Zoher Mala v. Bradley Geddes, 2017 HRTO 921

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zoher Mala

Applicant

-and-

Bradley Geddes

Respondent

RECONSIDERATION DECISION

Adjudicator: Ken Bhattacharjee

Date: July 21, 2017

Citation: 2017 HRTO 921

Indexed as: Mala v. Geddes

WRITTEN SUBMISSIONS

Zoher Mala, Applicant

Self-represented

1The purpose of this Reconsideration Decision is to address the applicant’s Request for Reconsideration of the Tribunal’s Decision, 2017 HRTO 711, which dismissed the Application.

2On March 2, 2016, the applicant filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent had discriminated against him in employment and contract.

3On April 21, 2016, the respondent filed a Response, which denied the allegation of discrimination.

4On April 19, 2017, the Tribunal issued a Notice of Rescheduled Hearing to the parties by regular mail and email, which informed them that the hearing was scheduled for June 19 and 20, 2017, at the hearing centre in Toronto, starting at 9:30 a.m.

5On June 19, 2017, neither party attended the hearing or contacted the Tribunal to explain their absence.

6On June 22, 2017, the Tribunal issued a Decision, 2017 HRTO 711, which deemed the applicant to have abandoned the Application, and dismissed the Application.

7On July 4, 2017, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.

8Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal rules.

9Rule 26.5 of the Tribunal’s Rules of Procedure states that 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.

10The Tribunal has also issued a Practice Direction on Reconsideration to provide guidance to the community on the nature of the reconsideration process. The Practice Direction states: “Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO.”

11In his Request for Reconsideration, the applicant indicated that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5 d). In his submissions in support of his Request, he stated that he was unwell on the date of the hearing, and was unable to attend. He stated that he was also unable to attend work on that date. In support of this latter statement, he attached an email, which he sent to his employer on June 19, 2017 at 8:22 a.m., which stated:

Rajesh

Am not well today. Cannot make it to work. Am available on phone and e mail.

Will continue the documentation of financial close

Regards

Zoher

12In his Request for Reconsideration, the applicant also requested that the Tribunal grant him new hearing dates.

13I disagree that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5 d). I am not satisfied that the factors identified by the applicant outweigh the public interest in the finality of the Tribunal’s Decision. Specifically, the email which he attached to his submissions undermines rather than supports his Request for Reconsideration because it shows that he had no intention of attending the hearing. First, the email clearly shows that he was planning to attend work that day instead of attending the hearing. Second, approximately one hour before the hearing, he notified his employer by email that he was unwell and unable to attend work, but he did not also notify the Tribunal by email (or telephone) that he was unwell and unable to attend the hearing.

14The Tribunal has a duty to dispose of applications fairly, justly and expeditiously. See section 40 of the Code and Rule 1.1 of the Tribunal’s Rules. This duty is not only in relation to the parties, but also in relation to the public, whose tax dollars fund the Tribunal. In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated at paras. 4-7:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

15The applicant appears to believe that he can take a casual approach about whether or not he attends a scheduled hearing, and simply ask for it to be rescheduled if he fails to attend. He is wrong. The Tribunal expended significant resources scheduling the hearing, preparing a hearing room, and having a Vice-chair attend the hearing. Furthermore, because of his failure to attend the hearing without notifying the Tribunal, the two days reserved for his hearing were wasted, and could not be used by the hundreds of other parties who are waiting to have a hearing.

16In the circumstances, there is no basis to reconsider the Decision, and grant the applicant new hearing dates.

17The Request for Reconsideration is dismissed.