that would outweigh the public interest in the finality of Tribunal decisions. For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.