John v. Alexanian Law Firm, 2016 HRTO 1519

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darren John

Applicant

-and-

Alexanian Law Firm

Respondent

RECONSIDERATION DECISION

Adjudicator: Douglas Sanderson

Date: November 28, 2016

Citation: 2016 HRTO 1519

Indexed as: John v. Alexanian Law Firm

WRITTEN SUBMISSIONS

Darren John, Applicant

Self-represented

Alexanian Law Firm, Respondent

Michael Simaan, Counsel

1The applicant requests Reconsideration of the Tribunal’s Decision of May 5, 2016, 2016 HRTO 601, dismissing this Application for lack of jurisdiction pursuant to section 34(11) of the Code (the “Decision”).

2The circumstances in which Reconsideration may be granted are set out in Rule 26.5:

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.

3The Tribunal’s Practice Direction on Reconsideration includes the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

4The applicant filed a Request for Reconsideration (the “Request”) on May 30, 2016 and relies upon Rules 26.5(b) and 26.5(d).

Procedural Background

5In the Application the applicant alleges that he was subject to explicit racism during his employment with the respondent and was dismissed because he is black. The respondent filed a Response in which it requested dismissal of the Application under section 34(11) because the applicant filed a claim based on the same fact in a civil court requesting a remedy based on the alleged human rights violation. On March 9, 2016, following the Tribunal’s direction, the applicant advised the Tribunal that he had filed a Notice of Discontinuance with the Court in November 2015.

6By Case Assessment Direction dated April 5, 2016, the Tribunal directed the respondent to file submissions addressing whether the Notice of Discontinuance has been filed with the Court and whether the action has been withdrawn. The applicant was entitled to reply to the submissions. On April 14, 2016, the respondent filed submissions, as detailed in the Decision, in which it submitted that the applicant’s claim in civil court had not been discontinued.

7Apparently because of bail conditions that prevent direct communication between the parties, the respondent did not sent its submissions directly to the applicant, as is required by the Tribunal’s Rules of Procedure. The Tribunal’s records indicate that the Tribunal forwarded the respondent’s submissions to the applicant by electronic mail on May 3, 2016 and that the applicant responded later that day. The applicant submitted that the respondent was attempting to mislead the Tribunal. The applicant submitted that he would provide the order staying his civil action and accepting the discontinuance of the human rights components of his civil claim by May 5 or 6, 2016. The applicant stated these orders were made orally by the Court. Unfortunately, these submissions were not placed before me before rendering the Decision. The applicant did not, however, produce, then or since, an order indicating that the human rights elements of his civil claim were discontinued before he filed this Application.

8I dismissed the Application based on the record before me.

Submissions

9The applicant submitted that he did not receive any request to respond to the respondent’s submissions and was informed by the Tribunal that there was no deadline in place. The applicant pointed to an e-mail message in which he pointed out to the Tribunal’s Case Processing Officer that the Case Assessment Direction set a deadline for responding to the respondent’s submissions, but he had not received those submissions. The applicant submitted that he then received notification that his Application has been dismissed. The applicant submitted that the information provided by the respondent regarding the civil action was inaccurate and submitted that the Tribunal should require the respondent to demonstrate that his civil action making human rights claims remains “live”.

10The applicant also provided the submissions he would have made had he been given proper notice of the respondent’s submissions regarding the application of section 34(11) of the Code. The applicant stated that respondent is attempting to mislead the Tribunal and that the Tribunal should hold a hearing to determine whether there is a live claim for racial discrimination before the Court. The applicant submitted that the respondent referred to different Applications.

11On November 2, 2016, the Tribunal directed the respondent to reply to the applicant’s submissions by November 16, 2016, which it did. As the applicant noted, the respondent referred to a previous application filed by the applicant against the respondent (Tribunal File Number 2015-21427-I). This previous application was also dismissed pursuant to section 34(11) in light of the same civil action in issue in this Application. In that regard, it appears that the two applications make essentially the same allegations regarding the applicant’s employment with the respondent.

12In any event, the respondent submitted that the applicant has not provided proof that the court action in question was discontinued. The respondent submitted that the applicant was required to file the appropriate documents to withdraw/discontinue his civil claims, which he has not done. The respondent noted that the applicant’s civil action is stayed because the applicant has not paid cost orders, but the action can continue once the orders are satisfied.

Analysis and Decision

13As a result of the delay in delivering the applicant’s submissions regarding section 34(11), the Tribunal rendered the Decision without the benefit of his submissions. In my view, this amounts to a breach of natural justice that is a factor that outweighs the public interest in the finality of Tribunal decisions. The Tribunal shall reconsider the Decision in light of the applicant’s submissions regarding section 34(11)

14The applicant has the onus of establishing that the Application is within the Tribunal’s jurisdiction. As noted in the Decision, the applicant’s civil claim seeks remedies with respect to infringement of his rights under the Code, based on the same facts as this Application. To avoid the mandatory bar in section 34(11), the applicant had to establish that he discontinued his civil action against the respondent before he filed this Application. See Visic v HRTO and University of Windsor, 2015 ONSC 7162 and Rhijnsburger v. Walmart Canada Corp., 2014 HRTO 1749. Other than a bare assertion, the applicant has not produced any proof that this civil action has been discontinued to counter the respondent’s submissions and supporting documents to the contrary. In particular, the applicant has not produced any court order to that effect. In these circumstances, I find that there is no proper basis for finding that the applicant discontinued the civil action in question before he filed this Application or at all.

15Consequently, I find that this Application is barred by section 34(11). The Application is dismissed.