Arnold v. Dunedin House Bed & Breakfast, 2010 HRTO 971

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Thomas Arnold

Applicant

-and-

Gillian Adams o/a Dunedin House Bed & Breakfast and Eric Adams

Respondents

AND B E T W E E N:

Peter Grav

Applicant

-and-

Gillian Adams o/a Dunedin House Bed & Breakfast and Eric Adams

Respondents

RECONSIDERATION Decision

Adjudicator: Caroline Rowan

Date: May 5, 2010

Citation: 2010 HRTO 971

Indexed as: Arnold v. Dunedin House Bed & Breakfast

1The respondent, Gillian Adams o/a Dunedin House Bed & Breakfast requests reconsideration as provided for in section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), of the Tribunal’s Decision, 2010 HRTO 323, dated February 11, 2010 upholding the applicants’ complaints against her.

2In the Decision, the Tribunal found that the applicants’ sexual orientation and/or marital status were factors in the respondent’s decision not to provide services to the applicants.

3The basis of the request for reconsideration is that the Decision is in conflict with established case law or Tribunal Procedure and the proposed reconsideration involves a matter of general or public importance and that other factors exist that outweigh the public interest in the finality of Tribunal decisions. More specifically, the respondent argues that the Tribunal erred in its Decision in the following two respects:

1. by failing to consider and apply the doctrine of illegality to the contract between the parties;

2. in failing to apply the proper legal test to determine whether discrimination occurred.

4Section 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal 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 powers to make rules, the Tribunal has issued rules governing requests for reconsideration as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction #4 Reconsideration).

6The Tribunal’s Rules include the following provisions relevant to the present request for reconsideration:

25.1 Any party may request reconsideration of a final decision of the Tribunal within thirty (30) days from 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.

8In the present case, the respondent argues that the Tribunal erred by failing to consider and apply the doctrine of illegality to the contract between the parties. However, at no point during the course of the Case Resolution Conference (the “hearing”) in this matter did the respondent’s counsel refer to the doctrine of illegality. Instead, as noted in the Decision, the significance attached by counsel at that time to the fact that the room was unlicensed was simply that the room in question was not “available to the public” and that the Code requires that the goods, services or facilities be “available to the public”. The argument that the doctrine of illegality should apply to the offer of an unlicensed room and the retraction of that offer is therefore being raised for the first time only after the argument advanced at the hearing was rejected by the Tribunal in the Decision. Reconsideration is not an opportunity for a party to add additional arguments upon learning that one’s original position was unsuccessful.

9Counsel for the respondent further acknowledges in her Request for Reconsideration that there is a dearth of Canadian jurisprudence on the issue of the application of the doctrine to defeat human rights claims in contractual relationships. She relies only on two decisions from the courts in England in support of her reconsideration request. In the circumstances, it is not possible to conclude that the Decision is in conflict with established case law or Tribunal Procedure.

10The Tribunal, in any event, has significant doubts about the applicability of the defence of illegality referred to in the two cases cited by the respondent for the first time in the request for reconsideration to the facts in this case (even assuming without deciding that they reflect the appropriate approach in Canada). There was firstly no issue in the present case of the Tribunal enforcing a contractual agreement between the parties, which was illegal or otherwise, or any direction made requiring compliance with an illegal agreement. Instead, in the Decision, the Tribunal found that the applicants were subject to discriminatory treatment in the provision of goods and services and made a declaration to that effect as well as a direction that the applicants be compensated for the loss of their right to be free of discrimination.

11In addition, as noted in the Decision, the Tribunal found, on the evidence before it, that the respondent did not raise the issue of the room being unlicensed until after she withdrew the offer of bed and breakfast accommodation. In these circumstances, the Tribunal is unlikely to have concluded that the claims of the applicants, who were both unaware that the room was unlicensed, “arise out of, or are so clearly connected or inextricably bound up or linked with, the illegal conduct of the applicants that the Tribunal should not permit the applicants to recover compensation without appearing to condone that conduct” as the English decisions suggest is the proper approach.

12The respondent’s alternate argument, that the Tribunal erred by failing to apply the proper legal test to determine whether discrimination occurred is, in substance, a reformulation of the respondent’s argument that no discrimination could be found given that the room in question was not one generally available to the public. As noted, that argument was rejected by the Tribunal in the Decision. The distinction Mrs. Adams made was between renting the room to a single man who would draw little attention from other guests and men involved in a same sex relationship, who she believed would draw their attention in a small room she considered suitable only for singles and opposite sex couples.

13Having carefully reviewed the respondent’s submissions, I find that none of the circumstances set out in Rule 25.5 are present. For these reasons, the Request for Reconsideration is dismissed.