HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert MacDonald
Applicant
-and-
Cornwall Public Library
Respondents
RECONSIDERATION decision
Adjudicator: John Manwaring
Indexed as: MacDonald v. Cornwall Public Library
WRITTEN SUBMISSIONS BY
Robert MacDonald, Applicant ) Martin Buser, Representative
BACKGROUND
1Mr Robert MacDonald (the “applicant”) filed a timely Request for Reconsideration of my decision dated July 12, 2011 (2011 HRTO 1323) (the “Decision”), as permitted by s. 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In the Decision, I dismissed the applicant’s Application, which alleged the respondent discriminated against him in the provision of services on the basis of disability.
2Section 45.7 of the Code reads:
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.
45.7(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.
3As the Tribunal states in its Practice Direction on Reconsideration:
Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO 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.
4Because this is a transitional application it is governed by the Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Human Rights Code which state in Rule 25.5 that:
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.
THE REQUEST FOR RECONSIDERATION
5The applicant’s argument in support of his Request for Reconsideration is based on Rule 25.5(c). He argued that the Decision conflicts with established jurisprudence, specifically with the Supreme Court of Canada’s decision in the case of University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353.
DECISION
6I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.
7As noted above, the applicant seeks in his Request for Reconsideration to rely upon Rule 25.5(c). In the Decision, I held that the applicant had a duty to cooperate with the respondent on the basis of the case Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, and that this duty to cooperate includes an obligation to advise the respondent of the need for accommodation so that the respondent can, with the assistance of the applicant, determine the best means of accommodation possible in the circumstances in light of the applicant’s needs. The applicant argues in his Request for Reconsideration that the Code does not impose any obligation to ask for accommodation or to disclose the disability. He further argues that the Renaud duty to cooperate applies in the employment context but not in the context of service delivery. The applicant bases this argument on the Berg case which, according to the applicant, was decided in Ms. Berg’s favour even though she did not request accommodation.
8The applicant’s argument is unpersuasive. The Berg case does not deal with the issue of accommodation, which was the issue in the Application. It deals with: (i) the threshold issue of whether the services offered to graduate students by the respondent university were services customarily available to the public within the definition of the British Columbia Human Rights Act, S.B.C. 1984, c. 22, s. 3 in force at the time; and (ii) whether the respondent university directly discriminated against Ms. Berg on the basis of disability when it denied her a key to the faculty building to allow access when the building was closed and refused to provide her with a “rating sheet” (the equivalent of a reference) because of her mental illness. In the Berg case, the respondent university was aware at the time of the denial of services that the applicant had a mental disability so there was no need for Ms. Berg to disclose her disability or to ask for accommodation. There is nothing in Berg to suggest that the Renaud duty to cooperate does not apply in the context of services when a duty to accommodate exists.
9The main thrust of the applicant’s reconsideration submissions is that it is discriminatory to require that persons with disabilities disclose their disability to the service provider. People with disabilities should be treated exactly the same as people without disabilities. However, the statutory duty to accommodate persons with disability means that persons with disability are necessarily treated differently to the extent necessary to ensure that they can benefit equally from the services offered by the provider. People without disabilities do not have the right to accommodation. Treating people differently is sometimes necessary to achieve equality.
10The Supreme Court of Canada has articulated a duty in Renaud, which is not onerous. The person seeking accommodation must do what is reasonable in the circumstances. This applies to the duty to disclose, which only requires that the person with a disability disclose sufficient information to trigger the duty to accommodate and enable the service provider to identify and implement the appropriate accommodation. There is no need to disclose this information publicly or to circulate it broadly. The Decision applied these principles, and the applicant’s submissions in his Reconsideration Request do not establish that the Decision conflicts with the established jurisprudence.
11The applicant filed supplementary materials with the Tribunal on September 27, 2011. While these were filed after the 30-day time period for the filing of a request for reconsideration, they were read and considered. In these supplementary materials, the applicant did not provide any evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier (Rule 25.5(a)). These materials contained no new legal argument that was not made either at the hearing or in the written submissions filed at the time of the Request for Reconsideration (Rule 25.5(c)). To the extent that the applicant is alleging bias on the part of the Tribunal in these supplementary submissions, either as part of factors (a) or (d) of Rule 25.5, he submits no evidence in support of this allegation and provides no grounds on which a well-informed person possessed of the full facts would have a reasonable apprehension of bias.
12In conclusion, the onus is on the party requesting reconsideration to convince the Tribunal that there are “compelling and extraordinary circumstances”, which justify reconsideration of this decision in the face of the policy in favour of finality. The applicant has not met that onus. He has not shown that the Decision conflicts with existing jurisprudence of the Tribunal or the Courts or that reconsideration involves a “matter of general or public importance”. Nor has he established any other grounds for reconsideration under the Rules. It is understandable that the applicant disagrees with the Decision dismissing his Application but the fact that he disagrees with it is not a sufficient reason to grant the Request for Reconsideration.
13For all of these reasons, the Request for Reconsideration is denied.
Dated at Toronto, this 13th day of October, 2011.
“Signed by”
John Manwaring
Member