Hashi v. Toronto Transit Commission, 2014 HRTO 375

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hussein Hashi

Applicant

-and-

Toronto Transit Commission

Respondent

RECONSIDERATION DECISION

Adjudicator: Michael Gottheil

Date: March 17, 2014

Citation: 2014 HRTO 375

Indexed as: Hashi v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Hussein Hashi, Applicant

Jo-Ann Seamon, Counsel

Toronto Transit Commission, Respondent

Lucy Siracco, Counsel

1This Decision addresses a Request for Reconsideration brought by the applicant pursuant to Rule 26 of the Tribunal’s Rules of Procedure. The applicant asks the Tribunal to reconsider its Decision dated November 13, 2013 (2013 HRTO 1889) dismissing the Application, and an earlier Interim Decision dated September 3, 2013 (2013 HRTO 1487) which upheld an objection brought by the respondent, alleging the applicant was seeking to expand the scope of the Application on the eve of the merits hearing, 18 months after the Application was originally filed.

2The applicant argues that in finding that he was seeking to add new allegations and amend or expand the scope of the Application, I departed from established Tribunal jurisprudence. The applicant argues in the alternative, if the “new theory” he was advancing amounted to an expansion or amendment, I similarly departed from established jurisprudence in refusing the amendment. He relies on Rule 26.5 (c) which provides:

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

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;

DECISION AND REASONS

3The Tribunal’s Rule 26, Practice Direction on Requests for Reconsideration, and jurisprudence make clear that a Request for Reconsideration is a discretionary remedy, is not an appeal, and is not an opportunity to reargue one’s case. (Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34.)

4I find the applicant’s Request fails for two reasons. First, the Interim Decision is not in conflict with established jurisprudence. Second, this request is an attempt by the applicant to reargue his case.

5In asserting that the Interim Decision departs from established jurisprudence, the applicant refers to a number of Tribunal and Court cases which find that, on the particular facts, an applicant or complainant was not required to seek an amendment, or was entitled to amend its application. In my view, these do not assist the applicant. What the cases demonstrate is an established body of jurisprudence which sets out factors the Tribunal should consider when addressing an objection to an attempt to add facts, advance a new ground of discrimination, amend an application, or expand the scope of an application.

6The Interim Decision accepts the factors set out in the Tribunal and Court jurisprudence as the guiding principles to follow in assessing issues of this kind. The decision considers these factors, and finds, based on the circumstances, the applicant was seeking to add new allegations and expand the scope of the original Application, notwithstanding his assertions to the contrary. It also finds, based on the established jurisprudence, that in the circumstances, it would not be fair or appropriate to permit him to amend or expand his case.

7Thus, rather than departing from established jurisprudence, the Interim Decision followed it, considered the relevant factors, and determined the question based on the particular facts at hand.

8The applicant referred to a number of cases in his Request for Reconsideration in which Tribunal adjudicators found either that an applicant did not require an amendment to add new allegations or change the ground of discrimination, or that an amendment should be granted. The applicant argued that based on these cases, which he alleged to be similar to his, the Interim Decision departed from established jurisprudence. As the respondent submitted in its Response, most of the cases relied on by the applicant were argued at the hearing of the respondent’s objection. Others only provide further support for the applicant’s position.

9In my view, this demonstrates that the applicant is simply seeking to reargue his position. The cases provided by the applicant establish that there are circumstances where Tribunal adjudicators, having regard to the circumstances before them, have come to a different conclusion. It is not useful, on a Request for Reconsideration to parse through past Tribunal decisions, which turn largely on their particular facts, and argue their applicability or that they are distinguishable. This is particularly so where the issue and case law was fully argued at the hearing.

10Even if it could be said that the Interim Decision is a departure from established jurisprudence, I would nonetheless refuse to grant reconsideration in this case. As the Tribunal stated in Sigrist, above, at para. 54:

Parenthetically, even in the event of a departure from settled legal rules, there may be valid reasons why the Tribunal might nonetheless decide not to reconsider a decision. For instance, it is not clear to me that reconsideration must be granted even in the event of conflict where it is evident that the parties have had an opportunity to address the issues and the adjudicator has considered and given reasons for departing from the analysis or conclusion reached in prior cases. Where granting reconsideration in such a circumstance serves no purpose other than an opportunity to re-argue the issue, the Tribunal may well exercise its discretion against reconsidering its decision.

11Before concluding it is important to address an assertion made by the applicant, that the Interim Decision significantly narrows the circumstances in which the Tribunal should allow new allegations or the broadening of a case. In particular, the applicant asserts that the Interim Decision could be taken to suggest that a Response or disclosure by a respondent cannot be considered when assessing the “subject matter of an application.” In this regard, the applicant submitted in his Request for Reconsideration:

Thus in considering whether the Applicant’s witness statement required an amendment, it is appropriate to include the factual matrix of the entire pleadings. Not only does this recognize that in this case, the Respondents were in possession of important information about the allegations (i.e. the existence of two request stop programs, one applicable to women only, the other to all bus riders), but it also consistent with a broad and expansive reading of the “subject matter” of the allegations.

12I agree with the applicant’s position that it is appropriate to consider the “entire factual matrix”, which may include the respondent’s pleadings and information received from the respondent’s disclosure. However, in this case I found that even with a broad and liberal consideration of the factual matrix, the applicant was seeking to advance a fundamentally different case than originally filed, and in all of the circumstances, it would be unfair to permit him to do so.

13In view of the above, the Request for Reconsideration is dismissed.