Citation: Alabi v. Madkour, 2018 ONSC 7006
DIVISIONAL COURT FILE NO.: 526/17 DATE: 20181123
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LOCOCO, TRIMBLE and MYERS JJ.
BETWEEN:
JOHN ALABI
Applicant
– and –
WALID MADKOUR and HEBA ISMAIL
Respondents
Counsel: Yuce Baykara, for the Applicant Grace Vaccarelli and Megan Evans Maxwell, for the Respondents Jason Tam, for Social Justice Tribunals of Ontario
HEARD at Toronto: November 22, 2018
Reasons for Judgment
TRIMBLE, J.
[1] Mr. Alabi seeks Judicial Review in the form of an order quashing or setting aside two decisions of the Human Rights Tribunal of Ontario:
a. The April 19, 2017 decision found that he discriminated against Mr. Madkour and Ms. Ismail (his tenants) and harassed them because of their religious beliefs, and imposed a penalty of $6,000 payable to each of Mr. Madkour and Ms. Ismail.
b. The August 8, 2017 decision, in which the Tribunal denied Mr. Alabi’s request to reconsider its April 19, 2017 decision.
Facts
[2] Mr. Madkour and Ms. Ismail are practicing Muslims. Their expression of their faith manifests in many ways. It requires them to pray several times a day. Those times vary according to season. They must pray in a clean area. To that end, they do not wear outside shoes in their apartment, especially in the room in which they pray, to keep that room as clean as possible. Ms. Ismail is required to dress very modestly, and believes that a woman should not be seen with her body or hair uncovered in the presence of a man who is not her husband or blood relavive.
[3] Mr. Madkour and Ms. Ismail were also Mr. Alabi’s tenants. The landlord-tenant relationship did not go smoothly. Mr. Madkour and Ms. Ismail entered into the tenancy in December 1, 2014, but by January 20, 2015, the parties agreed that the tenancy would end and Mr. Madkour and Ms. Ismail would vacate the unit by February 28.
[4] Mr. Alabi said he would give the tenants 24 hours’ notice before bringing prospective tenants to see the apartment, and would define the blocks of time required for the viewings. The tenants asked for another notice one hour before the actual inspection. They made this request so that they could arrange their prayers to be complete by the time of the inspection, the apartment could be made presentable, and so Ms. Ismail could be appropriately dressed. They also asked that those entering the apartment remove their shoes when in the apartment or, at minimum, when in the bedroom, where the couple prayed.
[5] The tenants say that Mr. Alabi did not remove his shoes when he was in the apartment and the bedroom. There were difficulties surrounding the notice Mr. Alabi gave, and with Mr. Alabi’s conduct before and during some inspections. There were several tense text exchanges over notice of the inspections and how they were conducted. Those texts contained some of the statements which formed the basis of the tenants’ complaints. All of this is described in detail in the Tribunal’s decision.
The Adjournment Request
[6] The hearing was scheduled for June 27, 2016. One week before the hearing, Mr. Alabi requested an adjournment, advising that his 25 year old son had died four months earlier. While he previously thought he could still deal with the hearing, he advised that he came to realize that he was still affected by his son’s death such that he could not conduct the hearing.
[7] The Tribunal rejected Mr. Alabi’s adjournment request in reasons dated June 21, 2016. The Tribunal referred to its practice direction, which indicated that it would not grant an adjournment within a ten day period before a hearing’s scheduled start date, except in exceptional circumstances. The Tribunal did not consider that waiting three months and three weeks to make an adjournment request one week before the hearing date was “exceptional circumstances.” The Tribunal also stated that the delay would prejudice not only the tenants, but others seeking to use the Tribunal. The hearing proceeded on June 27, 2016, continued in person on March 8, 2017, with final submissions by conference call on March 13. Mr. Alabi had representation throughout.
The Decision
[8] In reasons dated April 19, 2017, the Tribual found that the tenants’ beliefs were sincere and that Mr. Alabi’s refusal to accommodate the tenants’ requests concerning notice of inspections and removing shoes was discrimination. The Tribunal found that Mr. Alabi offered no acceptable justification for refusing to accommodate. The accommodation posed no hardship for Mr. Alabi. Further, the Tribunal held that Mr. Alabi had harassed the tenants, all contrary to the Ontario Human Rights Code, R.S.O. 1990, H. 19.
[9] Most of the Tribunal’s findings were based on its credibility assessment of the parties. The Tribunal did not find Mr. Alabi credible, preferring other evidence where it contradicted his. It found that Mr. Alabi’s evidence was internally inconsistent and inconsistent with other evidence.
[10] The Tribunal imposed a penalty of $6,000.00 for each of Mr. Madkour and Ms. Ismail.
[11] Mr. Alabi applied for reconsideration of the decision on May 25, 2017, which was denied on August 8. He filed his Notice of Application for Judicial Review on September 7.
Jurisdiction
[12] The Divisional Court has jurisdiction to hear this matter under sections 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1
Standard of Review
[13] The standard of review on judicial review of tribunal decisions is reasonableness.
[14] Section 45.8 of the Code says that a decision of the Tribunal is final and not subject to appeal. It also provides that the standard of review of “patently unreasonable.”
[15] Since the Tribunal is a specialized tribunal with unique expertise within its jurisdiction, this Court owes the highest degree of deference with respect to its determinations of fact, and of interpretation and application of human rights law (see Shaw v. Phipps, 2012 ONCA 155, at para. 10).
[16] “Reasonableness” means that the decision and penalty must fall within the range of possible outcomes based on the law and the facts (see: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47). The reasons must show a path between the evidence and the outcome (see Peel Law Association v. Pieters, 2013 ONCA 396, at para 13; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 48-56; and Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421, at para. 39 to 41).
Decision and Analysis
[17] The Application for Judicial Review is dismissed for the following reasons:
a. Decisions about adjournments are within Tribunal’s responsibility to maintain its day to day functions. They are also discretionary decisions. Therefore, they attract strong deference provided they are exercised in accordance with principles of fairness and natural justice (see Dhimji Khimji v. Dhanani, 2004 12037 (Ont. C.A.), para. 48 to 49; and Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para.s 22 to 27, and 53). In this case, we see no error, and find that there was no denial of natural justice.
b. The Tribunal’s decision on discrimination and harassment, is reasonable, and the reasons show a clear path of reasoning. The Tribunal applied the appropriate law, and met the reasonableness review standard in so doing.
c. The Tribunal’s ultimate decision and penalty are based largely on findings of credibility which attract deference (see Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, at para. 38). The Tribunal reviewed the evidence, heard the witnesses, and was in a better position to assess credibility than this Court.
d. With respect to admitting Mr. Alabi’s Facebook post-events posting into evidence, we see no error. In the context of the hearing before the Tribunal, Facebook postings were admissible, if relevant. Mr. Alabi did not dispute that it was his posting. The Tribunal admitted the posting, but limited its relevance to evidence of Mr. Alabi’s views on religion-based accommodation requests by Muslims, and not as proof that he was biased, or as an indication of his intention to discriminate against Muslims. The Tribunal’s conclusions about discrimination were made on all of the evidence before it, including the Facebook posting. There is ample evidence on which the Tribunal could have come to the same conclusion, absent the Facebook posting.
[18] What Mr. Alabi really wishes is that this Court to re-weigh the evidence before the Tribunal, and come to a different conclusion. This is not the role of a reviewing Court.
[19] Accordingly, the application is dismissed. The Applicant shall pay the Respondents’ costs, fixed on consent, at $5,000 including disbursements and taxes.”
___________________________ TRIMBLE J.
I agree
LOCOCO J.
I agree
MYERS J.
Date of Release: November 23 2018
CITATION: Alabi v. Madkour, 2018 ONSC 7006
DIVISIONAL COURT FILE NO.: 526/17 DATE: 20181123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LOCOCO, TRIMBLE and MYERS JJ.
BETWEEN:
JOHN ALABI
Applicant
– and –
WALID MADKOUR and HEBA ISMAIL
Respondents
REASONS FOR JUDGMENT
TRIMBLE J.
Date of Release: November 23, 2018