Oyewumi v. University of Guelph, 2016 HRTO 134

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Olubukola Oyewumi

Applicant

-and-

University of Guelph and Alan Kerr

Respondents

RECONSIDERATION DECISION

Adjudicator: Genevieve Debane

Date: January 29, 2016

Citation: 2016 HRTO 134

Indexed as: Oyewumi v. University of Guelph

WRITTEN SUBMISSIONS

Olubukola Oyewumi, Applicant

Self-represented

1On July 31, 2015, the Tribunal issued its Decision, 2015 HRTO 1027, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

2Under 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 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.

3The Tribunal has issued Rules governing these requests as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers. Rule 26 states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision.

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; or

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

4The applicant relies on Rules 26.5 (a), (c) and (d). He provides a number of reasons in support of his Request:

a. The Decision contains false facts and misrepresentation;

b. I did not deal with certain issues and introduced others;

c. I had clandestine communications with the respondents which raises a legitimate concern of compromise, bias and collusion with the respondents and led to a premeditated outcome; and

d. It took almost one year from the date of the hearing to issue the Decision.

5The applicant takes the position that I misapplied the law with respect to the issue of delay, including by introducing the new issue of “subject-matter jurisdiction” in my decision. The applicant is of the view that because the Tribunal issued Case Assessment Directions in the matter that this is evidence that it had taken jurisdiction over the subject-matter of the Application and that I should not have introduced this new issue in my Decision. The applicant also takes the position that I should not have addressed the issue of good faith because he did not raise it in his submissions.

6The Tribunal, in its assessment of the issue of delay, must determine the date of the last incident of alleged discrimination, and, if this date is beyond one year from the date of filing, whether there is a good faith explanation for the delay. I am of the view that the applicant had notice of all of the issues which were considered in the Decision. The Tribunal issued a Case Assessment Direction on April 25, 2014, which directed that a preliminary hearing would be held to determine certain issues, including whether the Application should be dismissed on the basis of delay and and/or as having no reasonable prospect of success. Specifically, with respect to the issue of delay, the Tribunal has characterized this as a jurisdictional issue. See for example, Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District, 2008 HRTO 424 at para. 15. There is no legal basis for the applicant’s assertion that the Tribunal can confer jurisdiction unto itself by simply issuing a Case Assessment Direction. In my view the issue of delay is intrinsically linked to the issue of good faith and it was not improper for me to consider and/or address this issue as it formed part of the Tribunal’s inquiry into the matter.

7Further, in light of my findings, that the Application was not filed within the prescribed time period and was therefore outside of the Tribunal’s jurisdiction, there was no need to decide any of the other remaining issues.

8The applicant also takes issue with my characterization of the facts in this case and that I misstated a date. Having considered the applicant’s submissions, if there are any errors, they are not material since they do not affect my finding at paragraph 15 of the Decision that the last incident of discrimination occurred on August 18, 2011.

Bias

9Numerous decisions have noted that the protection against bias or a reasonable apprehension of bias is intended to uphold public confidence in the fairness of administrative agencies and their decision-making procedures, and thus require both independence and impartiality. As the Supreme Court said in Valente v. The Queen, 1985 CanLII 25 (SCC) at p. 685:

Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case.

10Because the person whose perception is being tested must be reasonable, that reasonable observer is presumed to have some knowledge and understanding of the judicial (or administrative) process and the nature of decision-making (R. v. S. (R.D.), 1997 CanLII 324 (SCC) at para. 31), not to have a “very sensitive… conscience” (R. v. S. (R.D.), at para. 37), and be informed of and consider the context surrounding the impugned behaviour (Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at para. 77; Marchand v. Public General Hospital Society of Chatham, 2000 CanLII 16946 (ON C.A.).

11I am of the view that a reasonably informed observer who has some knowledge of the Tribunal’s process would not find that I am biased and/or that there is any collusion in this case. In support of his position that I have had improper communications in this matter, the applicant relies on an email that I received from the respondents’ counsel in which he forwarded to me written submissions. The parties had been provided with my email contact information in order to assist the parties with the resolution of this matter after the parties agreed to engage in mediation-adjudication, and signed an agreement to the effect. Immediately upon receipt of these written submissions I wrote to the respondent, copying the applicant on the email, that these submissions had to be filed with the Registrar and not with me directly. The applicant did not raise any objection at that time, or take the position that this occurrence created a reasonable apprehension of bias and/or actual bias.

12In these circumstances, I find that a reasonably informed person familiar with the Tribunal’s practices would not view the fact that this email was sent to me directly as basis that I recuse myself from this matter.

Order

13For all of these reasons the applicant’s Request to reconsider the Decision is denied.