Hussain v. Ross, 2015 HRTO 481

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maher Hussain Applicant

-and-

Wendy Ross Respondent

A N D B E T W E E N:

Maher Hussain Applicant

-and-

William Osler Health Centre Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: April 15, 2015

Citation: 2015 HRTO 481

Indexed as: Hussain v. Ross

WRITTEN SUBMISSIONS

Maher Hussain, Applicant

Self-represented

Wendy Ross and William Osler Health Centre, Respondents

Patricia B. Murray, Counsel

Introduction

1These consolidated Applications filed on April 7, 2014 allege discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). I must now deal with the applicant’s Request for Reconsideration of the dismissal of certain allegations found to be out of time in an Interim Decision that I issued on March 23, 2015, (2015 HRTO 367), (“the Interim Decision”). While the respondent filed a brief response to the Request for Reconsideration by stating that there can be no reconsideration of an interim decision, I find that the Request does need to be addressed given that those certain allegations were “finally” dismissed in the Interim Decision.

2I must also now deal with the applicant’s request for an adjournment so that he might retain legal counsel prior to the hearing which is scheduled to begin on May 21, 2015.

background

3The applicant was employed by the corporate respondent and managed by the personal respondent. The events alleged to be discriminatory in each of the Applications are identical. In them, the applicant describes how, while he was working for the respondents, he applied for positions as “Addiction Counsellor” five times, beginning in 2010 or earlier, and ending in April 2011. He was not successful in obtaining those positions. He believes that a reason for the respondents not offering him the positions was linked to his race, colour, ancestry, place of origin, ethnic origin and creed.

4The next allegedly discriminatory event described in the Applications is a discipline related to pamphlets in December 2010. The Application then describes suspensions from September 2011 to December 2011 related to his relationship with a client outside of the service relationship. It would appear that the applicant believes these disciplinary actions by the respondents were motivated, at least in part, by his race, colour, ancestry, place of origin, ethnic origin and creed.

5Chronologically, the next allegedly discriminatory event described in the Application is the termination of the applicant’s employment on February 20, 2014. The applicant alleges that when he was confronted with the reasons for the termination at the termination meeting that day, he told the personal respondent that he had a disability which was responsible for the behaviour being cited to justify the termination. The applicant alleges that his request not to have his employment terminated was a request for accommodation of his needs arising from his disability, and the respondents refused to provide that accommodation. Instead, they terminated his employment.

6I stated in paragraph 11 of the Interim Decision:

In this case, there does not appear to be any link between the alleged discriminatory reasons for the incidents of 2011 and earlier, and the alleged discriminatory reason for the 2014 incident. The Application makes no allegation about the 2011 and earlier incidents being linked to disability. Instead it explicitly states they are linked to race, colour, ancestry, place of origin, ethnic origin and creed. The Application makes no allegation about the 2014 incident being linked to anything but disability. Given this, and given that the period is over two years between the 2014 termination and the 2011 incidents, I find that the incidents of 2011 and earlier described in the Application are not sufficiently linked to the 2014 incident for them to be part of a series of incidents which ends with the termination. Without them being part of a series, I cannot find that allegations related to 2011 and earlier have been filed within one year.

request to reconsider dismissal of allegations for delay

7The Tribunal has issued rules governing Requests for Reconsideration, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. Rule 26.5 states:

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 Tribunal’s Practice Direction on Reconsideration states:

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.

9The applicant indicated on the form of the Request for Reconsideration that other factors exist that outweigh the public interest in the finality of Tribunal decisions. The applicant’s narrative, however, does not appear to explain what he believes that public interest is, other than perhaps a part of his narrative that essentially states that the Tribunal should allow parties time after an alleged incident of discrimination, more than the one year provided in the legislation, so that they might “hope and wait” for a resolution pending internal negotiations so that the resources of the Tribunal are not exhausted. While there does not appear to be any argument that the delay between the 2014 incident and the incidents of 2011 (and earlier) was caused by any internal investigation or internal efforts to resolve any alleged discrimination, even if such were the case, the Tribunal has generally stated in its decisions that pursuing other legal proceedings or an internal complaints process before filing at the Tribunal will generally not constitute a valid explanation for delay in filing an Application. See Leizer v. Knight, 2013 HRTO 1652. I find that there is no reason in this case to deviate from the Tribunal’s general reasoning.

10I also find that the applicant’s reconsideration submissions essentially repeat his written argument considered already by the Tribunal prior to issuing the Interim Decision, namely, his argument that incidents in 2011 and earlier were part of a series of incidents ending in 2014, and those allegations about earlier incidents should therefore not be dismissed. This issue was addressed in the Interim Decision. A request for reconsideration is not intended to give the requesting party an opportunity to reargue issues already considered and decided.

Order Denying the Request for Reconsideration

11The Request for Reconsideration is denied.

request for adjournment

12On December 1, 2014, the Tribunal issued a Notice of Hearing in this matter, advising the parties that the hearing of the Application would take place on May 21 and 22, 2015. The Notice of Hearing advised the parties that if they wished to have the hearing rescheduled, they needed to make a request in this regard within 14 days of the date of the Notice. The parties were advised that requests to adjourn or reschedule the hearing which were made more than 14 days after the date of the Notice would only be granted in “exceptional circumstances”. The Notice also specifically stated that “retaining a new representative who is not available or prepared to proceed on the scheduled date is normally not considered an exceptional circumstance.”

13The December 2014 Notice of Hearing also advised the parties that adjournment requests would be dealt with in accordance with the Tribunal’s Practice Direction on Scheduling, which is available on the Tribunal’s website. The Practice Direction states in relevant part:

Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

14On April 8, 2015, the applicant requested an adjournment in order to seek legal advice or representation from the Human Rights Legal Support Centre. No documentation from that Centre accompanies the request. The respondents oppose the request to adjourn.

15As reflected in the Notice of Hearing, the Tribunal has often held that a party’s failure to seek legal advice or retain counsel in a timely manner does not constitute an extraordinary circumstance that warrants adjournment of the hearing, including when counsel is unavailable or unprepared to proceed on the scheduled date: Williams v. Deloitte LLP, 2015 HRTO 264: Sangineto v. BridgeCo Foods Inc., 2014 HRTO 1554; Pazhaidam v. North York General Hospital, 2011 HRTO 1663; Davie v. PMA Brethour Real Estate, 2009 HRTO 1198.

Order Denying the Adjournment Request

16The applicant has not satisfied me that an extraordinary circumstance exists to justify an adjournment, and his request for one is denied.

directions and Next Steps

17The hearing will proceed on May 21 and 22, 2015 to determine the allegation that the termination of the applicant’s employment constitutes discrimination because of disability.

18The applicant must confirm within 7 days whether he will be calling his psychiatrist as a witness, and, if so, the applicant must at the same time file his psychiatrist’s curriculum vitae and expert’s report along with a brief statement as to whether the intended evidence of his psychiatrist is relevant to the allegation of the termination of the applicant’s employment, or to his mental state following the termination.

19I remind the parties that on May 21, 2015, the first day of the hearing, the Tribunal will offer to the parties mediation-adjudication pursuant to Rule 15A of the Tribunal’s Rules of Procedure. If the parties refuse to try mediation-adjudication, or if it is not successful at resolving the matter, then the applicant must be prepared to testify.

20In the event that the matter does not settle and the hearing proceeds, the parties must also be prepared to address at the commencement of the hearing any outstanding requests, and also whether the applicant’s intended evidence about remedy should be delayed until I have decided whether or not discrimination occurred, (whether to “bifurcate” the hearing).