Radden v. Sandbank Homes Inc., 2011 HRTO 1401

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Caspar Radden Applicant

-and-

Sandbank Homes Inc. and Frontier Management Respondents

A N D B E T W E E N:

Inge Radden Applicant

• and -

Sandbank Homes Inc. and Frontier Management Respondents

RECONSIDERATION Decision

Adjudicator: Mary Truemner

Date: July 26, 2011

Citation: 2011 HRTO 1401

Indexed as: Radden v. Sandbank Homes

1The applicants filed a Request for Reconsideration of the Tribunal’s Decision dated March 3, 2011 (the “Decision”) which dismissed these Applications filed on August 27, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Applications described the respondents’ construction of the applicants’ home and their contract for that home, and the respondents’ construction and commercial activities in and around the applicants’ home and neighbourhood, citing, for example, issues related to the respondents’ alleged unauthorized use of land, improper disposal of construction materials, and unnecessary and excessive traffic. The applicants alleged that the respondents discriminated and engaged in reprisals against them with respect to accommodation, services and contracts on the basis of age, disability and association with a person identified by a prohibited ground contrary to ss. 1, 2, 3 and 8 of the Code.

3In its introduction, the Request for Reconsideration states that the Applications were not “brought forward” to the Tribunal “regarding material damage” [emphasis added] caused by breach of contract, zoning violations and other allegations unrelated to discrimination or reprisal under the Code; instead, write the applicants, “our submission is re: the emotional, health-physical-stress + humanitarian + consequential suffering and damage etc… caused from Respondents, which as we believe can only be handled from HRTO [the Tribunal]…”

4Even in cases where applicants have evidence of emotional suffering or trauma, they have the responsibility to demonstrate to the Tribunal that they also have evidence to prove that the suffering was caused because of a violation of the Code. In the case of the applicants, the Tribunal found, after a summary hearing, that there was no reasonable prospect that the applicants could prove, on a balance of probabilities, a connection between the events described in the Applications and the alleged grounds of discrimination or reprisal based on evidence the applicants have or evidence that is reasonably available to them.

BACKGROUND

Rule 25.5

5Rule 25.5 of the Tribunal’s Rules of Procedure sets out the limited circumstances in which reconsideration may be granted:

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; 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

6The applicants submit that there are new facts or evidence as per (a) above; that the Decision is in conflict with established case law or Tribunal procedure as per (b) above; and that other factors exist that outweigh the public interest as per (d) above. The respondents have not filed submissions.

New Evidence

7In their Request for Reconsideration, the applicants reiterate their position that there is no doubt in their minds that elder abuse is behind the respondents’ continuing noisy and disruptive conduct as they continue to construct houses around the applicants’ home. The applicants express concern that the Tribunal did not consider “new evidence” filed on February 22, 2011 because the Decision did not refer to it. Despite the applicants’ characterization of that submission as “new evidence”, it was a part of the record before the Tribunal when the Decision was subsequently made, and, while not specifically referenced, the Decision states as follows:

The applicants’ written submissions are hundreds of pages long. They provide details of the respondents’ alleged unauthorized use of land, loud and dusty construction, improper disposal of construction materials, and unnecessary and excessive traffic. While the submissions repeatedly use and highlight, in various colours, vocabulary such as “discrimination”, “disadvantages”, “differently”, “unequal”, “reprisals” and “intentional”, they do not provide any link between the events described and a prohibited ground of discrimination or reprisal.

8The contents of the February 22, 2011 submission from the applicants do not contain “new evidence”, and nothing in that submission provides any link between the events described and a prohibited ground of discrimination or reprisal. It would appear that the applicants merely believe, without evidence, that the respondents are treating them badly for discriminatory reasons under the Code. All the applicants’ submissions for the Summary Hearing were reviewed and considered by the Tribunal, including the February 22, 2011 submission, but they contained no evidence that the respondents intended to reprise against the applicants for asserting their rights under the Code, nor did they point to evidence that the nuisances of construction were created by the respondents because of the applicants’ age or disability, or because of their association with someone protected by the Code. The submissions were summarized in the Decision as per the paragraph above, and there was no need to review each point made by the applicants in their repetitive and lengthy submissions given the absence of references to evidence which might prove their allegations.

9The Reconsideration Request also refers to “new evidence” in the form of a Mission Statement of the Wellington on the Lake Residents’ Association. The Mission Statement refers to an intention to create a safe, secure and tranquil community but there is nothing in it which refers to discrimination or reprisal contrary to the Code. It does not, therefore, justify a reconsideration of the Decision.

10The applicants also describe the respondents’ activities subsequent to the date of the Decision which they feel constitutes new evidence: 1) activities on March 24, 2011 involving a vehicle of one of the respondents cutting off the vehicle of one of the applicants, and involving the lack of the immediate clean up of gravel; and 2) activities on April 1, 2011 which are basically the respondents’ continued commercial use of a model home despite the applicants’ position that such use is illegal and disturbing. The applicants also include a letter from their MPP and an estimate for repairs to their house, but neither of these documents or descriptions of recent activities contain any references to new evidence of discrimination or reprisal contrary to the Code.

Conflict With Established Jurisprudence Or Tribunal Procedure

11The Reconsideration Request states, “We believe that HRTO’s decisions are in conflict with established case laws or/and Tribunal procedures… and the proposed reconsideration involves a matter of general or/and public importance.” For the Tribunal to exercise discretion to reconsider, Rule 25.5 requires that the Decision be in conflict with established jurisprudence or Tribunal procedure AND that the reconsideration involve a matter of general or public importance. The Request describes the importance of protecting the “Elderly” which may be a matter of general or public importance. However, other than a reference to the applicant’s understanding that the Tribunal delivered the Decision to the applicant and to only one of the respondents, which is irrelevant in the consideration of whether the Decision ought to be reconsidered, the applicants do not refer to any particular procedure of the Tribunal or to any case law, nor do they explain why the Decision is in conflict with established case law or Tribunal procedure.

Finality Of Tribunal Decisions

12The applicants make submissions about protecting elders, generally, and home-buyers, specifically, but they do not explain what factors exist that might lead to a conclusion that protecting elders from alleged unfairness in construction and housing ownership developments outweigh the public interest in the finality of Tribunal decisions.

CONCLUSION

13Reconsideration is a discretionary remedy and is granted only in limited circumstances: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, at paras. 10-19. A request for reconsideration is not an opportunity to reframe or reargue a case; yet, I find that this is what the applicants are trying to do by arguing that the Tribunal misunderstood their submissions considered for the Summary Hearing. In their submissions for this Reconsideration Request, the applicants make references to those previously filed submissions, appendices and attachments, pointing to the fact that they had repeatedly made clear that the respondents were reprising against them and discriminating against them, and that they were emotionally harmed. However, as stated in the Decision, the applicants do not point to evidence with which they would prove that the respondents’ allegedly bad treatment of them occurred because the applicants are older and disabled, because they have associated with someone protected by the Code or because they have tried to enforce their rights under the Code.

14The applicants have failed to satisfy the criteria pursuant to Rule 25.5.

15For all these reasons, the Request for Reconsideration is denied.