HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hazem Zienelabdeen
Applicant
-and-
Best Buy Canada Ltd.
Respondent
RECONSIDERATION DECISION
Adjudicator: Mark Hart
Indexed as: Zienelabdeen v. Best Buy Canada Ltd.
1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2013 HRTO 57 dated January 11, 2013, which dismissed this Application.
2On February 8, 2013, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.
3Section 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.
4Under 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).
5The 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.
6As 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.
7In 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.
8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 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.
9As a result, I need to determine whether the material filed by the applicant in support of his request for reconsideration satisfies the criteria set out in Rule 26.5. The applicant relies upon the criteria identified in Rule 26.5(a) and (d).
10The applicant first asserts that the policy of the respondent company was not followed, as proven by documents regarding the scheduling. The scheduling issues are addressed in paras. 8 to 18 of the Decision. It is not clear to me what “policy” of the respondent company is being alleged by the applicant not to have been followed. In any event, this Tribunal’s jurisdiction under the Code is not to determine whether or not a corporate policy has been followed. This Tribunal’s jurisdiction is solely to determine whether there has been a violation of the applicant’s rights under the Code. For all of the reasons set out in the Decision, I found that evidence did not support that the allegations raised by the applicant regarding scheduling amounted to a violation of his rights under the Code. I see no reason to depart from this finding.
11The applicant next asserts that “witness selection” and “allowance” was different as between the applicant and the respondent. I disagree. As indicated at paras. 71 to 74 of the Decision, when the applicant initially filed his list of proposed witnesses, he failed to comply with the requirement in the Rules to provide a brief statement summarizing each witness’ expected evidence. In the Case Assessment Direction issued in advance of the hearing, I raised this issue and afforded the applicant with an opportunity to provide the required summaries of evidence. In response, he indicated that he now only intended to call one witness, and provided a summary of her proposed evidence. One aspect of her evidence, her allegation that she experienced racial discrimination as a White woman due to the actions of her supervisor and another colleague who are Black, was addressed at the hearing and found to be inadmissible for the reasons stated at para. 73 of the Decision. This witness did testify regarding the other aspect of her proposed evidence, once it became clear to me that this was an issue in dispute between the parties.
12It is unclear to me on what basis it is alleged that “witness selection” and “allowance” was any different for the respondent. The respondent too had to comply with the Rules and file its list of witnesses and summaries of evidence in advance of the hearing, and the respondent did so. The respondent called three witnesses, all of whom were individuals against whom allegations had been made by the applicant. The respondent initially was unable to provide a summary of Ms. Kasamali’s proposed evidence, as Mr. Kasamali no longer worked for the respondent company. However, a summary of Mr. Kasamali’s proposed evidence was provided to the applicant prior to the commencement of the hearing, and no issue was raised by the applicant or his representative about this. Accordingly, I find that there is no factual basis for the applicant’s assertion that the witness selection and allowance was different as between the parties.
13The applicant asserts that other witnesses for the applicant were not allowed, which weakened his position, yet these witnesses were mentioned in the Decision. It is asserted that if a proposed witness’ name was mentioned in the Decision, then this person ought to have been allowed to testify. Once again, it is unclear to me what the applicant is referring to. The initials of several individuals (P.P., L.D., K.P. and R.) who did not appear as witnesses are referenced in the Decision, all of whom were identified by the applicant as part of his allegations of discrimination. None of these individuals were identified as proposed witnesses by either party. It is not correct to state that, just because a person is referenced in a Decision, that such person must have appeared as a witness. It is up to the parties to decide who they want to call as a witness, and the parties in this case were given the opportunity to identify their proposed witnesses. The applicant’s assertion that witnesses that he wanted to call were not allowed and yet were mentioned in the Decision is unfounded. In any event, the applicant did not propose to call any of the four individuals referenced by their initials in the Decision, and so the failure of these individuals to appear as witnesses is not a proper basis to support a reconsideration request.
14The applicant next asserts that the witness testimony by Ms. Paynton was different, biased and prejudiced by me, which affected witness preparation. It is asserted that this witness was subjected to different testimony than any other witness to prejudice the applicant’s position. Once again, it is entirely unclear to me what the applicant means by this. The alleged racial discrimination aspect of Ms. Paynton’s proposed evidence was disallowed by me, as it did not meet the standard for the admissibility of similar fact evidence for the reasons stated at para. 73 of the Decision. The scheduling aspect of Ms. Paynton’s evidence initially also was disallowed by me, on the basis that I did not understand it to go to a material fact in issue between the parties. As stated at para. 73 of the Decision, when it subsequently became clear to me that her proposed evidence about scheduling did go to a material fact in issue, Ms. Paynton was allowed to testify by teleconference. No objection was raised by the applicant or his representative to having Ms. Paynton testify by teleconference, nor was any issue raised at the time that there had been inadequate time to prepare her evidence.
15The applicant next asserts that in the Decision, I referred to the Phillipino ethnicity of an employee regarding his ability to leave Sunday meetings early, whereas the issue being raised by the applicant was based on creed – Christian vs. Muslim – and not based on ethnicity. This issue is addressed briefly in the Decision at para. 13. I do not in fact refer to this other employee as Phillipino. Rather, I refer to this other employee as being Christian and make an express finding that the distinction between the applicant and this employee was not based on creed, but was based upon a statutory requirement which did not apply to the applicant on occasions when he was already scheduled to work.
16Finally, the applicant identifies that there are “other” reasons to support his reconsideration request, but fails to identify what these may be. Section 3 of the Request for Reconsideration form clearly requires a party to provide “detailed reasons and representations in support” of the reconsideration request. Simply alleging that there are “other” reasons without providing any detail or specifics does not comply with the requirement for submission of a reconsideration request.
17The 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. Rather, he has sought to re-raise issues that already had been addressed prior to or at the hearing and in the Decision, or matters that neither he nor his representative had taken issue with at the hearing.
18In addition, the applicant has not identified any factor that, in the opinion of the Tribunal, would outweigh the public interest in the finality of Tribunal decisions.
19For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.
Dated at Toronto, this 25th day of April, 2013.
“signed by”
Mark Hart
Vice-chair