Madkour v. Alabi, 2017 HRTO 1017

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Walid Madkour

Applicant

-and-

John Alabi

Respondent

A N D B E T W E E N:

Heba Ismail

Applicant

-and-

John Alabi

Respondent

reconsideration decision

Adjudicator: Jo-Anne Pickel

Date: August 8, 2017

Citation: 2017 HRTO 1017

Indexed as: Madkour v. Alabi

WRITTEN SUBMISSIONS

John Alabi, Respondent

Yuce Baykara, Counsel

1The respondent seeks reconsideration of Decision 2017 HRTO 436, in which I granted the Application and found that the respondent had breached the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

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

The Decision being challenged

3In the Application, the applicants alleged that the respondent discriminated against them because of creed contrary to the Code. In particular, they alleged that the respondent, who is their former landlord, failed to accommodate their religious practices when showing their apartment to prospective tenants. They also alleged that the respondent harassed them and created a poisoned housing environment. The respondent denied any discrimination.

4After a two-and-a-half day hearing held on June 27, 2016, and March 8 and 13, 2017, I granted the Application and found that the respondent had breached the Code. I found that the respondent failed to accommodate the applicants’ religious practices relating to prayer times by failing to provide advance notice shortly before showing the apartment. I found that he also failed to accommodate their religious practices by refusing to remove his shoes when entering their apartment and especially their prayer space. In addition, I found that he harassed the applicants, at least in part, because of their religiously-based accommodation requests contrary to the Code.

Applicable Principles relating to reconsideration

5A request for reconsideration is not an opportunity to re-argue a case or to change the way a party presented its case. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, and the Tribunal’s Practice Direction on Reconsideration. Once the Tribunal has made a decision in a case, parties are entitled to treat the matter as closed, 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.

analysis

7The respondent sought reconsideration under Rules 26.5 (a), (c) and (d) above.

Alleged new evidence

8The respondent sought reconsideration on the basis of an email he found from his wife that was to be submitted into evidence at the hearing. The respondent stated that the email was never filed during the hearing as his wife was going to be present to provide oral testimony. The respondent stated that, due to a family tragedy and the situation between the parties, his wife wished to have no part in the Tribunal proceeding.

9I do not find that the email filed by the applicant provides a reason to reconsider my Decision. Parties have the responsibility to present all relevant evidence at a hearing. The respondent had filed a witness statement for his wife in this case. However, at the hearing, he confirmed that his wife would not in fact be testifying.

10Moreover, I note that the email filed by the respondent with his Request for Reconsideration simply reproduces text from the respondent’s Response with an added section critiquing the applicants for filing their Application. I had before me the respondent’s Response when preparing my decision.

11Rule 26.5(a) speaks to “new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier” [emphasis added]. The email from the respondent’s wife is not new evidence that could not reasonably been obtained earlier. If the respondent wished to call his wife to testify, he should have done so, as he had originally planned to do. His failure to do so is not a valid ground for reconsideration. As stated in the Tribunal’s Practice Direction on Reconsideration, reconsideration is not an opportunity for a party to change the way it presented its case.

Alleged conflict with Tribunal practice

Adjournment request

12The respondent submitted that my denial of his request to adjourn the June 27, 2016 hearing date in Interim Decision, 2016 HRTO 840, conflicts with Tribunal practice and that it is a reason to grant reconsideration.

13The Tribunal has consistently held that only “final” decisions are subject to reconsideration. A decision will only be considered a final decision where the decision has the effect of finally determining the substance of the dispute or a central element of the dispute between the parties. See Ontario Human Rights Commission v. Ontario Teachers’ Federation (1994), 1994 CanLII 10578 (ON CTGD), 19 O.R. (3d) 371. An Interim Decision denying an adjournment request is not final decision that is subject to reconsideration. In any event, my denial of the respondent’s adjournment request was consistent with the Tribunal’s longstanding practice of granting adjournments only in exceptional circumstances. For the reasons set out in the Interim Decision, I was not persuaded that the respondent had established exceptional circumstances that would warrant an adjournment of the first hearing day.

14I note that the respondent seems to allege that my denial of his adjournment request denied him procedural fairness and impeded his ability to put his best case forward. According to the respondent, he “had to defend the action in his fragile state of mind, without his witnesses to give oral testimony.” In fact, the respondent did not testify on the first hearing day (the hearing day he sought to adjourn). The respondent did not call his case until the second hearing day, which was approximately nine months later. The respondent did not request the adjournment of the second hearing day due to any allegedly fragile state of mind.

15For these reasons, I do not agree that my denial of the respondent’s adjournment request was in conflict with Tribunal jurisprudence or that it breached procedural fairness.

Witness credibility

16The respondent also took issue with my findings of credibility in this case. Among other things, he claimed that he was prejudiced in giving his testimony because he was grieving at the time and I had denied his adjournment request. He also stated that I did not take into consideration the fact that English is not his first language.

17A party’s disagreement with a Vice-chair’s findings of credibility is not a ground for reconsideration. Moreover, as stated above, the respondent did not testify until the second hearing day in March 2017, approximately nine months after his request to adjourn the first hearing day. He did not request to adjourn the second hearing day. As well, the respondent was very clear in his testimony. The issue with his testimony was not his inability to speak English; it was the fact that his testimony was neither internally consistent nor consistent with his pleadings or the other documentary evidence in the case.

Alleged misinterpretation of applicable law

18As noted above, a request for reconsideration is not an opportunity to reargue one’s case. In his reconsideration request, the respondent takes issue with my application of the relevant law and also my findings of fact. His arguments in this regard are attempts to reargue his case. He has failed to show that my decision is inconsistent with established jurisprudence relating to the notion of a prima facie case or any other part of the discrimination analysis regularly applied by this Tribunal and the courts.

Alleged misapplication of case law on remedy

19The respondent also takes issue with my application of the case law on remedy. I do not agree with him that I misapplied the Tribunal’s case law on remedy or that my remedial award is inconsistent with established jurisprudence on this issue. The monetary compensation I awarded in this case was $6,000 per applicant. For all the reasons set out in my Decision, this amount is consistent with the Tribunal’s decisions in analogous cases.

Other factors that outweigh the public interest in the finality of decisions

Facebook post

20The respondent submitted that I erred in admitting into evidence a post from his Facebook page without justifying its relevance to the issues before me. Contrary to this assertion, I specifically addressed the relevance of the Facebook post in my Decision -- that is, it was relevant to discerning the respondent’s views on religiously-based accommodation requests by Muslims. To the extent that the respondent is taking issue with my assessment of the relevance of evidence, that also is not a valid ground for reconsideration.

21The respondent also sought to rely on s. 13(2) of the Code to argue that my admission of the Facebook post violated his freedom of expression. In making this submission, the respondent also seems to confuse my admission of the Facebook post with the protections against incitement of discrimination contained in s. 13 of the Code. There was never any allegation in this case that the respondent breached s. 13 of the Code and I made no such finding. Therefore, the reference to freedom of expression or opinion contained in s. 13(2) does not come into play in this case. In addition, I do not agree that by admitting the Facebook post into evidence I was violating the respondent’s freedom of expression.

ORDER

22For the reasons set out above, the respondent’s Request for Reconsideration is denied.