Akisha McFarlane v. The Regional Municipality of Peel Police Services Board, 2015 HRTO 526

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Akisha McFarlane

Applicant

-and-

The Regional Municipality of Peel Police Services Board

Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: April 23, 2015

Citation: 2015 HRTO 526

Indexed as: McFarlane v. Peel Police Services Board

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2014 HRTO 1832 dated December 29, 2014 (“original Decision”), which dismissed the Application.

2On January 29, 2015, 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 of Procedure (the “Rules”). The Tribunal has issued rules governing such requests as well as a Practice Direction on Reconsideration to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

5The Tribunal’s Practice Direction on Reconsideration includes the following:

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 change the way it presented 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 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 her request for reconsideration satisfies any of the criteria set out in Rule 26.5 upon which she relies. The applicant relies upon the criteria identified in Rule 26.5(a), (c) and (d).

10The applicant first claims that the man who appeared before me and testified as Constable Gracey was an “impostor” and fabricated his evidence that he was at the scene. This rather remarkable allegation is made on the basis of the applicant’s assertion that Constable Gracey was not the police officer that she met at the scene. At the hearing, the applicant stated that she did not recognize Constable Gracey as having been the White police officer described in her testimony. The hearing in this matter occurred some three and a half years after the incident at issue. Given the passage of time, it is not terribly surprising to me that the applicant may not have recognized Constable Gracey, but to move from that to an allegation that the person who testified before me was not Constable Gracey is simply untenable. I note that, had the applicant raised such an allegation at the hearing, the identity of the person testifying before me likely could have been established rather quickly through photo identification, but no such allegation was raised. In my view, there is simply no basis to support this allegation.

11The applicant next alleges that Constable Koppaithara fabricated his evidence when he testified that he had taken the applicant’s statement at the scene, despite the fact that the applicant’s statement appears in his memo notebook with his notes on the date of the incident. The applicant alleges that she could prove this assertion if the Tribunal had not given permission for the video surveillance to be “destroyed”. The video surveillance produced by the Bank of Montreal pursuant to this Tribunal’s direction was not, in fact, destroyed. It was made available by the Bank to be viewed by the parties, and was filed with the Tribunal on the day of the hearing. For the reasons stated in my original Decision, I did not view the video surveillance because all parties agreed that it did not capture the incident in the bank manager’s office or interactions between the applicant and the police, and no-one suggested any other basis on which this evidence might be relevant.

12The applicant states that Constable Koppaithara could not consistently corroborate Constable Gracey’s testimony, and responded to some of the applicant’s questions during cross-examination by saying “I don’t know”. It is true that the evidence of the two officers was not always consistent, but in my view that did not take away from their credibility on the main points of their testimony. And a witness responding to a question by saying that he does not know is not a basis for rejecting his testimony in its entirety.

13The applicant also takes exception to my assessment of her credibility in relation to my assessment of the bank manager’s credibility. This issue is fully addressed in my original Decision, and I see no reason to change my view. The applicant alleges that the bank manager was not consistent in her testimony, and refers to this witness demonstrating where the applicant was standing and allegedly changing her evidence about which shoulder the applicant was standing over. This alleged inconsistency was not raised by the applicant at the hearing, and was not put to the bank manager when the applicant was given the opportunity to cross-examine this witness. I do not recall the bank manager being inconsistent in her testimony on this point. In my view, it is inappropriate to raise this kind of issue by way of a reconsideration request, when it was never raised at the hearing.

14The applicant also makes the bald allegation that I was partial to the bank manager and not paying attention to the bank manager’s testimony, but without any reference to what part of her evidence was allegedly missed. In fact, I paid very close attention to the testimony of all witnesses who appeared before me, as well as to the documents in evidence before me, and in my original Decision provided a detailed assessment of the evidence submitted by both parties.

15The applicant alleges that during the hearing, she attempted to ask some questions that were “shot down” by respondent counsel. There were occasions during the hearing when respondent counsel objected to a question put by the applicant or to how the question was phrased, which is not uncommon in any legal proceeding. None of the applicant’s questions were “shot down” by respondent counsel, as she had no authority at the hearing to do so. I ruled as to the appropriateness of any question to which an objection was raised and, if necessary, assisted the applicant in re-framing the question properly, given that she was self-represented.

16The applicant alleges that Constable Gracey testified that the fight between her and the bank manager was “consensual”. Nothing could be further from the truth. Constable Gracey’s evidence is that during a telephone call the following morning, it was the applicant who stated that she had been told that it is not illegal if two people consent to fight. Constable Gracey’s evidence was that he replied to the applicant that this was not a consent fight in his mind, because it was initiated by the applicant’s behaviour. This evidence is consistent with what I found in my original Decision.

17The applicant attempts to portray this as racial discrimination on the basis that the Black woman was labelled the aggressor and the White woman was labelled the victim. I appreciate that such a dynamic may occur in some circumstances. However, in this case, I have found based on the evidence that the applicant was in fact the aggressor in the altercation, and despite that fact, assault charges were not laid against her. As I stated in my Decision, that is not evidence of racial discrimination.

18The applicant alleges that she was asked by respondent counsel, “do you see why you should not have gone in the bank?”, which the applicant interprets as suggesting that she, as a Black woman, should not have been entitled to enter bank premises. No such question was asked of the applicant by respondent counsel. Rather, the question that was put to the applicant was whether, having had time to reflect on the matter, she now understands that it was not a good idea for her to have gone into the bank manager’s office and to push, shove and try to choke the bank manager, to which the applicant responded that she had the right to defend herself.

19The applicant alleges that, in assessing the applicant’s credibility, I should not have been critical of her for stating things in her testimony that were not in her Application. This point is addressed at para. 15 of my original Decision. I do not disagree that testimony at a hearing sometimes fleshes out further details of incidents described in an Application. However, as stated in my original Decision, the applicant’s testimony did not just flesh out what was stated in her Application. Her testimony raised key points not mentioned in the Application or that were inconsistent with descriptions used in the Application, in a way that I found to be embellishment. I stand by that assessment of the applicant’s testimony.

20The applicant finally takes issue with my determination that the video surveillance evidence was not relevant to this proceeding. This issue is addressed at para. 7 of my original Decision. Before me, all parties agreed that the video did not capture the police activity at the scene. The applicant now asserts that this corroborates her testimony that there was little communication between herself and the police at the scene. That is not what is stated in the Application nor was it what was stated in the applicant’s testimony before me, where she described significant interaction with the police at the scene. The point is that, based upon what I was told by the parties at the hearing, none of this interaction was captured by the surveillance video.

21The applicant also takes issue with my ruling that it was too late for the applicant to take issue with the redactions from the surveillance video, given that she had had an opportunity to view the video several months earlier and had not raised any such issue in advance of the hearing. The applicant points to documentation filed with the Tribunal where she had requested an unredacted copy of the surveillance footage. I was aware of that. However, the Tribunal’s May 1, 2014 Case Assessment Direction expressly referenced the Bank’s intention to redact the video to prevent the identification of individuals other than the applicant and noted that the adjudicator assigned to conduct the hearing could address any issue about these redactions. My point is that the applicant viewed the redacted video several months prior to the hearing, and so would have been aware of the redactions made by the Bank. And yet she did not take any steps to raise any issue about the redactions with the Tribunal at any time after she viewed the redacted video until the very day of the hearing. I stand by my ruling that it was too late at that point for her to raise this issue.

22In the end, the applicant has not pointed to any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; she has not pointed to any established case law or Tribunal procedure with which the original Decision is in conflict; and she has not satisfied me that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

23For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.