Perumal v. Toronto Police Services Board, 2016 HRTO 561

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Suresh Perumal

Applicant

-and-

Toronto Police Services Board, William Blair, Simon Fraser, Walid Osman, and Amy Patterson

Respondents

RECONSIDERATION DECISION

Adjudicator: Ken Bhattacharjee

Date: April 28, 2016

Citation: 2016 HRTO 561

Indexed as: Perumal v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Suresh Perumal, Applicant

Self-represented

Introduction

1The purpose of this Reconsideration Decision is to address the applicant’s Request for Reconsideration of the Tribunal’s Decision, 2015 HRTO 1499, which dismissed the Application.

BACKGROUND

2On September 13, 2011, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against him with respect to services because of his race, colour, ancestry, place of origin, and ethnic origin.

3On February 13, 2012, the respondents filed a Response, which denied the allegation of discrimination.

4On January 27 and 28, 2015, the hearing of the merits of the Application took place. On November 6, 2015, the Tribunal issued a Decision, which dismissed the Application.

5On November 30, 2015, the applicant filed a Notice of Motion, which requested that the Tribunal reconsider its Decision. The request was not filed using the proper forms. On December 17, 2015, he filed a proper Request for Reconsideration of the Decision. His materials included a DVD-R with several videos.

ANALYSIS

6Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal rules.

7Rule 26.5 of the Tribunal’s Rules of Procedure states that 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.

8The Tribunal has also issued a Practice Direction on Reconsideration to provide guidance to the community on the nature of the reconsideration process. The Practice Direction states:

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.

9In his Request for Reconsideration, the applicant indicated that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5 a), c) and d). First, he argued that the Decision was released beyond the six-month period permitted by law, and he therefore did not receive a fair trial. Second, he argued that the Decision raises a reasonable apprehension of bias because the Tribunal completely ignored his evidence on critical issues. Third, he argued that the Tribunal was one-sided in assessing the credibility of the parties’ witnesses. Fourth, he argued that the Decision is unreasonable. Fifth, he argued that he filed a video with the Tribunal on the Monday after the hearing (February 2, 2015), but the Decision states that the video was never submitted.

10For the following reasons, the applicant’s Request for Reconsideration of the Tribunal’s Decision is denied.

11I do not agree with the applicant’s first argument that the Decision should be reconsidered because he was denied a fair hearing. In his submissions in support of this argument, he stated that he has several disabilities, and the nine-month wait for the Decision had a serious, negative effect on his life. This argument appears to be linked to Rule 26.5 c) and d). While I appreciate that he found it stressful waiting for the Decision to be released, particularly if the wait time exacerbated the symptoms of his disabilities, the hearing took place beforehand. In these circumstances, I cannot see how the wait time and stress resulted in an unfair hearing. Accordingly, this argument does not meet the criteria for reconsideration set out in Rule 26.5 c) and d).

12I also do not agree with the applicant’s second, third, and fourth arguments for reconsidering the Decision. These arguments appear to be linked to Rule 26.5 c) and d). These arguments are mixture of repeating the same arguments that he made at the hearing; making new arguments that he could have made, but did not make at the hearing; alleging that the Tribunal ignored his evidence and case law; and taking issue with the Tribunal’s assessment of the credibility of the witnesses. In reaching its Decision, the Tribunal considered all the evidence, submissions and case law that the applicant presented at the hearing. 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 the case.

13The applicant also argued that the Tribunal’s Decision raises a reasonable apprehension of bias. There is a strong presumption of judicial or quasi-judicial impartiality. To overcome the presumption, the party alleging a reasonable apprehension of bias must establish the presence of serious grounds. See Wewaykum Indian Band v. Canada, [2003] 2 SCR 259, 2003 SCC 45 at paras. 59 and 76. The test for reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 SCR 369, 1976 CanLII 2 (SCC) at pp. 394-95:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

The grounds for this apprehension must, however, be substantial, and I . . . refus[e] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.

14In my view, the applicant has not raised any concerns that could properly support a claim of reasonable apprehension of bias. What the applicant characterizes as a reasonable apprehension of bias are instead disagreements with the findings in the Tribunal’s Decision.

15Accordingly, these arguments do not meet the criteria for reconsideration set out in Rule 26.5 c) and d).

16I also do not agree with the applicant’s argument that the Decision should be reconsidered because he filed a video with the Tribunal on the Monday after the hearing (February 2, 2015). In his submissions in support of this argument, he stated that he is astounded that the Tribunal found that he did not produce the video, and then made a negative assessment about his credibility on that basis. This argument appears to be linked to Rule 26.5 a).

17There is no record that the applicant filed the video with the Tribunal on the Monday after the hearing (February 2, 2015). Documents or things filed by parties can occasionally be lost or misplaced at the Tribunal, but it is rare for the Tribunal to have no record of receipt because there is a process whereby intake staff scans the filed document or thing into the electronic case file before it is transferred to the case processing staff to be placed in the physical case file. In the case at hand, there is no electronic record of receipt and the video is not in the physical case file. Parties are also required to deliver a copy of the document or thing to all other parties to the Application (see Rule 1.20 of the Tribunal’s Rules), and the respondents have informed the Tribunal that they also have no record of having received the video from the applicant on or about February 2, 2015. Furthermore, on February 6, 2015, in response to having received a written transcript of the applicant’s 911 call, which the parties agreed at the hearing would be entered into evidence, the applicant’s counsel filed further written submissions by email about how the case should be decided, but made no mention of the applicant having filed the video earlier in the week. In the circumstances, I do not believe that the applicant filed the video with the Tribunal on the Monday after the hearing.

18However, even if I am wrong about this, I do not accept that the video is new evidence, which could not reasonably have been obtained earlier. The applicant and his fiancée, Jennifer Duczmal, testified about the video and its contents during the hearing, but the applicant had not disclosed the video during the disclosure process before the hearing. The video is clearly arguably relevant to the issues in the case, and should have been disclosed to the respondents during the disclosure process (see Rule 16.1 of the Tribunal’s Rules). During the hearing, when the applicant was asked to produce the video, he stated that he would bring it to the next hearing day, but on the following hearing day, his counsel stated that the video could not be produced because the applicant gave a copy of it to the Crown and the Office of the Independent Police Review Director, and did not keep a copy for himself. The applicant was able to obtain a copy of the video (according to him, two to three business days after the hearing), but he did not explain how he obtained it. In the circumstances, I am not satisfied it could not reasonably have been obtained earlier.

19I also do not accept that the video, which is entitled “Surrounded” and was included with the applicant’s Request for Reconsideration, could potentially be determinative of the case. In its Decision, the Tribunal drew several adverse inferences from the applicant’s failure to produce the video that he made of the dog owners. I have reviewed the video and it confirms the adverse inferences drawn about the number of dog owners in the vicinity of his townhouse (it shows 11 dog owners¹) and the behaviour of the dog owners and their dogs (it shows them walking calmly past his townhouse and there is no aggressive behaviour). The video does not confirm the adverse inference drawn about the racial composition of the group of dog owners captured in the video (they all appear to be White), but I cannot see how this would have resulted in the Tribunal rejecting the testimony of the individual respondent, Sergeant Simon Fraser, whom the Tribunal found to be a credible witness, that some of the dog owners whom he saw in the courtyard of the townhouse complex were Southeast Asian and South Asian. Furthermore, even if the Tribunal accepts that the video proves that all the dog owners in the vicinity of the applicant’s townhouse were White as opposed to many or most of them, which is what the Tribunal found in the Decision, I cannot see how this could potentially be determinative of the case.

20Accordingly, this argument does not meet the criteria for reconsideration set out in Rule 26.5 a).

ORDER

21The Request for Reconsideration is dismissed.

Footnotes

1. 1The video shows two dog owners, then a group of nine dog owners that includes the first two dog owners, and finally two other dog owners.