HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Richard Owens
Applicant
- and-
Minnick & Company Appraisers Ltd.
Respondent
RECONSIDERATION DECISION
Adjudicator: Douglas Sanderson
Indexed as: Owens v. Minnick & Company Appraisers ______________________________________________________________________
WRITTEN SUBMISSIONS
Richard Owen, Applicant ) Self-represented
1On February 22, 2011, the Tribunal issued its Decision in this Application, 2011 HRTO 375, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.
background
2The Application concerned an appraisal of the applicant’s home conducted by the respondent. The appraisal referred to the proximity of the applicant’s home to Douglas Creek Estates, in Caledonia, which had been occupied by First Nations protesters in 2006 and was the subject of considerable controversy and media coverage. The applicant alleged that the respondent undervalued his home because of bias against First Nations people. The applicant, who is not a person of First Nations ancestry, argued that he was subject to discrimination on the basis of association with a person identified by a prohibited ground of discrimination.
3The Tribunal’s Decision found that there was no evidence that the appraisal was conducted improperly and the evidence did not support a conclusion that the appraisal was informed by discriminatory considerations.
THE REQUEST FOR RECONSIDERATION
4In his Request for Reconsideration, the applicant states that I improperly admitted evidence that was not disclosed prior to the hearing, as required by Rule 16 of the Tribunal’s Rules of Procedure. Specifically, the applicant states that I permitted the respondent’s witness to explain why he considered the status of the Douglas Creek Estates to continue to be a valid consideration in his appraisal. The applicant states that this testimony was “based on document(s) he prepared for Ontario Government”, which were not disclosed or entered into evidence. The applicant argues that it was improper of me to allow the testimony absent the underlying documents and without these documents, the applicant’s ability to cross examine the witness was impaired.
DECISION
5Under section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, , the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.
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.
6The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). Most relevant to this Decision is Rule 26 which states:
26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision
26.5. 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; 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.
7The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
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.
8As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.
9As indicated above, the applicant relies on Rule 16. The applicant submits that I admitted testimony not disclosed prior to the hearing as is required under Rule 16, and that I did not require production of documents the applicant asserts are the basis for the testimony. The relevant portions of Rule 16 are as follows:
16.2 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):
a) a list of documents upon which the party intends to rely; and
b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.
16.3 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must file with the Tribunal:
a) a list of documents upon which the party intends to rely; and
b ) a copy of each document contained on the list.
16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.
10The respondent complied with Rule 16 by disclosing the documents it intended to rely upon at the hearing. The respondent confined itself to these documents at the hearing with the exception of a newspaper article to which I assigned no weight. The respondent also provided a summary of the expected testimony of its witness in
accordance with Rule 17.2. The respondent’s witness testified consistently with the summary during his examination-in-chief. Consequently, the applicant’s argument that he was caught by surprise has no basis in reality.
11The testimony in issue arose during cross examination in response to the applicant’s questions regarding the witness’ understanding of the current state of affairs at the Douglas Creek lands. The witness’ understanding was based in part on his experience doing appraisal work near the Douglas Creek lands in 2009. The witness made no reference to any document when testifying about this experience. There were no documents underlying this testimony. Moreover, the applicant did not object to the testimony or seek production of any document at the hearing. Having raised the issue himself while cross-examining the witness, he cannot complain that he received an unfavourable answer. The applicant’s characterization of the evidence is also simply wrong, and there is no basis for his argument that I accepted testimony tendered contrary to the Tribunal’s Rules of Procedure.
12The remainder of the Request for Reconsideration essentially repeats arguments made orally before the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.
13On the Request for Reconsideration form (Form 20), the applicant indicated he sought reconsideration for two reasons. First, that there were new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier. Second that the Decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. The applicant, however, provided no new facts and did not explain how the Decision was in conflict with established jurisprudence or Tribunal procedure.
14In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The
Request is denied.
Dated at Toronto, this 7th day of April, 2011.
”signed by”____________
Douglas Sanderson
Vice-chair