Tarek Ibrahim v. Hilton Toronto Hotel, 2017 HRTO 1539

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tarek Ibrahim

Applicant

-and-

Hilton Toronto Hotel

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir Date: November 22, 2017 Citation: 2017 HRTO 1539 Indexed as: Ibrahim v. Hilton Toronto Hotel

WRITTEN SUBMISSIONS

Tarek Ibrahim, Applicant Self-represented

Introduction

1On August 22, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 1096, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2The Tribunal’s Decision found that there was no breach of the settlement as alleged by the applicant.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration (the “Request”) provides the following reasons why the Tribunal should reconsider its Decision:

a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;

b. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance

c. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

4The respondent was not called upon to respond to the Request.

THE LAW

5Under section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

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.

6The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008, last amended April 2014). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

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 includes the following statements:

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.

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.

ANALYSIS AND CONCLUSIONS

9I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

10As indicated above, the applicant relies on Rule 26.5 (a), (c) and (d). However the applicant’s submissions are essentially an attempt to re-argue the case. The applicant also argues that the Tribunal was biased in the manner in which the hearing was conducted and in its Decision.

11The applicant alleges that the Tribunal made the following errors in its Decision:

a. Failing to accommodate his request when he reported several times that he could not hear the respondent;

b. Did not follow the Case Assessment Direction;

c. Ignoring important evidence which was reported in Form 18 and during the submission;

d. Exceeding his authority when he varied minutes of the settlement at this late stage, without request from either party; and

e. Showed favoritism to the respondent.

12It is important to note that the issues raised in this Request were largely the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 (“Sigrist”), the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties 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. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

13Turning to the specific arguments of the applicant. The applicant states that I ignored the fact that he complained several times that he could not hear the respondent. This is not accurate. The applicant raised the issue once and counsel for the respondent raised his voice. The applicant’s concern was not repeated and it appeared to have been resolved.

14The applicant also alleges that I did not follow the Case Assessment Direction. Although this is not completely clear, as an example of this alleged error, the applicant alleges that I repeatedly stated that the case should not take a long time to hear and every time he tried to speak I repeated that the case should not take a long time. The applicant alleges that I did this every time he wanted to speak and never did it when the respondent was speaking. The applicant’s assertions in this regard are not accurate. The applicant was afforded every opportunity to make his submissions.

15The applicant also asserts that I would not allow him to make submissions about the addition of a personal respondent. The applicant’s assertion is not accurate. In any case this argument has no bearing on the result in the Decision. Whether or not the applicant could have successfully argued that two additional parties might be added to the Application would not have affected the result that there was no breach of the settlement.

16The applicant also argues that I ignored important evidence. As an example of this the applicant takes issue with my characterization as a new allegation his assertions that an employment letter was different than what was agreed to. The applicant asserts that the allegations made at the hearing had been included in the Form 18. This is not accurate. The Form 18 does state that the employment letter provided was not as agreed but the only particulars of this were that it did not include an agreed job duty, that a date on the letter was incorrect and that it was not signed by the person who was supposed to sign it. At the hearing for the very first time the applicant also asserted that two positive comments about the applicant had been removed. As with another request to amend the Application this new effort to amend the Application was denied.

17The applicant also argued that I ignored the impact these alleged breaches have had on his health. This is not accurate. Given that no breaches of the MOS were found there was no need to address these issues as the question of remedy did not arise.

18The applicant also alleges that I varied the terms of the MOS when I indicated that I expected that the respondent would honour its undertaking made at the hearing to amend the employment letter to conform to what had been agreed. I do not understand how this amounts to a variation of the MOS.

19Finally the applicant alleges that I showed favouritism to the respondent but beyond disagreeing with his position on a number of issues and the issues identified above there is no substance of this allegation.

20In conclusion, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.