Yaylacam v. Toronto Police Services Board, 2016 HRTO 382

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sedat Yaylacam Applicant

-and-

Toronto Police Services Board Respondents

RECONSIDERATION DECISION

Adjudicator: Daniel Randazzo Date: March 23, 2016 Citation: 2016 HRTO 382 Indexed as: Yaylacam v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Sedat Yaylacam, Applicant

Bakthier Shakhnazarov, Counsel

Introduction

1The applicant seeks reconsideration of Decision 2015 HRTO 715, dated June 1, 2015, with respect to its findings and dismissal of the Application.

2For the reasons set out below, I find that the applicant has not established the existence of any of the criteria in Rule 26.5 of the Tribunals Rules of Procedure (“Rules”) that would cause me to exercise my discretion to reconsider my Decision.

THE DECISION BEING CHALLENGED

3The Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleged that the respondents discriminated against the applicant with respect to goods and services because of ethnic origin, sex and marital status. In summary, the applicant alleged that the respondent discriminated against him by arresting him, causing him to be the subject of a strip search, arresting him again following an alleged breach of recognizance, and by failing to arrest the alleged victim who lodged the complaint against the applicant.

4By Decision 2015 HRTO 715, I dismissed the Application, finding that there was insufficient evidence to support a finding that the respondent discriminated against the applicant as alleged.

APPLICABLE PRINCIPLES

5In 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 Tribunal has made a decision in a case, parties are entitled to treat the matter as completed and final, subject to limited exceptions.

6The circumstances in which a Request for Reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s Rules:

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.

7The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Parties may ask the HRTO to reconsider a final decision. The HRTO may also reconsider a decision on its own initiative where it considers it appropriate.

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.

The rules for reconsideration are found in Rule 26 of the Rules of Procedure. A request for reconsideration will only be granted if the request meets one of the requirements in Rule 26.5.

Examples of situations where the HRTO has refused a request for reconsideration are where:

• the request asks for review of an interim decision which does not finally decide the party’s rights or interests;

• the request repeats arguments the party has made at the hearing or in written submissions;

• a party disagrees with and wishes to challenge a finding of fact, including findings made about the credibility of witnesses;

• a party wishes to raise new arguments that were not made, but could have been made at the hearing or in written submissions;

• a party received notice that an application could be dismissed as abandoned if steps were not taken, but did not follow the Tribunal’s directions by the deadline.

Examples of situations where the HRTO has reconsidered its decision are:

• where a party, through no fault of its own, did not receive notice of a hearing or request for submissions; or

• where exceptional factors exist that outweigh the public interest in the finality of decisions including inconsistencies in the HRTO’s case law.

8As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen 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.

THE REQUEST FOR RECONSIDERATION

9The applicant seeks reconsideration under Rule 26.5(c) and (d). Schedule “A”, paragraph 27 (a) to (l) of the respondent’s Request for Reconsideration sets out the grounds for reconsideration as follows:

27. The Applicant asks to reconsiders[sic] the Decision on the basis that:

(a) it doesn’t serve the public interest;

(b) it is in conflict with the principle of natural justice where wrongdoing has to be punished;

(c) it was made on a quick hand after the applicant’s letter to the Board where he asked for the reason of the decision not being released for almost seven months;

(d) it is prejudicial towards the applicant;

(e) the facts were misrepresented and misinterpreted;

(f) the respondent’s officers were awarded for lying under oath;

(g) the fact of illegal strip-search hasn’t been evaluated;

(h) the Applicant’s two wrongful arrests resulted from not investigating thoroughly the allegations of a female complainant and, the discrimination hadn’t been evaluated;

(i) the decision encourages the police officers to keep discriminating the arrestees in the police stations as adjudicators prefer to trust and believe to their version of the stories;

(j) the Applicant’s pain, suffering and health deterioration resulted from the five days and nights spent in police custody and jail resulted from the discriminatory conduct of the Respondent’s officers hadn’t been evaluate;

(k) the Applicants acquittal on all six charges was disregarded completely that brings the criminal court’s acquittal decision in disrepute;

(l) it discourages the people who were discriminated by police to seek a remedy from the HRTO that may negatively result on the human rights record of Canada.

10The applicant’s grounds for reconsideration can be classified into and are effectively subsumed by the categories of: “natural justice” and “public interest”. I have dealt with the grounds on this basis.

ANALYSIS

11As noted above, I am dismissing the Request for Reconsideration as the applicant has failed to establish the existence of any of the criteria in Rule 26.5(c) and 26.5(d) of the Tribunal’s Rules that might lead to reconsideration of the Tribunal’s decision. A reconsideration request under Rule 26.5(c) must establish that the Decision in is conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. I note at this juncture that the applicant has not cited any case law with which the Decision is in conflict.

12Under Rule 26.5(d), a Reconsideration Request must raise other factors which outweigh the public interest in the finality of Tribunal Decisions. Reconsideration is not available simply because a party disagrees with the Tribunal’s Decision, and it is not an opportunity for a party to reargue a case.

CONTRARY TO NATURAL JUSTICE

13The applicant claims that the Decision is contrary to natural justice on the basis that the “wrongdoing has to be punished.” It is sufficient to note that punishing wrongdoing is not a principle of natural justice and that the Code is remedial legislation aimed at remedying the effects of discrimination. The Code is not focused on punishing the individuals involved in discriminatory practices. See, Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 (ON SCDC).

14The applicant further claims that the Decision is contrary to natural justice on the basis that it prejudices the applicant. The applicant cites several examples or evidence of prejudice in the Decision, which include the applicant’s place of origin, the adjudicator not believing the applicant’s testimony, evaluating the respondent’s witnesses’ testimony in favour of the respondent, preferring the evidence of the respondent’s witnesses over the evidence of the applicant, not giving any weight to the fact the applicant was strip-searched and spent five days in jail, the fact that the applicant was acquitted of all criminal charges, not giving weight to the fact that the applicant’s ex-girlfriend was not charged despite the fact that applicant sent written requests that charges be laid, the fact that the Decision took a “long time” before it was released, and the fact that the Application was eventually dismissed.

15The applicant’s view that the Decision prejudiced the applicant is not supported by the facts. The matters raised by the applicant, specifically the reliability and credibility of witnesses, the weight to be given to the evidence, the fact that the applicant was strip-searched and the fact that the applicant spent several days in custody were all addressed by the parties and argued at the time of the hearing. The applicant now improperly seeks to revisit these issues in the Reconsideration Request. Furthermore, the length of time for the decision to be released and the fact the Application was dismissed do not demonstrate prejudice against the applicant and are not factors which demonstrate that the Decision is contrary to natural justice.

16The applicant further claims that the decision is contrary to natural justice on the basis that the facts were misrepresented and misinterpreted. The applicant claims that there was an initial failure to enter into evidence the transcripts of the applicant’s criminal trial. The applicant acknowledges that the transcripts were later entered into evidence. The applicant further claims that the transcripts from the applicant’s criminal trial were not evaluated. The applicant’s opinion is not supported by the facts. The transcripts from the applicant’s criminal trial were documents before me at the hearing of this matter, and were addressed by the parties during the hearing and during argument. The applicant offers his opinion with respect to the significance of the transcript; although the applicant’s opinion may be sincerely held, a reconsideration is not an opportunity for a party to reargue their case. These are not factors which would support a claim that the Decision is contrary to natural justice.

17The applicant claims that the Decision is contrary to natural justice on the basis that the “illegal” strip-search was not considered in the Decision. The fact that the applicant was subjected to a strip-search was the subject of evidence and argument and was ultimately reviewed and determined that the decision to conduct a strip-search was not made in discriminatory manner or based upon the improper grounds of sex, ethnic origin or marital status. I understand that the applicant does not agree with this finding; however, a reconsideration is not an opportunity for a party to reargue their case. Further, this is not a factor which would support a claim that the Decision is contrary to natural justice.

18The applicant claims that the Decision is contrary to natural justice on the basis that the applicant’s wrongful arrests resulted from a failure to thoroughly investigate the allegations of a female complainant. The applicant claims that his arrests were result of the respondent’s discriminatory acts. These facts, including the fact that the applicant was arrested and eventually acquitted of all charges and the allegation that the arrests were based upon the respondent’s discriminatory actions were addressed at the hearing and during argument. It bears repeating that a reconsideration is not an opportunity for a party to reargue their case. Further, these are not factors which would support a claim that the Decision is contrary to natural justice.

19Finally, the applicant claims that the pain, suffering and health deterioration resulting from his incarceration were not considered. The fact that the applicant was arrested and held in police custody were factors considered in determining whether the respondent’s actions were made in a discriminatory manner. Allegations that the applicant’s first and second arrests were motivated by improper grounds were canvassed during the hearing and these allegations were dismissed. I note that had there been a finding of discrimination, then the pain and suffering of the applicant would have been further considered in determining an appropriate remedy. These are not grounds for a finding that the Decision is contrary to natural justice.

20Although the Reconsideration Request is not framed in this manner, both Rule 26.5 (c) and 26.5(d) can encompass a claim that a Decision is contrary to natural justice. I have addressed the claim that the Decision is contrary to natural justice on the basis that it was made under both Rule 26.5 (c) and 26.5(d).

21Under Rule 26.5(c), the party seeking a reconsideration must establish that the Decision is in conflict with established jurisprudence or Tribunal procedure and involves a matter of general or public importance. Although the applicant asserts that the Decision was contrary to the principles of natural justice, the applicant has not advanced sufficient facts which supports that conclusion and has not advanced any facts which support a finding that the reconsideration involves a matter of public or general interest. Furthermore, the applicant has not cited or referenced any case which supports a finding that the Decision is in conflict with established jurisprudence. For these reasons, the Reconsideration Request, made pursuant to Rule 26.5(c), as it relates to a claim that the Decision is contrary to natural justice is denied.

22Under Rule 26.5(d) the party seeking reconsideration must advance “other factors” which outweigh the public interest in the finality of Tribunal Decisions. Having found that the applicant has not advanced sufficient facts, or case law, which support the conclusion that the Decision is contrary to natural justice, I further find that that the applicant, has not, as is required by Rule 26.5(d), advanced other factors which outweigh the public interest in the finality of Tribunal Decisions.

23The Reconsideration Request as it relates to a claim that the Decision is contrary to natural justice is denied.

PUBLIC INTEREST

24The applicant claims that the Decision does not serve the public interest in that it discourages others who believe that they have been discriminated against to come forward; it awarded the respondent for lying under oath; it encourages police officers to continue to discriminate; and puts the court’s decision acquitting the applicant into disrepute. Although it is not framed in this manner, the factors identified as “public interest” are factors normally associated with the criteria relating to 26.5(d).

25With respect to the applicant’s claim that the dismissal of his allegations will discourage others from coming forward and encourages police officers to continue to discriminate, the applicant’s views in this regard are not factors used to determine if the evidence at the hearing supported a finding of discrimination. Furthermore, the applicant’s views are not based upon any fact or factors which, if accepted, outweigh the public interest of finality in the Tribunal’s decisions.

26With respect to the applicant’s claim that the Decision rewards the respondent’s witnesses for lying under oath, the applicant draws this conclusion from his belief that the respondent’s witnesses lied under oath and his belief that the decision dismissing his application was wrong. The credibility of the witnesses was an issue argued at the hearing and addressed by the Decision. A Reconsideration Request is not an opportunity for a party to express their disagreement with the decision or an opportunity to reargue their case. The applicant has not advanced sufficient facts nor cited any case law which supports their beliefs or conclusion and more importantly, the applicant’s views do not allow me to make a finding under 26.5 (d) such that I would exercise my discretion and allow the reconsideration.

27The applicant’s acquittal on the criminal charges was addressed at the hearing, considered and referred to in the Decision. The Decision dismissing the applicant’s allegations of discrimination does not, in any way, suggest or imply that the court’s decision acquitting the applicant was wrong. The applicant expresses an opinion that the Decision brings the Court’s decision to acquit the applicant into disrepute and although this opinion may be sincerely held, it is not a factor that would outweigh the public interest in the finality of Tribunal Decisions.

28The applicant has not advanced sufficient facts, as required by Rule 26.5(c), which support a finding that the Decision is in conflict with established case law; nor has the applicant advanced an argument which supports the conclusion that the request for reconsideration raises a matter of general or public importance. Although it is apparent that the applicant has a strongly held view that he experienced discriminatory treatment, he has not made submissions that fall within the scope of Rule 26.5(d). The factors raised by the applicant in the Request for Reconsideration do not outweigh the public interest in the finality of Tribunal decisions.

ORDER

29For the above reasons, the applicant’s Request for Reconsideration is dismissed.