Human Rights Tribunal of Ontario

B E T W E E N:

Nitin Datta Applicant

-and-

City of Ottawa, Lisa Anderson, Jane Doe #1, Jane Doe #2,, John Doe # 1 and John Doe # 2 Respondents

AND BETWEEN:

Navin Datta Applicant

-and-

City of Ottawa, Lisa Anderson, Jane Doe #1, Jane Doe #2, John Doe # 1 and John Doe # 2 Respondents

AND BETWEEN:

Nand Datta Applicant

-and-

City of Ottawa, Lisa Anderson, Jane Doe #1, Jane Doe #2, John Doe # 1 and John Doe # 2 Respondents

AND BETWEEN:

Mo Haider Applicant

-and-

City of Ottawa, Lisa Anderson, Jane Doe #1, Jane Doe #2, John Doe # 1 and John Doe # 2 Respondents

AND BETWEEN:

Seema Haider Applicant

-and-

City of Ottawa, Lisa Anderson, Jane Doe #1, Jane Doe #2, John Doe # 1 and John Doe # 2 Respondents

AND BETWEEN:

Rafeez Khan Applicant

-and-

City of Ottawa, Lisa Anderson, Jane Doe #1, Jane Doe #2, John Doe # 1 and John Doe # 2 Respondents

AND BETWEEN:

Rodabha Khan Applicant

-and-

City of Ottawa, Lisa Anderson, Jane Doe #1, Jane Doe #2, John Doe # 1 and John Doe # 2 Respondents

RECONSIDERATION DECISION

Adjudicator: Josée Bouchard

Date: November 23, 2017

Citation: 2017 HRTO 1556

Indexed as: Datta v. Ottawa (City)

WRITTEN SUBMISSIONS

Nitin Datta, Navin Datta, Nand Data, Mo Haider, Seema Haider, Rafeez Khan and Rodabha Khan, Applicants

Cheryl Letourneau, Counsel

City of Ottawa and Lisa Anderson, Respondents

Madeleine Hayes, Counsel

Introduction

1The applicants filed a Request for Reconsideration of the Tribunal’s Decision, 2016 HRTO 729, pursuant to section 45.7 of the Ontario Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents were asked to file a Response to the Request for Reconsideration, which they did.

BACKGROUND

2In the Decision under reconsideration, the Tribunal dismissed the applicants’ Applications on the basis that the two timely allegations relied upon by the applicants, the removal of a fence on July 29, 2013 and a ticket issued in September 2013, had no reasonable prospect of success. The Tribunal dismissed the other allegations for delay. More specifically, the Tribunal found as follows:

• The applicants indicated that the applicable social area with respect to their relationship with the respondents Jane and John Doe was with respect to goods, services and facilities. The Tribunal found that there was no such relationship between the applicants and Jane and John Doe.
• With respect to the Jane and John Doe respondents, the allegations raised by the Haider and Datta applicants were based on speculation and conjecture alone. While the applicants had no information with respect to who the complaints were from, they also presented no evidence that may be available to them to link any of the complaints to a prohibited ground of discrimination. Consequently, the Applications had no reasonable prospect of success. There was no evidence that could be reasonably available to the applicants that could show a link between the events and alleged prohibited grounds of discrimination. The Applications were dismissed against Jane and John Doe.
• The two timely allegations relied upon by the applicants, the removal of a fence and a ticket issued in September 2013, had no reasonable prospect of success. The Tribunal found that it was Hydro One that directed the City to remove the fence because of safety hazards. There was no adverse treatment of the applicants by the City. The Tribunal also found that the applicant, Mo Haider, could point to no evidence that would tend to establish that a factor in the decision to issue a ticket was a ground under the Code.
• The remaining allegations related to previous investigations by the City were held to be untimely. The applicants offered no reasonable explanation for the delay in filing their Applications regarding these allegations.

THE REQUEST FOR RECONSIDERATION

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

a. There is new evidence that could be potentially determinative of the case and was not available earlier. More specifically, the applicants indicate that they have identified the complainants Jane and John Doe, they have provided new evidence concerning their actions in relation to other neighbours and they filed statements demonstrating that Jane and John Doe only complained about non-white, non-Christian, East Asian neighbours.

b. There is new evidence to demonstrate that only non-white, non-Christian, East Asian residents are visited by the City in their neighbourhood.

c. There is new evidence in the form of a CBC News article that the public perception of the treatment of the Haider and Datta families by the City resulted in beliefs that they had been racially discriminated against.

d. There is new evidence to show that the City alone removed the fence on their property.

e. The Decision is in conflict with established jurisprudence and this reconsideration involves matters of general or public importance.

f. The Vice-chair made an oral ruling during the Summary Hearing that there was no issue with respect to delay and no issue with the timeliness of the seven Applications. The City agreed as did all represented parties that the Applications were filed in a timely manner and that this was not an issue in dispute. In the Decision, the Vice-chair “over-ruled” herself without allowing any representations on the evidence of timeliness. The Decision found that a number of allegations were untimely.

g. There are other factors that outweigh the public interest and suggest that the matters should proceed to an investigation and prosecution by the Human Rights Commission.

4In their response to the Request the respondents, the City and Ms. Anderson, note that there are no new facts or evidence that could potentially be determinative of the case and that could reasonably have been obtained earlier. They also argue that the Decision is not in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration does not involve a matter of general or public importance.

5The City admits that during the May 5, 2015 summary hearing, the Vice-chair made an oral ruling that there was no issue with respect to timeliness for the seven Applications. However, in the Decision, the Vice-chair stated that there were issues regarding timeliness of specific allegations within the Applications. The City submits that the Vice-chair did not “over-rule” herself. While she may have ruled that the Applications were timely, this does not necessarily imply that all of the allegations within the Applications were timely.

THE LAW

6Under section 45.7 of the Code, 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.

7The 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, effective as of January 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.

8The 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.

9As 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

10For the reasons that follow, the Request is granted on the specific issue of the timeliness of the allegations that are unrelated and precede the removal of the fence incident of July 29, 2013 and the alleged ticket issued in September 2013.

11As indicated above, the applicants rely on Rule 26.5(a)(c) and (d).

New Facts or Evidence

12I find that the applicants have not identified new facts or evidence that could potentially be determinative of the case and could not reasonably have been obtained earlier.

13The applicants filed transcripts of a meeting of June 2013 and a CBC News article dated July 29, 2013, stating that this is new evidence that could not reasonably have been obtained earlier. The applicants did not indicate why these documents, that precede the date of the hearing on May 5, 2015, were not readily available to them. In fact, I note that some of the applicants referred to the CBC News article in their Applications. I conclude that these are not new documents that could not be obtained earlier.

14The applicants also filed statements made by neighbours in 2016 about past complaints or visits from the City to their houses to show that the City was targeting specific communities in their investigations. I find that these statements are not determinative of the case, as they are pure speculation, and that statements by neighbours could have been obtained prior to the preliminary hearing.

15The applicants also indicate that they now know the identity of Jane and John Doe and that this is determinative. I find that the identity of Jane and John Doe is not determinative of the case. The Vice-chair found that the social area of services did not apply to Jane and John Doe and that the allegations against them were based solely on speculation. The identity of Jane and John Doe does not alter the Vice-chair’s findings.

16I find that the applicants have not pointed to new facts or evidence that could potentially be determinative and that could not reasonably have been obtained earlier. The Request for reconsideration pursuant to Rule 26.5(a) is denied.

Conflict with Tribunal Procedure

17The Request is granted on the specific issue of the timeliness of the allegations that are unrelated and precede the removal of the fence incident of July 29, 2013 and the ticket issued in September 2013. The applicants, the City and Ms. Anderson agreed that the Vice-chair made an oral ruling at the preliminary hearing that there were no issue with respect to timeliness of the Applications. In the February 6, 2015 Case Assessment Direction indicating that the Tribunal would hold a preliminary hearing, the issue of untimeliness of some or all of the allegations was raised. However, there is no indication that the Vice-chair heard submissions from the parties about the untimeliness of the allegations that preceded the removal of the fence and ticket incidents.

18The Decision concludes as follows (paras. 50 and 51):

In this case I have found that the two timely allegations relied upon by the applicants which are the removal of the fence and the ticket issued in September 2013, as the last date of alleged discrimination have no reasonable prospect of success. Therefore, there are no timely allegations that fall within one year of the filing of the Application the applicants refer to other incidents of discrimination that had previously occurred it was only the issues with respect to the fence that were timely. As such the entire Application must be dismissed as untimely.

The applicants offered no reasonable explanation for the delay in filing their Applications. It appears that the applicants retained counsel to assist them and sent correspondence to the City in an attempt to resolve this matter. The applicants’ materials include a great number of communications from the applicants to various public officials. As such, I find that there is no good faith in the delay in filing these Applications.

19There is no indication that the Vice-chair heard submissions on this matter or allowed the applicants to specifically explain the reason for filing the Applications late. I find that this created unfairness to the applicants.

20The public interest in the finality of Tribunal decisions is outweighed in this case by the unfairness to the applicants. As the Tribunal explained in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the legitimacy of the Tribunal is related to its ability and willingness to undo an unfair result or process, or correct a wrong. In this case, reconsideration will correct an unfair result, where the applicants’ Applications have in part been dismissed on the basis of facts they did not have the opportunity to argue.

21I find that the Decision on this discrete point is in conflict with the Tribunal’s procedure and the proposed reconsideration involves a matter of general or public importance.

22I also note that the Decision states (at paras. 39 and 40):

I cannot accept the submissions made by the applicants that the City is perpetuating the discriminatory motives of the complainants by investigating complaints lodged against the Datta and Haider families. This is because the allegations that the complainants are racist is speculative and conjecture on the part of the applicants.

Further, in my view the fact that the City investigates a complaint made by a citizen does not in and of itself constitute adverse impact for the purposes of establishing discrimination pursuant to the Code.

23Although the Tribunal goes on to discuss whether there is no reasonable prospect that the applicants will succeed with the allegations of discrimination in relation to the removal of the fence and the ticket issued in September 2013, the parties will also be asked to make submissions about whether the comments made by the Tribunal at paragraphs 39 and 40 of the Decision are applicable to the allegations that precede the removal of the fence on July 29, 2013 and the issuance of the ticket in September 2013. In other words, has the Tribunal concluded that (or even if it did not, should this reasoning equally be applied to whether) there is no reasonable prospect that these allegations will succeed?

Other Basis for Request for Reconsideration

24I find that the applicants have not met the burden of establishing any of the threshold criteria justifying reconsideration for the following requests:

a. that there is evidence that the City removed the fence and adversely impacted the applicants;

b. that the basis for concluding that Jane and John Doe were not in a service relationship with the applicants is flawed;

c. that the evidence was sufficient to allow the Tribunal to draw a reasonable inference that the motivation for Jane and John Doe was race, colour, religion or creed;

d. That the discriminatory intentions of Jane and John Doe can be inferred from the frequency and nature of their same complaints and the specific target of their complaints versus other neighbours in the same neighbourhood.

25In support of their Request, the applicants essentially make arguments that are addressed in the Decision. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

26It is important to note that the issues raised at para. 24, above, were the subject of submissions before the Tribunal, and dealt with in the Decision. In Sigrist, above, 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 related to the issues raised at para. 24 above amount to additional arguments on issues already fully canvassed before the Tribunal.

Order

27For the reasons set out above, the Tribunal has reconsidered its earlier Decision to dismiss this Application on the specific issue of timeliness of the allegations that are unrelated and precede the removal of the fence on July 29, 2013 and the ticket issued in September 2013. The parties will also be asked to make submissions on whether the Tribunal has concluded in its Decision, more specifically at paragraphs 39 and 40, that those allegations have no reasonable prospect of success (or if it has not, whether that reasoning should be applied to the allegations subject to reconsideration).

28The Tribunal will schedule a half-day, teleconference hearing at the earliest possible date to hear evidence and arguments on the following:

a. the issue of timeliness of the allegations that are unrelated and precede the removal of the fence incident of July 29, 2013 and the ticket issued in September 2013 of this Application;

b. whether the Decision at paras. 39 and 40 applies to the allegations at issue and lead to a conclusion that the allegations have no reasonable prospect of success.

Dated at Toronto, this 23rd day of November, 2017.

“Signed by”

Josée Bouchard

Vice-chair