Mozafarian v. Saint Elizabeth Health Care, 2016 HRTO 1620

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Farah Mozafarian

Applicant

-and-

Saint Elizabeth Health Care

Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: December 15, 2016

Citation: 2016 HRTO 1620

Indexed as: Mozafarian v. Saint Elizabeth Health Care

1This Reconsideration Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2016 HRTO 784, dated June 8, 2016 (the “original Decision”), which dismissed the Application as having no reasonable prospect of success and for delay.

2On June 13, 2016, 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. 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. 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 of Procedure 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 the criteria set out in Rule 26.5 relied upon in the Request. The applicant relies upon the criteria identified in Rule 26.5(c) and (d).

10The written submissions filed by the applicant largely re-state incidents and submissions that were reviewed and considered by me in rendering my original Decision. As stated above, it is not the purpose of reconsideration to allow a party an opportunity to re-argue the case.

11Some allegations are raised by the applicant regarding what is alleged to have occurred at the preliminary hearing. The applicant alleges that, on the day of hearing, M.T. stormed into the hearing room just before the hearing started, and was shouting and pointing at the applicant saying, “what is she doing here, something should have happened to her”. As this is alleged to have occurred prior to the commencement of the preliminary hearing, I was not present and cannot speak to what, if anything, occurred. I can say that no such alleged incident was raised with me once the preliminary hearing started.

12The applicant also makes certain allegations that she attributes to the “chairman”. I can only assume that this reference is to me as a Vice-chair with the Tribunal and the adjudicator assigned to hear the case. The applicant alleges that, apparently some point early in the hearing, the “chairman” stated “something should have happen[ed] to you”. I made no such comment, nor did I hear anyone make any such comment at the preliminary hearing. The applicant also alleges that at some point during the preliminary hearing, the “chairman” stated “we don’t do bull[y]ing here”, to which she alleges she said “it is bull[y]ing”. If this alleged comment is intended to be attributed to me, I made no such comment at the preliminary hearing. Respondent counsel did respond to the applicant’s allegations of bullying during submissions, but there is nothing inappropriate about that.

13There are two further specific alleged incidents that are raised by the applicant in her submissions in support of her Reconsideration Request, which are not explicitly referenced in the original Decision. The first relates to an alleged incident where an unidentified nurse is alleged to have told a client of East Indian origin that he had “yucky and gooey skin”. While I was aware of this allegation at the time, I did not reference it in the Decision as it appears to have little if any relevance to the applicant’s allegations of discrimination against herself. In any event, for the reasons set out in the original Decision at paras. 58 to 61, the most this alleged incident could indicate is that this unidentified nurse may have had a discriminatory bias against an East Indian client, which does not support the applicant’s allegations against management relating to events within the one-year period prior to the filing of her Application.

14The applicant also raises an incident from 2011 relating to a phone call she received from her then supervisor when the applicant was off sick, and a subsequent meeting with the Regional Director and Human Resources manager to discuss this incident. This alleged incident is not specifically discussed in the original Decision as it occurred well before the one-year period prior to the filing of the Application. As I found in the original Decision that all of the alleged incidents within the one-year period had no reasonable prospect of success, there was no need to get into the details of the applicant’s allegations regarding prior alleged incidents. Rather, in the context of addressing the delay issue, the issue was whether the applicant could satisfy the Tribunal that the delay in raising these prior allegations was “incurred in good faith”, which requires some reasonable explanation for the delay. And in the result, I found that there was no reasonable explanation for the delay, which led to the dismissal of the untimely allegations.

15In her written submissions, the applicant also states that during the preliminary hearing, she gave “many examples of derogatory comments and inappropriate behaviour that are evidence of discrimination”. All of the examples provided by the applicant, as set out in her written submissions in support of her Reconsideration Request, are expressly considered in the original Decision.

16The applicant further takes issue with the removal of the personal respondents. I stand by the reasons provided in the original Decision in this regard.

17With regard to the delay issue, the applicant takes the position that there was a series of incidents of alleged discrimination that extended to her allegations within the one-year period. The problem with this submission is that in the original Decision, I found that all of the allegations arising from events within the one-year period had no reasonable prospect of success. And, as stated in the Decision at para. 70, this Tribunal has determined in a series of cases that timely allegations that have no reasonable prospect of success cannot be considered for the purpose of determining whether there is a “series of incidents” within the meaning of s. 34(1)(b) of the Code.

18The applicant also references the issue regarding her E.I. benefits, which was expressly reviewed and considered in the original Decision at paras. 66 to 68.

19Having reviewed and considered the applicant’s submissions in support of her Request for Reconsideration, I do not find that the original Decision is in conflict with established jurisprudence or Tribunal procedure. Nor do I find that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

20For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.