Ibrahim v. The Owners, Strata Plan LMS 1222 and another (No. 2), 2024 BCHRT 269
Date Issued: September 19, 2024
File: CS-005861
Indexed as: Ibrahim v. The Owners, Strata Plan LMS 1222 and another (No. 2), 2024 BCHRT 269
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Ali Ibrahim
COMPLAINANT
AND:
The Owners, Strata Plan LMS 1222 and Bayside Property Services Ltd.
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO RECONSIDER A DECISION
RULE 36
Tribunal Member: Robin Dean
On his own behalf: Ali Ibrahim
Counsel for the Respondent: Samuel Kim
I INTRODUCTION
[1] Ali Ibrahim filed a complaint of physical and mental disability discrimination against his former strata corporation and the strata’s property management company. He said that the Strata discriminated against him when it did not allow him to (1) rent out his strata lot, which he says he could not personally occupy because of his disabilities, or (2) attend hearings with the strata council by telephone, which he said he could not attend in person because of his disabilities.
[2] In an earlier decision, I found the complaint was untimely, and I was not persuaded it was in the public interest to accept it. I dismissed the complaint under s. 27(1)(g) on that basis: Ibrahim v. The Owners, Strata Plan LMS 1222 and another , 2024 BCHRT 183. I did so even though the Respondents had been granted leave to file an application to dismiss under s. 27(1)(c), not s. 27(1)(g). I found that there was no procedural unfairness because Mr. Ibrahim had a full opportunity to respond to the Respondents’ s. 27(1)(g) arguments, and he did so in his response to the application to dismiss.
[3] Mr. Ibrahim now applies to have the Tribunal reconsider the dismissal decision.
[4] For the reasons that follow, I deny the application. I do not reconsider my decision.
II WHETHER TO RECONSIDER THE DECISION
[5] The Tribunal has a limited jurisdiction to reconsider its own decisions: Rule 36 of the Tribunal’s Rules of Practice and Procedure . Specifically, the Tribunal may reconsider a decision if it is in the interests of justice and fairness to do so: Routkovskaia v. British Columbia (Human Rights Tribunal) , 2012 BCCA 141 at para. 23. The Tribunal exercises this power sparingly, giving due consideration to the principle of finality in administrative proceedings: Grant v. City of Vancouver and others (No. 4),2007 BCHRT 206 [Grant] at para 10.
[6] The burden is on the person seeking to have a matter re-opened to show that the interests of fairness and justice demand such an order: Grant at para. 10.
[7] Mr. Ibrahim says that my decision to consider the arguments under s. 27(1)(g) was procedurally unfair. Mr. Ibrahim says he was “stuck between a rock and a hard place” and that he had no other choice but to address the s. 27(1)(g) arguments. He explains that he was “pressed up against” a tight submissions timeline and “facing the pressures of well exceeding the page limits.” He says that although he addressed the arguments, he did not have the “proper opportunity to provide all possible arguments and evidence” given these pressures. Mr. Ibrahim does not say what additional arguments he would have made had he known that I was going to consider s. 27(1)(g). However, he says that he should now be given the opportunity to provide expert evidence on the issue.
[8] The Tribunal may reconsider a decision where there has not been procedural fairness: Fraser Health Authority v. Workers’ Compensation Appeal Tribunal , 2014 BCCA 499 at para. 161. Mr. Ibrahim’s arguments on reconsideration do not change my initial assessment that the process was procedurally fair. Mr. Ibrahim had notice of the Respondents’ s. 27(1)(g) arguments and an opportunity to respond to them in his response to the application to dismiss. While he says he did not have enough pages to respond to all grounds for dismissal advanced by the Respondents, the Tribunal’s practice direction on page restrictions is clear that there is room to ask the Tribunal to exceed the page limit. This Mr. Ibrahim did not do.
[9] Further, the Tribunal may reconsider a decision where there is new evidence that was not available at the time the party made its submission: see Gichuru v. Vancouver Swing Society and others, 2018 BCHRT 18 at para. 22. Here, however, there is no indication that Mr. Ibrahim could not have filed the additional evidence he files in support of the reconsideration application with the initial response to the application to dismiss. The Tribunal will not reconsider a decision to address arguments that could have been made in the first instance but were not: Ramadan v. Kwantlen Polytechnic University and another (No. 2) , 2018 BCHRT 56 at para. 13. The same goes for evidence that could have been presented but was not.
[10] Mr. Ibrahim says that I was wrong about the date of the last alleged act of discrimination. He says that “[t]he Respondents breached my human rights by continuing to collect on a CRT order that was stayed by … order of BC Supreme Court…” But this does not allege a breach of the Code. Recourse for this would be in the BC Supreme Court, not at the Human Rights Tribunal.
[11] Mr. Ibrahim also disagrees with my public interest determination and says:
I finally wish to submit that my complaint and a hearing on it is in the public interest for the people suffering from mental and physical disabilities as well as for the people that endure these disabilities while in detention. The human rights of these groups of people are systematically violated as they can be simply labelled or thought of as “criminals” and “disabled” by some groups, including the Respondents, who simply wanted to get rid of me and not have to deal with people like me by violating my human rights.
[12] I determined that it was not in the public interest to hear Mr. Ibrahim’s complaint because of the length of the delay, which at 14 months was considerable. Another factor that weighed heavily in my determination was the assessment that Mr. Ibrahim did not raise any issues that were sufficiently novel or unique. While I acknowledge the materials before me indicating that Mr. Ibrahim suffers from mental and physical disabilities – an issue that was not disputed at the ATD stage – there was no evidence before me that during the relevant period Mr. Ibrahim was unable to file his complaint in time. And ultimately, I determined that the other factors weighed more heavily in favour of dismissing the complaint.
[13] While Mr. Ibrahim thinks my decision on the public interest aspects of his complaint was wrong, the Tribunal does not have authority to reconsider a decision based on an argument that the decision was wrong or unreasonable: Fraser Health Authorityat paras. 135 and 160. When a party simply disagrees with a Tribunal decision, the appropriate recourse is judicial review by the BC Supreme Court.
[14] Finally, Mr. Ibrahim’s overarching complaint about the ATD decision is that I did not consider the s. 27(1)(c) arguments. But even if I had dealt with the s. 27(1)(c) arguments in my decision, I would have dismissed Mr. Ibrahim’s complaint on the basis that he failed to play his part in the accommodation process. In the accommodation process both Mr. Ibrahim and the Strata had obligations. Generally, it is the obligation of the person seeking accommodation to bring forward the relevant facts, including relevant medical information: Leary v. Strata Plan VR1001, 2016 BCHRT 139 at para. 68.
[15] The evidence before me on the dismissal application was that Mr. Ibrahim did not provide the Strata with the medical information necessary to accommodate his requests to rent out his suite and to appear at strata council meetings by telephone (except for on one occasion, where the Strata permitted a telephone appearance). Therefore, dismissal under s. 27(1)(c) would also have been appropriate because the Strata was reasonably likely to prove a defence.
III CONCLUSION
[16] Mr. Ibrahim’s reconsideration application is denied. The complaint file is closed.
Robin Dean
Tribunal Member