Qiu v. 2076831 Ontario Ltd., 2017 HRTO 1653

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nan Qiu

Applicant

-and-

2076831 Ontario Ltd. o/a Redline Auto Sales

and Sergey Barandich

Respondents

RECONSIDERATION DECISION

Adjudicator: Keith Brennenstuhl

Date: December 14, 2017

Citation: 2017 HRTO 1653

Indexed as: Qiu v. 2076831 Ontario Ltd.

WRITTEN SUBMISSIONS

2076831 Ontario Ltd. o/a Redline Auto Sales and Sergey Barandich, Respondents

Olga Kuchmar, Paralegal

Introduction

1On October 31, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 1432, allowing the Application.

2The respondents seek reconsideration of the Decision allowing the Application.

THE LAW

3Under 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.

4The 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.

5The Tribunal’s Practice Direction on Reconsideration includes the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

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 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

7In the Request the respondents indicated that the reason for the Request was the factors identified in Rule 26.5 (c) and (d). The respondents also raise apprehension of bias.

26.5(c) – Conflict with established law

8This criterion for reconsideration requires that there both be a conflict with established Tribunal jurisprudence or procedure and that the proposed reconsideration involves a matter of general or public importance. In their submissions, the respondents do not identify any conflict with the Tribunal’s case law or established procedure. Rather, in their submissions they assert that the “[t]he decision is in conflict with the proper analysis pursuant to the Canadian Human Rights Act. The “Canadian Human Rights Act” is not Tribunal jurisprudence and of course the governing legislation is the Ontario Human Rights Code, not the “Canadian Human Rights Act”.

9As well, the respondents allege that, in essence, the Tribunal misinterpreted or misunderstood key facts and came to conclusions that were wrong. I understand that the respondents do not agree with the Decision, but the purpose of the reconsideration process is not for parties to reargue their case, which is what the respondents are attempting.

10The respondents provided submissions concerning the applicable standard of review. The reconsideration process is not an appeal in the usual sense of the word or a review. The requirements of Rule 26.3 are not met by positing a standard of review.

11As to the issue of the proposed reconsideration involving a matter of general importance, the respondents have failed to address how the proposed reconsideration involves a matter of general or public importance.

26.5(d) – Public interest in the finality of decisions

12Although the respondents indicate that this is a reason for the Request, they do not identify any factors that outweigh the public interest in the finality of the Decision. Consequently, I must find that the respondents have not met the burden of establishing this threshold criteria justifying reconsideration.

Apprehension of bias

13The respondents’ allegations of a reasonable apprehension of bias is as follows:

At the Hearing of the matter the Adjudicator had engaged in communications with the Applicant’s Counsel of the Human Rights Legal Support Centre and discussed with Ms. Brenda Culbert what necessary steps be taken by the Applicant following a similar case law that would help the Applicant to present her case. While the Adjudicator was talking to the Counsel for the Applicant in the court room, the Personal Respondent felt that his opinion and his representative’s opinion about what is going on was set aside. The Respondent’s representative was not familiar with a case law the Counsel and Adjudicator talked about, and no clarification was made with respect to changing direct examination procedure for the Applicant.

The paralegal for the Respondents made a few comments being concerned that the Applicant was treated by the Adjudicator as a more important party than the Respondents. At this point, it was requested to allow the Personal Respondent to be heard according to the rules of the human Rights Tribunal.

14These allegations are so vague and lacking in specifics that it is difficult to comprehend what, if anything, transpired.

15In any event, the test for reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1987] 1 S.C.R. 369, at p. 394:

[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, the 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 [decision-maker], whether consciously or unconsciously, would not decide fairly.

16There 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: Wewaykum Indian Band v. Canada, 2003 SCC 45 (“Wewaykum”).

17Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial: Wewaykum at para. 58. In my view the allegations as made by the respondents are unclear and lack particularity and cannot be said to “establish the presence of serious grounds”. Given the lack of details by the respondents on this submission, and given the strong presumption of judicial or quasi-judicial impartiality, I do not believe that a reasonable person informed of these circumstances would believe that there was a reasonable apprehension of bias.

18Given this finding, there is no basis for the applicant’s Request for reconsideration of my decision on the basis of a reasonable apprehension of bias.

order

19The Request for reconsideration is denied.