Jimmy Gorgiev v. Peel Condominium Corporation No. 542, Joanna Castellano and Brian McClure, 2012 HRTO 2057

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jimmy Gorgiev

Applicant

-and-

Peel Condominium Corporation No. 542, Joanna Castellano and Brian McClure

Respondents

RECONSIDERATION DECISION

Adjudicator: Caroline Rowan Date: October 26, 2012 Citation: 2012 HRTO 2057 Indexed as: Gorgiev v. Peel Condominium Corporation No. 542

1This Decision addresses a Request for Reconsideration filed by the applicant on October 17, 2012, in relation to the Tribunal’s Decision in 2012 HRTO 1874 dated October 2, 2012 (the “Decision”). The Decision dismissed the Application dated January 24, 2012 (the “Application”) pursuant to section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on the basis that substance of the Application had been appropriately dealt with in another proceeding, and, more specifically, in the court proceeding heard in 2011 before J. Bielby and J. Lemon of the Ontario Superior Court of Justice (the “Court Proceeding”).

2As noted in the Decision, the Court Proceeding dealt with an application brought by Peel Condominium Corporation No. 542 (“PCC”) against Mr. Gorgiev because he had engaged a contractor to widen his driveway at his condominium townhouse after he requested and was denied permission to do so from the Condo Board. Mr. Gorgiev maintains that he needs a second outdoor parking space because he is unable to use his second parking space in the parking garage for disability related reasons (i.e. claustrophobia). The present Application before the Tribunal was brought shortly after PCC’s application was granted by the Ontario Superior Court of Justice in December 2011.

3Section 45.7 of the Code provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own motion, reconsider a final decision in accordance with the Tribunal’s Rules of Procedure. The 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 March 2010).

5The Tribunal’s Rules of Procedure include the following provisions relevant to the present Reconsideration:

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.

6The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

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 Tribunal. 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.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

7Reconsideration is a discretionary remedy and is not an occasion to re-argue a case. Once the parties to an application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions (Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34).

8In the present case, the applicant states in his Request for Reconsideration that the request is being made for the following two reasons: (1) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; and (2) the Decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. In this connection, he indicates that he will be submitting medical evidence of mental illness “if asked” and notes that he needs to protect his privacy, his dignity and his home and provides an attachment from what he refers to as the bank’s lawyers, KRMC.

9The letter dated October 5, 2012 attached to the Request for Reconsideration is a letter addressed to the applicant from Kronis, Rotsztain, Margles, Cappel LLP, the lawyers for Scotia Mortgage Corporation (the “Bank”). The letter refers to a lien which was placed on the applicant’s property by PCC on May 10, 2012, to the fact that the Bank exercised its right and paid off the lien against his property, to the fact that the applicant is in default of payments due and that, as such, the Bank is exercising its option to accelerate the repayment of the loan amount.

10The applicant also subsequently wrote to the Tribunal on October 23, 2012, asking if the Tribunal can assist him in protecting his home and noting that he cannot lose his home because of the medical accommodation he pursued. He expresses the view that the amount that was charged by the Condo Board was excessive and is impossible for him to pay at this time and that the Bank has paid this amount and wants to power of sale his home.

11Having reviewed the applicant’s submissions filed in support of his Reconsideration Request, I find that none of the circumstances set out in Rule 26.5 are present. More specifically, the applicant has not set out any new facts or evidence which could not have been obtained earlier and which are potentially determinative of the case, nor did he provide any case law indicating that the Tribunal’s Decision is in conflict with established jurisprudence.

12There is firstly nothing to suggest that the new medical evidence he proposes to submit “if asked” could not have been obtained earlier. More importantly, such evidence could not be determinative as it is not relevant to the preliminary issue considered in the Decision concerning whether the substance of the application had already been appropriately dealt with in the Court Proceeding. Such medical evidence could only be relevant to the merits of his application, which the Tribunal determined the applicant should not be permitted to pursue since the applicant’s human rights claim was appropriately dealt with in the Court Proceeding before an adjudicator with the jurisdiction to address it.

13The other fact or evidence that the applicant refers to in support of his Reconsideration Request is that the Bank has, since the Decision was issued, exercised its option to accelerate the repayment of the loan amount on his property apparently as a result of a lien placed on his property following his loss before the Superior Court of Justice in the Court Proceeding. This new turn of events is not, however, a new fact or new evidence which could be determinative of the preliminary issue considered in the Decision such as to warrant reconsideration. Instead, it is apparent that the applicant continues to be dissatisfied with the way in which his human rights issues were addressed in the Court Proceeding and with the consequences of his loss in that proceeding. However, as noted in the Decision, to the extent that the applicant is dissatisfied with the Court’s decision, he must follow the appropriate channels to challenge that decision and should not be permitted to launch a “collateral attack” on that decision in another forum.

14For all these reasons, the Request for Reconsideration is dismissed.