Julie Wasylnka v. Neda Bilich, 2009 HRTO 675

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julie Wasylnka Applicant

-and-

Neda Bilich Respondent

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott Date: May 25, 2009 Citation: 2009 HRTO 675 Indexed as: Wasylnka v. Bilich

WRITTEN SUBMISSIONS BY: Neda Bilich, Respondent Robert Bilich, Representative

INTRODUCTION

1On March 9, 2009 the Tribunal issued a Decision, 2009 HRTO 265, finding the applicant, Julie Wasylnka, was discriminated against in her tenancy by the respondent landlord Neda Bilich.

2On April 7, 2009, the respondent filed a Request for Reconsideration of the Decision, as provided for in section 45.7 of the Ontario Human Rights Code (the "Code"). The Request was based on the following grounds: (a) there are new facts or evidence that could not reasonably have been obtained earlier; and (b) the proposed reconsideration involves matters that are of general or public importance.

DECISION

3The Request for Reconsideration is dismissed.

RELEVANT LEGISLATIVE PROVISIONS

4Sections 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal's decisions:

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.

45.8 Subject to section 45.6 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

5Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance on the Tribunal's exercise of its reconsideration powers (Practice Direction #4 Reconsideration).

6Relevant to this Reconsideration Decision are the following Rules:

25.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.

25.3. A request for reconsideration must include:

(a) reasons for the request, including the basis on which the Tribunal is asked to grant the request for reconsideration;

(b) submissions in support of the request; and

(c) the remedy or relief sought.

25.5. 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;

(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;

(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 and orders.

7Practice Direction #4 states, in part:

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 Tribunal. 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 repair deficiencies in the presentation of its case.

ANALYSIS

New Evidence

(a) Prior Tenancy Problem

8The respondent advises that after the hearing, she discovered new evidence which establishes that the applicant intentionally mislead the Tribunal during the hearing of this Application. Specifically, the respondent alleges that she found evidence that contradicts the applicant's testimony before the Tribunal that she had no prior history of tenancy problems.

9The new evidence relied upon by the respondent concerns a decision of the British Columbia Residential Tenancy Branch in the case of Olsen v. Wasylnka, file no. 175955. The respondent advises that a decision in this matter was made by a resolution officer on December 14, 2005, but provides no information as to the nature of the proceeding, the full names of the parties involved, or the decision reached. The respondent did not provide a copy of this decision with her Request for Reconsideration.

10During the CRC hearing, Ms. Wasylnka testified that she had no problems as a tenant in the past and that she used to be a landlord herself. She testified that she understands what it is like to find good tenants and the process involved in removing bad tenants.

11The information provided by the respondent does not establish that the applicant's evidence before the Tribunal was untruthful. I have no way of knowing whether the "Wasylnka" named in the British Columbia proceeding is the same person as the applicant before me. Assuming that it is the same person, I have no way of knowing whether the applicant was the landlord or the tenant in the proceeding. It is highly unlikely that Ms. Wasylnka would have been involved in a tenancy dispute, as a tenant, in British Columbia in 2005 when she was a tenant of the respondent in Toronto at that time.

12I find that the respondent has not provided any new information that relates to the applicant in this proceeding. In light of this finding, it is unnecessary for me to determine whether the new information is determinative of the case before me as required under Rule 25.5.

(b) Support Person at Hearing

13The respondent advises that after the hearing, she discovered that, Anna Martin, one of the applicant's support people attending on the second day of the hearing, is a lawyer in private practice.

14The respondent objected to Ms. Martin's presence at the hearing and was overruled in her objection. The respondent cannot use the Reconsideration process to reargue procedural rulings. In any event, the applicant was entitled to bring the support person(s) of her choice to the hearing, whether legally trained or not. At no time, did Ms. Martin participate in the hearing as the applicant's legal counsel. She did not examine or cross examine witnesses nor did she make submissions on the applicant's behalf. The fact that Ms. Martin is a lawyer has no impact on the decision reached in this case.

Matter of General Importance – Breaches of Procedural Fairness

(a) Decision to Proceed to Case Resolution Conference

15The respondent did not wish to proceed to mediation in this matter and as such, an Interim Decision with case management directions for the Case Resolution Conference (CRC) was issued in accordance with Rule 5.14. See 2008 HRTO 114. The directions required the applicant to deliver her statement of additional facts and description of remedies sought, and to disclose all arguably relevant documents. The directions required the respondent to deliver her statement of additional facts, her position on the requested remedies and all arguably relevant documents. The respondent argues that she was not given an opportunity to make submissions on this process and as such, it was procedurally unfair.

16The respondent should have raised this concern at the hearing. Indeed, she raised a different concern about the Interim Decision that was addressed at the commencement of the hearing. Reconsideration is not an opportunity for the respondent to raise issues that she knew about at the time of the hearing. In any event, there was no breach of procedural fairness by the Tribunal prior to the CRC. The directions did not determine any procedural or substantive rights of the respondent. They simply required pre-hearing disclosure to enable the respondent to know the case she had to meet. The process followed by the Tribunal was consistent with Rule 9 of the Tribunal's Rules of Procedure. The respondent had notice of this process through the Rules which are published on the Tribunal's website.

(b) Bias

17The respondent raises many complaints regarding the conduct of the CRC hearing including the order a particular witness was called, an alleged adjournment request and various evidentiary rulings. None of these objections fit within the requirements of a Reconsideration Request. The respondent is attempting to re-argue procedural rulings that were made at the time of the CRC hearing or is now taking a different position on the procedural issue than was taken during the CRC hearing. Reconsideration is not an opportunity to re-argue rulings that were made during the course of the hearing, nor is it an opportunity to change positions after the fact.

Request to set aside the Decision

18The respondent seeks to set aside the Tribunal's Decision on numerous bases including the Tribunal's alleged failure to consider relevant evidence, its acceptance of hearsay evidence, its failure to accept the respondent's claim of discrimination during the hearing of the applicant's case, and disagreement with the remedy ordered. The respondent is using the Reconsideration process as a judicial review or appeal of the Tribunal's Decision. As stated in the Tribunal Practice Direction #4: "Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case".

19In conclusion, the respondent has not presented any new facts or evidence and has not established that the proposed Reconsideration involves a matter of general or public importance. The Request for Reconsideration is an attempt by the respondent to re-argue procedural rulings and to disagree with the Tribunal's Decision on the merits. These bases do not fit within the requirements of Rule 25.5. Accordingly, the respondent's Request for Reconsideration is dismissed.