Taite v. Carleton Condominium Corporation No. 91, 2011 HRTO 2334

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Taite

Applicant

-and-

Carleton Condominium Corporation No. 91

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: December 30, 2011

Citation: 2011 HRTO 2334

Indexed As: Taite v. Carleton Condominium Corporation No. 91

WRITTEN SUBMISSIONS

John Taite, Applicant ) Self-Represented

Carleton Condominium ) T. Kirk Boyd, Counsel Corporation No. 91, Respondent )

1The purpose of this Interim Decision is to deal with the applicant’s request that I recuse myself and that I reconsider a number of procedural decisions made during a hearing conducted on November 25, 2011.

2For the reasons that follow, the applicant’s request is denied

OVERVIEW

3This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in housing on the basis of disability.

4The applicant states he has a disability that limits his neck movement, causes him pain, and affects his mobility, particularly in cold weather. He owns a vehicle that does not fit into the underground parking lot at the condominium where he resides. He states that his vehicle is particularly well-suited to accommodate his disability because it allows for good visibility, accommodates additional mirrors that he has attached to enchance his visibility without requiring him to turn his neck, and because the vehicle is very safe and would provide enhanced protection in the event of a motor vehicle accident. The applicant states that the respondent has a duty to accommodate his disability by allowing him to park in an above-ground parking spot reasonably close to the entrance to the building.

5The respondent denies the allegations of discrimination. The respondent argues that the applicant’s choice of vehicle is more a matter of personal preference than it is a disability-related need. At the outset of the hearing, the respondent stated it did not accept that the applicant has a disability and held the applicant to the proof thereof.

HISTORY OF PROCEEDINGS

6The Tribunal conducted a hearing in this matter on November 25, 2011. The Tribunal heard opening statements from the parties and posed a number of questions to each party during their opening statements. Then the Tribunal held a discussion with the parties regarding the conduct of the hearing. During these discussions, the Tribunal proposed, and the parties accepted, that the Tribunal would conduct the initial questioning of all of the witnesses. Each of the parties would then have an opportunity to pose further questions.

7The parties indicated they wished to participate in a mediation-adjudication. However, since the applicant’s treating physician was available to testify at approximately 10:15 a.m. on November 25, 2011, the Tribunal heard the physician’s evidence before engaging the parties in mediation discussions.

8As agreed, the Tribunal questioned the physician. The applicant then posed some further questions of him and counsel for the respondent conducted a brief cross-examination. The applicant was given an opportunity to pose further questions in redirect.

9The parties signed a mediation-adjudication agreement, paragraph 4 of which states:

We understand that a Tribunal member will conduct the mediation. We agree that if the parties are unable to resolve the application through mediation, the Tribunal member who conducted the mediation will conduct the hearing and adjudicate the Application. Neither party may request that the Tribunal member recuse himself or herself based upon anything that occurred during the mediation.

10Much of the November 25, 2011 hearing date was taken up with settlement discussions. In the end, however, the parties were unable to resolve their differences and the hearing proceeded.

11The Tribunal heard evidence from Barry Spratt and from the applicant.

12The applicant sought (and the respondent agreed) to have Mr. Spratt give evidence in advance of the applicant’s own testimony. The Tribunal accepted this order of witnesses. Mr. Spratt, whom the applicant describes as his “co-agent”, sought to testify about what the applicant stated was similar fact evidence, in regards to the respondent’s alleged treatment of Mr. Spratt. I declined to hear evidence of this nature at this stage of the proceedings. As I explained to the parties at the hearing, it is not clear to me that Mr. Spratt’s evidence would assist me in my determination of the Application and, in any event, I cannot appropriately assess whether his evidence relates to similar facts until I have heard the applicant’s own evidence. I explained to the Applicant that my determination was without prejudice to his ability to seek to have Mr. Spratt testify on these issues at a later stage in the proceeding.

13Mr. Spratt gave evidence regarding his direct involvement in the matters that gave rise to the Application. As agreed, I questioned Mr. Spratt. The parties then had an opportunity to question him as well.

14Before adjourning for the day, the Tribunal began hearing the applicant’s testimony. He responded to questions from the Tribunal.

THE APPLICANT’S REQUESTS

15In his letter dated November 28, 2011, the applicant requests that:

i. The Tribunal reconsider its decision not to broaden the scope of the Application to include other “same-time, similar-fact” issues involving the respondent;

ii. The Tribunal reconsider its decision not to allow Mr. Spratt to act as “co-agent and support staff” in the proceeding; and

iii. I recuse myself.

16The respondent has responded to the applicant’s letter. It argues that the hearing of the Application should proceed and objects to any adjournment to deal with the issues raised by the applicant in his November 28, 2011 correspondence.

ANALYSIS

Reconsideration of procedural decisions

17Pursuant to section 45.7 of the Code, any party to a proceeding before the Tribunal may request that the Tribunal 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.

18Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In this regard, it is helpful 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. [Emphasis added.]

19In this case, the applicant’s request relates to two preliminary or procedural decisions of the Tribunal. These are not final decisions and, as such, are not properly the subject of a request for Reconsideration.

20In any event, the applicant has not presented any basis for reconsidering the procedural rulings. First, while the applicant disagrees with my determination concerning Mr. Spratt’s proposed similar fact evidence, he has presented no basis to reverse or revisit that decision at this stage. Second, it is not clear to me what role the applicant hoped Mr. Spratt would play at the hearing or how the Tribunal made any rulings that interfered with this. With the respondent’s consent, Mr. Spratt was not excluded from the hearing room during the hearing. The applicant presented his own submissions and he questioned the physician. At no point did the applicant indicate that he wished Mr. Spratt to make submissions or pose questions on his behalf. The applicant did not ask that Mr. Spratt participate in the mediation. The Tribunal has made no actual determination regarding the role Mr. Spratt may play at the hearing. The applicant has not requested that Mr. Spratt’s role be anything other than what is has been.

21For these reasons, the applicant’s request for reconsideration of the procedural decisions is denied.

Recusal

22As I understand it, the applicant is seeking my recusal because he believes that I may have already determined that he does not have a disability. Also, the applicant appears to object to and be offended by the respondent or the Tribunal questioning the existence of a disability. This appears to be a further basis for the applicant’s request for recusal.

23The applicant is not otherwise alleging a reasonable apprehension of bias. In his November 28, 2011 letter, the applicant writes:

I greatly appreciate the direct, no-nonsense approach that you take in establishing the facts – I was surprised that you open with questions from the Chair – my expectation was to present evidence and make arguments, supplemented with questions from the Chair, so it will take a little time for me to catch on – you have been very helpful in that regard. And despite the resolvable differences that we may have regarding procedural and evidentiary matters, I have full confidence that I will receive a fair and just hearing.

24Rather, the applicant frames the basis for the recusal request as follows:

And these are the only grounds upon which I would seek your recusal. If you believe, as the defendants believe, that I am not disabled or not disabled enough, then please make that declaration now. I could never overcome that prejudice in these proceedings and would seek relief.

25As I indicated to the parties during the mediation-adjudication, I have come to no conclusion on the merits of this matter (including the existence or not of a disability) and I will not do so until I have heard all the evidence. I have not predetermined the disability issue and there is no basis for my recusal.

26I note that the applicant signed a mediation-adjudication agreement in which he agreed not to request my recusal. To the extent that the applicant’s request for recusal stems from discussions during the mediation-adjudication, the mediation-adjudication agreement is a clear basis for denying the applicant’s request.

27In his November 28, 2011 letter, the applicant writes that his treating physician has identified a disability and that he has been issued a disabled parking permit. The applicant seems to be arguing that this is sufficient for him to establish discrimination under the Code and he seems to take issue with the Tribunal or the respondent questioning the physician’s conclusions or the accommodation measures the applicant requests.

28It is for the Tribunal to determine whether the respondent has breached the Code. As I indiated to the parties at the outset of the hearing, for the applicant to be successful, he must be able to demonstrate that he has a disability and that the accommodation measure he has requested is related to his disability. These are live issues before the Tribunal and it is perfectly appropriate for the Tribunal and the respondent to pose questions concerning these issues.

29The fact that the applicant’s treating physician has identified a disability is evidence before the Tribunal, which the Tribunal will consider in making its determination. Importantly, however, the treating physician’s evidence is not determinative of the proceeding. It will be for the Tribunal to determine whether the applicant’s request for accommodation is related to his disability or, as the respondent suggests, to his personal choice of vehicle. The very purpose of the hearing is to give the applicant an opportunity to present evidence and argument in this regard. It is also to give the respondent an opportunity to challenge the applicant’s evidence and present its own position.

30The Tribunal will issue a final decision in this matter once it has heard all of the evidence as well as legal argument from both parties. That final decision will include a determination of whether or not the applicant has a disability. It will also determine whether or not the accommodation measures requested by the applicant relate to his disability.

31It is not for the applicant to require a determination of either issue at this stage of the proceeding. Nor is it appropriate for the applicant to, as he suggests, request my recusal in the event that I do not find in his favour on the issue of disability.

32The applicant has engaged in a legal proceeding before the Tribunal. As the parties were unable to resolve the dispute, the matter is now in the Tribunal’s hands and it will be determined in accordance with the Tribunal’s Rules and its jurisprudence. If the applicant disagrees with the Tribunal’s final decision, he may take steps to have that decision reviewed.

33The Tribunal’s process is designed to give the parties an opportunity to challenge each others arguments and evidence. The fact that the respondent is challenging a position taken by the applicant is perfectly appropriate in a hearing context and is not a basis for me to recuse myself.

DECISION

34For all of these reasons, the applicant’s requests are denied. The Tribunal will schedule two further days of hearing on the dates already provided by the parties.