HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Matthew Wozenilek
Applicant
-and-
City of Guelph
Respondent
RECONSIDERATION DECISION
Adjudicator: David A. Wright
Date: December 7, 2010
Citation: 2010 HRTO 2430
Indexed as: Wozenilek v. Guelph (City)
[1] The applicant requests reconsideration of the Tribunal’s Decision of August 6, 2010, 2010 HRTO 1562, which dismissed his Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 (the Code).
[2] The applicant relies upon Rule 26.5, 1, 2 and 4 which read as follows:
A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:
there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
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
other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
[3] The applicant suggests that he was taken by surprise by the respondent’s reliance on s. 11 of the Code in final argument and that he would have presented the case differently had he known about this. He says this was a “last minute plea” by the respondent which was not referenced in its materials and only raised in final argument, resulting in unfairness to him. Section 11 reads as follows:
- (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
[4] It was clear to me throughout that the case was about whether the respondent had met its duty to accommodate the applicant to the point of undue hardship. The respondent accepted that the applicant was not able to use a high floor bus and that there were high floor buses on the applicant’s route during the relevant period. The issue was whether this was discriminatory in light of its duty to accommodate persons with disabilities to the point of undue hardship. The evidence and argument presented by the respondent were about the reasons why it said it could not and should not be required under the Code to provide low floor buses on every run during the period. The applicant challenged this evidence and argument. It was my impression that the applicant understood the issues during the hearing.
[5] However, the applicant states in his request for reconsideration that because of the absence of a specific mention of s. 11 in the Response or the witnesses’ evidence, he did not understand that they were relying upon that defence. He says he believed this was merely background or a statement of the facts.
[6] The applicant did not, however, object to the respondent’s reliance on s. 11 during the hearing. Rather, he made detailed submissions on the issue of undue hardship during his final argument. Indeed, he came to the hearing prepared with references to Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, which addresses undue hardship, including para. 225, which talks specifically about the threshold for undue hardship. If the applicant wished to argue that he was taken by surprise and seek an adjournment or leave to present more evidence, the time to do it was during the hearing, not after the Tribunal’s decision was released. For these reasons, reconsideration is not justified on this ground.
[7] The applicant also argues that the Tribunal was biased against him because it did not allow him to present evidence “about the clear disregard for the person with a disability, in all facets of the administrative and political branches of the City of Guelph”. The Tribunal is entitled and indeed obligated to limit submissions and evidence in order to ensure a fair hearing focused on the issues before it: Rule 1.7 and s. 43 (3) of the Code. It is the Tribunal’s role to focus the evidence and submissions on the key questions before it.
[8] In this case the central issue was whether the respondent had accommodated the applicant to the point of undue hardship during the time period when only one out of every two buses on the applicant’s route was a low floor bus. The fact that the Tribunal restricted the evidence to this question does not constitute bias, but rather was the Tribunal exercising its powers to focus the hearing on the question before it.
[9] Finally, the applicant argues that the Tribunal erred in stating that the applicant had 40 minute service before the implementation of 20 minute service and therefore there was no change for him in light of the move to low floor buses every 20 minutes. He states that he had 30 minute service on many occasions and the move to low floor buses once every 40 minutes caused him a disadvantage in comparison to the previous system.
[10] The evidence before the Tribunal from Fred Gerrior was that in the period prior to July of 2008, there was 40 minute peak service and 30 minute off-peak service. From July 2008 to March 2009, there was 20 minute service, with every other bus as a low floor bus from 5:40 AM until 7:00 PM. Upon further review of Mr. Gerrior’s witness statement, which he adopted as his evidence in chief, it appears to the Tribunal that the hours between 9:00 AM and 3:00 PM are not considered peak hours. Accordingly, the applicant is correct that during the July 2008 to March 2009 period, his service was reduced from 30 minutes to 40 minutes from 9:00 to 3:00 PM. The applicant is therefore correct that the Tribunal made an error in suggesting, at paras. 32-33, that low floor service levels in all cases continued at their former levels.
[11] This does not change the Tribunal’s conclusion, however. As noted at para. 13 of the Decision, with the July 2008 change the respondent “decided to allocate service so that every route would have low floor service on at least every other trip, which improved the situation on those routes that previously had no low floor service at all”. On the evidence, there is no question that the respondent made full use of the low floor buses it had. The applicant states in his request for reconsideration that the respondent “clearly decided that it would provide better service to able bodied people at the cost of providing worse service to people similar to the applicant”. I disagree. The evidence suggests that the respondent made the decision to spread its limited number of low floor buses to more routes allowing more persons in the position of the applicant to access them, although this led to a 10 minute longer gap between buses on the applicant’s route during certain hours of the day.
[12] Considering the corrected information, I remain of the view that the applicant was accommodated to the point of undue hardship. In reaching this conclusion, I take into account the factors discussed at para. 32 of the Decision, with the exception of the second last bullet. I also take into account the fact that the ten-minute increase in the gap between low floor buses on the applicant’s route during non-peak daytime hours was part of an expansion of low floor service to routes that had not previously received it and that the respondent continued to fully use its limited fleet of low floor buses.
[13] In the circumstances, I find that none of the criteria in Rule 26.5 have been met. The Request for Reconsideration is dismissed.
Dated at Toronto, this 7^th^ day of December, 2010.
“Signed by”
David A. Wright
Interim Chair