Masoud Tchavoshi v. Mehdi Kiawer, 2015 HRTO 801

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Masoud Tchavoshi

Applicant

-and-

Mehdi Kiawer

Respondent

RECONSIDERATION DECISION

Adjudicator: Keith Brennenstuhl

Date: June 16, 2015

Citation: 2015 HRTO 801

Indexed as: Tchavoshi v. Mehdi Kiawer

WRITTEN SUBMISSIONS

Masoud Tchavoshi, Applicant

Self-represented

Introduction

1On January 28, 2015, the Tribunal issued its Decision in this Application, 2015 HRTO 131, dismissing the Application (the “Decision”). The applicant has asked the Tribunal to reconsider its Decision (the “Request”) in accordance with section 45.7 of the Human Rights Code, R.S.O. 1990 c. H.19 as amended (the “Code”).

2The applicant alleged that he was subject to discrimination with respect to services on the basis of race, ancestry, place of origin and ethnic origin. At the end of the hearing the parties were invited to provide final submissions in writing. The applicant did not provide any submissions rather he made a complaint to the Human Rights Commission and the Attorney General regarding my conduct during the hearing.

The request for reconsideration

3Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that he Tribunal reconsider its decision in accordance with Tribunal rules.

(2) Upon request under subsection (1) or on its own initiative the Tribunal may reconsider its decision in accordance with its rules.

4The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to applicants and respondents on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008, amended June 2008 and March 2010) Rule 26.5 provides:

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; 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

d. Other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

5The Tribunal’s Practice Direction on Reconsideration contains 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 there circumstances outweigh the public interest in the 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.

6The applicant relies on Rule 26.5 (a), (c) and (d) as the grounds for reconsideration. He also raises apprehension of bias.

26.5(a) - New evidence

7According to the Request, I limited the applicant’s production of various documents and limited the applicant’s questions of the respondent during the hearing, apparently, thereby, excluding evidence that the applicant regarded as important. It is not clear from the Request what documents were excluded and what questions were not permitted and/or excluded. That being said, Tribunal adjudicators routinely make rulings and direct the parties to address pertinent issues regarding the case. Limiting the production of documents and questions where the documents and questions are not relevant to the case does not create a reasonable apprehension of bias, if that in fact is what the applicant is alleging in his Request.

8In any event, the test requires that there be new facts or evidence that could be potentially determinative of the case and that could not reasonably have been obtained earlier. The applicant has not identified any new evidence that he was unable to obtain prior to the hearing or how that evidence would be determinative of his case.

26.5(c) - Conflict with established law

9The applicant has failed to indicate in the Request how the Decision is in conflict with established case law or Tribunal procedure or how the proposed reconsideration involves a matter of general or public importance. Rather the applicant points to, what in his view, are inadequacies, mistakes and omissions in the Decision itself. For example, he indicated that I failed to address in the Decision that at the hearing the applicant moved for my recusal “due to serious prejudice, reasonable apprehension of bias and impartiality”. As well he thought I erred when I did not disclose in the Decision that before issuing the Decision, a misconduct complaint had been made to the Chair of the Ontario Human Rights Commission and the Ministry of the Attorney General even though I only became aware of the complaint on reviewing the Request. In addition, he claimed that I erred when I did not disclose in the Decision that I denied the applicant’s request that the hearing be recorded and that I did not provide reasons for the denial. In fact at the hearing I pointed the applicant to the Tribunal’s practice direction on recording hearings which indicates that the Tribunal does not normally record its proceedings.

10That being said, the applicant has failed to demonstrate how the Decision, even with the alleged deficiencies, is in conflict with established case law or Tribunal procedure. Moreover, the applicant has failed to address how the proposed reconsideration involves a matter of general or public importance.

26.5(d) - Public interest in the finality of decisions

11Although the applicant indicates that this is a reason for his Request he does not identify any factors that outweigh the public interest in the finality of the Decision. Consequently, I must find that the applicant has not met the burden of establishing this threshold criteria justifying reconsideration.

Apprehension of bias

12The applicant’s allegations of a reasonable apprehension of bias appear to be connected to the fact that counsel for the respondent appeared before me on several occasions at another tribunal; that before releasing the Decision I was aware of the applicant’s misconduct complaint to the Human Rights Commission and the Attorney General; and, that I limited his production requests and his cross examination of the respondent.

13The test for reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394-5:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon 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.

14There is a strong presumption of judicial or quasi-judicial impartiality. To overcome the presumption, the party alleging a reasonable apprehension of bias must establish the presence of serious grounds: Wewaykum Indian Band v. Canada, 2003 SCC 45. The applicant has not pointed to any extrinsic evidence to support an allegation of a reasonable apprehension of bias. Instead he argues that respondent’s counsel appearance before me in other proceedings, his misconduct complaint prior to the release of the Decision (even though I only became aware of the complaint on reviewing the Request), the limits I put on his production and cross-examination of the respondent and the ultimate dismissal of his Application is evidence of an apprehension of bias. This argument is insufficient to demonstrate a reasonable apprehension of bias on my part.

15For these reasons, the Request is denied.