Tarek Ibrahim v. Hilton Toronto, 2016 HRTO 1262

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tarek Ibrahim

Applicant

-and-

Hilton Toronto

Respondent

RECONSIDERATION DECISION

Adjudicator: Alison Renton

Date: September 27, 2016

Citation: 2016 HRTO 1262

Indexed as: Ibrahim v. Hilton Toronto

WRITTEN SUBMISSIONS

Tarek Ibrahim, Applicant

Self-represented

1The applicant filed a Request for Reconsideration (“the Request”) of a Decision 2016 HRTO 627 issued by the Tribunal on May 10, 2016 (“the Decision”) dismissing his Application. The Request was recently brought to my attention.

2The Tribunal has not directed the respondent to file submissions in response to the Request.

3For the reasons set out below, the applicant’s Request is denied.

background

4This file is the second Application the applicant filed against the respondent. The first Application was partially upheld by the Tribunal. See Ibrahim v. Toronto Hilton, 2013 HRTO 673.

5Following release of the decision in the first Application, the parties participated in 14 hearing days pertaining to the merits of the second Application, until the respondent submitted that there was a settlement following mediation-adjudication. There were five additional days held to hear the parties’ positions on whether or not there was a settlement. During those latter days, the Tribunal heard evidence from the applicant and the respondent’s director of human resources.

6The applicant was initially represented by a lawyer from the Human Rights Legal Support Centre (“the Centre”). Part way through the merits hearing, another lawyer from the Centre assumed carriage of the file. The second lawyer represented the applicant until the respondent submitted that there was a settlement, following which the Centre no longer represented the applicant. The applicant was self-represented for several hearing days, and on the eighteenth and nineteenth hearing days, the applicant was represented by a new lawyer.

7In the Decision, the Tribunal found that there was a settlement of the second Application and, in light of the settlement, closed its file.

the request

8The applicant requests that the order in the Decision finding a settlement be set aside and that a continuation of the hearing into the merits of his Application proceed.

9He submits that he has reviewed the Decision a number of times and submits that there are “… many errors, and untruths, which are difficult to overlook and accept”. He submits that there are many issues which were not addressed appropriately and many important points that were casually recognized, even though they were critical to finding the truth. He makes detailed submissions, organizing them in reference to specific paragraphs numbers in the Decision.

10Generally, the applicant’s submissions can be grouped as follows, with references to paragraphs in the Decision in parentheses:

• Corrections of what he recalls some of the evidence to be (paras. 44 and 53);
• Further evidence about what was discussed or took place during the hearing on February 13, 2015 (paras. 6 and 10) and February 25, 2015 (para. 14);
• Further evidence about the mediation-adjudication held on February 12, 2015 (para. 53, 59, 142);
• Submissions about why there was no settlement on February 12, 2015 (paras. 59 and 158), and the impact of a forced settlement upon him (para. 158);
• Challenges to the evidence of the respondent’s witness (para. 64);
• Challenges to the submissions made by the respondent (para. 82);
• Explanations about why he did not call the Centre lawyer as a witness (para. 148); and
• Information about post-hearing issues.

law and analysis

11Rule 26.5 of the Tribunal’s Rules of Procedure (“the Rules”) set out in the limited circumstances in which reconsideration will be granted:

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.

12The Tribunal’s “Practice Direction on Reconsideration” and case law makes it clear that reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. It is a discretionary remedy. See, for example, Sigrist and Carson v. London District Catholic School Board et. al., 2008 HRTO 34. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obligated to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out considerations for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

13The applicant bases his Request upon Rules 26.5(a) and (d).

Rule 26.5(a)

14In his Request, the applicant sets out facts, evidence, and submissions which were already before the Tribunal prior to the Decision being issued. Almost all of these had been raised by the applicant while he was self-represented, and later when he was represented by his new counsel, Ms. Mohammed, on days 18 and 19 of the hearing. Some information is submitted about what has occurred after the Decision was released.

15It is clear that the Request is an attempt to challenge factual findings made in the Decision. However, the applicant and/or his counsel either made submissions about these points during the hearing, or had the opportunity to do so.

16I do not find, upon review of the Request, that the applicant is raising any new facts or evidence. If there was an error in hearing a word the applicant said, “committed” rather than “admitted to” in paragraph 44 of the Decision, it has no bearing to my ultimate finding that there was a settlement. Whatever word was used by the applicant in paragraph 44, I certainly did not interpret it as being a threat to anyone. However, to the extent that there are new facts or evidence, the applicant did not make any submissions about how they could not reasonably have been obtained earlier. Information that he included that occurred after the Decision was released cannot be the basis for a Request to be granted.

17The applicant, in the Request, makes submissions about why he did not call Ms. Shen and/or the students-at-law as witnesses during the hearing. He submits that he did not want to waive solicitor-client privilege, that Ms. Shen’s evidence was redundant, and that he was not asked why he did not call them as witnesses.

18At para. 147 of the Decision, I concluded that the applicant had not been able to prove that he withdrew his settlement offer. At para. 152 of the Decision, I drew an adverse inference against the applicant for failing to call Ms. Shen and/or the students-at-law as witnesses. At paras. 148 to 152, I found: the applicant could have called Ms. Shen and/or the students-at-law as witnesses in support of his position that he withdrew the offer; part of the discussion was said in my presence such that the applicant could not claim solicitor-client privilege over that part of the discussion; several discussions with the applicant, while he was self-represented and later when he was represented, took place during the hearing about calling Ms. Shen as a witness and about solicitor-client privilege; and directions about how to call his former counsel as a witness were set out in a March 13, 2015 Case Assessment Direction.

19The applicant’s submissions in the Request with respect to calling Ms. Shen and/or the students-at-law as witnesses are attempts to repair or reargue his case.

20The Tribunal has held in many reconsideration decisions that a reconsideration request is not an opportunity to repeat a party’s earlier submissions or an attempt to reargue its case because one disagrees with the Tribunal’s Decision. See, for example, Smith v. Ontario (Education), 2012 HRTO 762, Pakarian v. University of Toronto, 2012 HRTO 560, and Dwyer v. Chrysler Canada, 2009 HRTO 385.

21For these reasons, the applicant’s Request based upon Rule 26.5(a) is dismissed.

Rule 26.5(d)

22The applicant also bases his Request upon Rule 26.5(d), other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

23The Tribunal has granted reconsiderations where it finds that factors that outweigh the public interest in the finality of Tribunal decisions. See, for example, Garrie v. Janus Joan Inc., 2012 HRTO 1955, where the Tribunal held that a “series of incidents” within the meaning of section 34(1)(b) of the Code has been inconsistently applied across the Tribunal’s cases and improperly applied in the initial decision to warrant granting the reconsideration.

24In this case, the applicant has not made any submissions responsive to Rule 26.5(d). It is clear that he disagrees with the Decision, asserts that there are factual errors and takes issue with the findings, including credibility findings, and ultimate conclusion. However, this does not warrant the granting of reconsideration. He does not present any factors that exist that would outweigh the public interest in the finality of Tribunal decisions.

25In sum, I find that the applicant has not established the existence of any factors as set out in Rules 26.5(a) or (d) that would warrant reconsideration.

26The Request is denied.