Kalair v. Central 1 Credit Union, 2016 HRTO 964

Human Rights Tribunal of Ontario

B E T W E E N:

Omar Kalair

Applicant

-and-

Central 1 Credit Union

Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: July 21, 2016

Citation: 2016 HRTO 964

Indexed as: Kalair v. Central 1 Credit Union

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2015 HRTO 1400, dated October 21, 2015, which dismissed the Application.

2On November 20, 2015, 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 (the “Rules”) 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 his 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(a), (c) and (d).

10The applicant first states that he has come across recent information that the receivership of UM Financial Inc. (“UM”) has ended. Consequently, he asserts that UM is now back in operation and he is the sole director. As a result, he asserts that the Decision is in error in stating that UM is in receivership and that he had no status to raise allegations of discrimination in the Application on UM’s behalf. There are several problems with this assertion. First, the Application was filed by Omar Kalair as an individual and not by UM. As I note in the Decision, as UM was in receivership, Mr. Kalair would have had no ability to commence a legal proceeding on UM’s behalf. In order to do so, Mr. Kalair would have had to make a Request for Order seeking to amend the Application to add UM as an additional applicant. He did not do so. Second, the allegations of discrimination against UM were already the subject of a civil action. Even if Mr. Kalair had sought to add UM as an applicant to this proceeding, such a request would have been barred by s. 34(11) of the Code, which bars an application from being filed with this Tribunal where the same allegations of discrimination have been raised in a civil action. Third, as stated in the Decision, Mr. Kalair, through his counsel at the preliminary hearing, confirmed that the two issues identified in the Decision were the only issues the applicant was proceeding with in this matter. Fourth, even if Mr. Kalair’s assertion that UM is no longer in receivership could be regarded as a new fact or evidence that could potentially be determinative of the case, which is far from certain, Rule 26.5(a) requires the applicant to establish that this information could not reasonably have been obtained earlier. There is nothing in the applicant’s Reconsideration Request to support such a conclusion.

11Second, the applicant states that he was only given the Tribunal’s Case Assessment Direction, which indicated that the Tribunal would consider certain issues in addition to the delay issue, three weeks before the preliminary hearing. He states that he was travelling out of the country at the time, and did not have time to look at the entire file or properly prepare for the preliminary hearing. If the applicant, who was represented by legal counsel at the preliminary hearing, felt that he had not had sufficient time to properly prepare, then an adjournment request could have been made. However, the applicant or his counsel did not make that request.

12The applicant next states that he was prevented from seeking disclosure from the respondent. This is not correct. If the applicant required disclosure for the purpose of the preliminary hearing, then he or his counsel could have filed a Request for Order seeking such production. He did not do so.

13The applicant asserts that, if he had been allowed to request disclosure from the respondent, he would have been able to establish that he was the guarantor of his ex-spouse’s mortgage. As stated in the Decision, the mortgage agreement was before me for the preliminary hearing, and while the applicant is a signatory, there is no reference to him as a guarantor. If the applicant in fact was a guarantor, it seems to me that there should be some documentation in his possession to establish this, but none was presented to me. In any event, once again, if the applicant required disclosure from the respondent, he could have made such a request to the Tribunal, but did not do so.

14The applicant next states that the Decision is in error by indicating that the matrimonial home was sold on August 31, 2012, when in fact the sale did not occur until November 2012. The material before me indicates that the sale occurred on August 31, 2012. If the applicant had different information, then he had every opportunity to raise this before me, but did not do so. In any event, the precise date of the sale makes no material difference to the conclusion reached in the Decision.

15The applicant states that he disagrees with the statement made in para. 32 of the Decision that he only made one demand to the respondent to compensate him. No such statement is made in para. 32. Rather, the point made in that paragraph is that the applicant, on his own admission, became aware of the alleged discrepancy in January 2013, but did not file his Application until some 15 months later, beyond the one-year period. Further, the fact that the applicant subsequently made a demand for compensation in April 2013 does not constitute any further or additional act of alleged discrimination by the respondent.

16In para. 44 of the Decision, I address the applicant’s submission at the preliminary hearing that he relied upon legal advice that he had one year from April 12, 2013 to file his Application. In his Reconsideration Request, the applicant states that he did not submit evidence of any such legal advice at the preliminary hearing, based upon advice from his counsel that this was privileged. While that is true, it is the client’s privilege and the client can waive privilege if he so chooses. Based on legal advice, the applicant chose not to do so. That was his decision. Further, no documentation supporting that he received any such legal advice was submitted in support of the Reconsideration Request.

17The applicant takes issue with my conclusion at para. 58 of the Decision that the mortgage document allegation does not fall within this Tribunal’s jurisdiction. He refers to written submissions filed by his counsel for the preliminary hearing which state that in 2012, the applicant was offered inflated terms of renewal on mortgages and other terms different from non-Muslim clients. There are a number of problems with this allegation. First, the applicant was not offered any mortgage renewal in 2012, as he was not the owner of the matrimonial home. Second, even if he was, such an allegation is out of time as the Application was not filed until April 2014, some two years later. As stated repeatedly in the Decision, the applicant does not have the standing to bring an Application on behalf of others, unless he has their consent to do so and files the appropriate forms confirming consent, which he did not do. My point in para. 58 is that in relation to the mortgage document allegation, the applicant personally did not have any employment, service or contractual relationship with the respondent, and therefore there is no provision of the Code which provides a basis upon which he can allege a violation of his own personal rights under the Code.

18Finally, the applicant states in his Reconsideration Request that he filed this request within the 30-day time limit to preserve his rights, but was communicating with legal clinics, including the Human Rights Legal Support Centre, for help in perfecting his request and may submit additional information later. It now has been eight months since the Reconsideration Request was filed, and no such further information has been filed.

19Accordingly, have considered the submissions made by the applicant in his Reconsideration Request, I find that he has failed to satisfy me: that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; that the Decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or that other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

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