Toupin v. Ottawa Community Housing, 2011 HRTO 1133

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michelle Toupin

Applicant

-and-

Ottawa Community Housing

Respondent

RECONSIDERATION DECISION

Adjudicator: Jay Sengupta

Date: June 10, 2011

Citation: 2011 HRTO 1133

Indexed as: Toupin v. Ottawa Community Housing

WRITTEN SUBMISSIONS

Michelle Toupin, Applicant ) On Her Own Behalf

Ottawa Community Housing, Respondent ) Laura Clark, Counsel

1Michelle Toupin filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) on May 8, 2009, in which she alleged discrimination in the area of housing on the basis of disability, sex, marital status and receipt of public assistance.

2The respondent organization, her current landlord, filed a Response and a Request for Order During Proceedings requesting that the Application be dismissed for delay. The applicant filed a Form 11 opposing the Request.

3On June 18, 2010, more than a year later, she filed a Request to Amend her Application and attached another Application form containing the amendments she wished to make to the original document. In this amended version, she alleged discrimination in housing on the basis of disability, marital status, receipt of public assistance and reprisal. She argued that although the original Application was prepared on her behalf by counsel whom she had retained and instructed and although the document bears her signature, she was unaware of the contents of that document and she sought to correct the inaccuracies contained in it.

4The respondent filed a Form 11 opposing the Request to amend and cited a number of reasons for its opposition, indicating that a party should expect to be held to documents that they sign and argued that it would suffer prejudice if the applicant was permitted to “rewrite her Application” more than a year after filing the original one. They characterized the request to amend as a request to replace one Application with another that was significantly different, in that new allegations were raised as well as new grounds identified.

5A hearing was held in Ottawa to hear submissions from the parties on the respondent’s Request for Dismissal on the basis of delay and the applicant’s Request to Amend.

6Following the hearing, a Decision was issued (2011 HRTO 356) dismissing the Application as outside the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination and the applicant had not shown that the delay was incurred in good faith within the meaning of the Tribunal’s case law. As the Application was not within the jurisdiction of the Tribunal, no decision was made on the Request to Amend the Application.

7The applicant sent an email to the Tribunal within 30 days of the date of the Decision requesting, among other things, reconsideration of the Decision. She indicated that she could not download the appropriate forms and asked that the email be accepted in lieu of the Form 20 as her Request for Reconsideration.

8A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondents. However, the respondent sent in a Response to the Request for Reconsideration within a week of receiving the applicant’s email correspondence.

Decision

9Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, 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; or

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; or

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.

10It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which 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.

11In her email, the applicant did not identify which of the grounds she specifically relied on in support of her Request. However, she argued that the Decision had failed to include any reference to the violations of the Code and the case law that she had cited and that it had failed to consider her disability and its impact on her during the material time. She suggests that as a self represented person with a disability she was at a disadvantage and these factors contributed to the delay in seeking to amend the original Application. She requests reconsideration of the Decision, an order that a lawyer from the Human Rights Legal Support Center be assigned to take on her case and a rehearing during which the merits of her Application will be dealt with.

12The respondent takes the position that none of the grounds for reconsidering a Decision of the Tribunal exist. It argues that no new evidence or facts have been submitted, the Decision is not in conflict with established case law or Tribunal procedure and there is no error of law.

13The respondent does point out that paragraph 16 of the Decision could more clearly reflect that in August 2007 the function transferred to the Ottawa Housing Registry was that of the assessment of “special priority” for internal transfers and that the chronological waiting lists and administration of local priority categories were already within the bailiwick of the Registry. However, it argues that this clarification would have no bearing on the Decision in this Application concerning the delay issue as the last of a series of incidents referenced by the applicant was on May 8, 2008, by which time the respondent had no involvement in the assessment of special priority for internal transfers.

14The arguments made in the present Reconsideration Request by the applicant are similar to those that were presented by the applicant in writing and at the hearing into this matter. There is nothing in the Request to suggest that the unfortunate assault of the applicant that took place on May 8, 2008 was the last in a series of discriminatory incidents involving the respondent landlord. There is also no information that would lead me to conclude that the delay was incurred in good faith. Although she did not specify under which ground she sought reconsideration in her email, I have considered her submissions in light of Rule 26.5(a) through (d) and the arguments made in her Request fail to address any of the factors outlined therein.

15As stated in a number of Tribunal decisions, a Request for Reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. The thrust of the submissions made in the Request merely reiterate arguments made earlier in the process. It is evident that the applicant disagrees with the Tribunal’s ruling. However, she has presented no basis to reconsider the decision.

16In the circumstances, the Request for Reconsideration is denied.