Rose Janes v. Murray Wright, 2012 HRTO 2369

Human Rights Tribunal of Ontario

Between: Rose Janes, Applicant -and- Murray Wright, Respondent

Reconsideration Decision

Adjudicator: Douglas Sanderson Date: December 19, 2012 Citation: 2012 HRTO 2369 Indexed as: Janes v. Wright

Written Submissions

Rose Janes, Applicant Jo-Anne Boulding, Counsel

Murray Wright, Respondent Self-represented

1The respondent requests Reconsideration of the Tribunal’s Decision of August 24, 2012, 2012 HRTO 1621, in which the Tribunal found the respondent discriminated against the applicant with respect to the occupancy of accommodation because of receipt of public assistance.

Decision Summary

2The respondent’s mother passed away and the respondent agreed to rent his mother’s house in Baysville, Ontario (the “property”) to the applicant. The applicant and her family were to move into the property on or about September 1, 2009, but the respondent resiled from the agreement and required the applicant to vacate the house by the end of September 2009 after he formed the (erroneous) view that the applicant received Ontario Works benefits on an ongoing basis. The Tribunal found that the respondent’s actions amounted to discrimination with respect to the occupancy of accommodation because of receipt of public assistance. The Tribunal ordered the respondent to pay the applicant $7,500.00, plus pre-judgement and post-judgement interest, to compensate her for the injury to her dignity, feelings and self-respect.

3The circumstances in which Reconsideration may be granted are set out in Rule 26.5:

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.

4The 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.

5The respondent filed a Request for Reconsideration (the “Request”) on September 24, 2012 and relies upon Rules 26.5(c). On October 5, 2012, the Tribunal directed the applicant to provide written submissions regarding the Request, which the applicant filed on November 27, 2012.

The Request

6The respondent noted that the Tribunal issued a Case Assessment Direction ("CAD") on January 12, 2012 addressing a number of case management issues in advance of the hearing, which was scheduled for one day on January 16, 2012. Amongst other things, this CAD indicated that the hearing on January 16, 2012 would be devoted to evidence regarding liability, i.e., whether the respondent violated the Code, and, if necessary, another hearing date would be rescheduled to hear evidence regarding the appropriate remedy. The respondent submitted, however, that the Decision dealt with both issues of liability and remedy without affording the respondent the opportunity to make arguments regarding the appropriate remedy, which is the applicant submitted denied him access to "normal due process".

7The respondent submitted that the Tribunal found that rental accommodation was "scarce" in the area in which the applicant and respondent lives in its calculation of general damages. The respondent submitted that, in fact, rental accommodation is plentiful in the area and the respondent has had difficulty renting the property as a result.

8The respondent also submitted that the reasons for the award of general damages were insufficient. The applicant submitted that the Tribunal gave its reasons for the general damage award in only one paragraph. The applicant submitted that the cases in the Tribunal cited regarding remedy are "large corporation rental organizations" and should not apply to the respondent since he is an individual who was dealing with his mother's estate. In that regard, the respondent submitted that the Tribunal did not address his argument that he was acting in his capacity of an estate trustee in his dealings with the applicant and therefore should not have been found personally responsible.

9The respondent also submitted the Tribunal did not address the fact that the applicant did not have to leave the rented house and was protected by the Residential Tenancies Act, S.O. 2006, c.17. The respondent submitted that the applicant did not file an application to the Landlord and Tenant Board and therefore did not mitigate her damages.

10The respondent also made the following submissions:

a) The respondent has now received confirmation from the Ontario Provincial Police and/or the Royal Canadian Mounted Police that he has no criminal record;

b) The RCMP informed him that they were inquiring regarding the activities of two "certain individuals" of "about a year and a half ago";

c) The respondent is registered with the RCMP because he was a bonded carrier and licensed to carry a gun;

d) The respondent worked in the hospitality industry for 34 years in various capacities and never discriminated against any of the many people with whom he dealt who were identified by a prohibited ground of discrimination;

e) The respondent taught at Georgian College for 15 years and never discriminated against any student who may have been identified by a prohibited ground of discrimination, including receipt of social assistance;

f) the respondent treated his sister-in-law, a person with a disability, well and was never ashamed to be with her;

g) The respondent was not able to obtain evidence regarding the applicant’s bank account or information regarding her employment at Home Depot prior to the hearing, but will be able to obtain this evidence to present at the Reconsideration hearing; and,

h) The applicant is willing to undertake a lie detector test at his own expense to prove that his testimony at the hearing was true.

The Applicant's Submissions

11The applicant submitted that the CAD of January 12, 2012 indicated that the Vice-chair (this writer) would explore mediation and would deal only with the issue of liability on January 16, 2012. After attempting mediation, the hearing commenced, but the parties were unable to conclude their evidence on January 16, 2012. The applicant submitted that the matter was put down for another hearing day on April 20, 2012. The applicant submitted that both parties had the opportunity to make submissions regarding whether the Code had been violated and the appropriate remedy, if any. The applicant submits the respondent did not object to proceeding directly to argument on April 20, 2012 and had been in receipt of the applicant's book of authorities since the hearing date in January. The applicant submitted that the respondent had a full opportunity to enter his evidence during the hearing and does not dispute the Tribunal's findings of fact. Rather, the applicant submitted that the respondent advanced the following arguments in his Request for Reconsideration:

a) The respondent is not a corporation so the decisions cited don't apply to him;

b) The respondent was an estate trustee and as such he should not be held responsible for his actions;

c) The respondent's character references and his own avowed truthfulness should be considered by the Tribunal.

12The applicant submitted that the respondent could have advanced all of these arguments at the hearing, but did not. The applicant submitted that the respondent did not present new facts or evidence that would change the Decision and does not deny the violations of the Code. The applicant submitted that the Decision and remedy is not in conflict with Tribunal jurisprudence and no other factors exist that outweigh the public interest in the finality of Tribunal decisions.

Analysis and Decision

Rule 26.5(a)

13The respondent submitted that the Decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of public importance. However, the respondent also seeks to adduce evidence not presented at the hearing, which would engage rule 26.5(a). To meet the test set out in Rule 26.5(a), the party requesting Reconsideration must establish that there are new facts that could potentially be determinative of the case and establish that these new facts could not reasonably have been obtained earlier. The Tribunal has found that the absence of either of these requirements is fatal to a Request for Reconsideration under Rule 26.5(a). See M.K. v. 1217993 Ontario, 2011 HRTO 1362.

14Much of the evidence the respondent would reduce amounts to character evidence that would be offered to establish that the respondent did not discriminate against others in the past, has no criminal record, and is an honest person. The respondent did adduce other character evidence at the hearing and, as noted in the Decision, such evidence is generally inadmissible in Tribunal proceedings and I therefore attached no weight to this evidence (at paragraph 2). I see no reason to treat this character evidence differently. The fact that, according to him, the respondent may not have discriminated against others in the past is not relevant to the question of whether he discriminated against the applicant, which was also explained in the Decision (at paragraph 71). The respondent's lack of a criminal record is entirely irrelevant and the respondent did not indicate why information about the applicant’s bank account or her employment (both of which were in any event explored in evidence during the hearing) was significant. All of this evidence was in the respondent's possession prior to the hearing (he may not have had confirmation from the police, but presumably he was aware that he had no criminal record). The respondent did not explain why the fact that the RCMP may be inquiring into the conduct of two unidentified individuals that occurred “year and a half ago” had any bearing on this matter. Consequently, none of this proposed evidence is new or could be potentially determinative of the case; therefore, the respondent has not met the criteria for reconsideration under rule 26.5(a).

Deficiencies in the Respondent’s Case

15The respondent submitted that I did not address the following arguments presented at the hearing: 1) that he should not be personally responsible for his actions taken as his mother's estate trustee and 2) that he did not require the applicant to vacate the property and the applicant failed to mitigate her damages by filing a complaint to the Landlord and Tenant Board. With respect, the respondent made no submissions to the effect that his status as his mother's estate trustee insulated him from personal responsibility or that the applicant failed to mitigate her losses by not pursuing a complaint to the Landlord and Tenant Board. The respondent very clearly did require the applicant and her family to vacate the property by the end of September 2009. The respondent could have and should have made these arguments at the hearing and in my view, this aspect of the Request amounts to an attempt to repair a deficiency in the presentation of his case at the hearing. The Tribunal's jurisprudence and the Practice Direction on Reconsideration make clear that this is not the purpose of Reconsideration. See Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34.

16I heard evidence from the applicant’s husband that he and the applicant had been looking for rental accommodation for their family, but found it scarce in the area. Both the applicant and her husband testified that they were unable to find another suitable rental property for their family for approximately 18 months. The respondent did not challenge this evidence or adduce contradictory evidence. In fact, the respondent’s evidence was that he rented the property several times after terminating the rental agreement with the applicant. The respondent chose not to address this issue during the hearing. Again, Reconsideration is not an opportunity to repair a defect in his case.

Rule 26.5(c)

17In Sigrist, supra, the Tribunal also described the requirements for Reconsideration under Rule 26.5(c) as follows, at paragraph 54-56:

On my review of the materials and the interim decision, I am not satisfied that any part of the decision is in conflict with established jurisprudence or Tribunal procedure. I have considered what is meant by the requirement of a “conflict”. Given the public interest in finality of decision-making and economy of legal proceedings, as discussed above, a decision should not be reconsidered on the basis of an assertion of an apparent conflict with the result reached in another decision. There must be a conflict with “established” jurisprudence or procedure in the sense that there is a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules.

The respondent did not identify how the Decision departed from any settled legal principle. Rather, the respondent submitted that the reasons for awarding general damages were insufficient and the cases cited in the Decision regarding the principles the Tribunal applies when awarding damages (ADGA Group Consultants Inc. v. Lane, 91 O.R. (3d) 659, 295 D.L.R. (4th) (Div. Ct.) and Arunachalam v. Best Buy Canada, 2010 HRTO 1880) should not apply to him because he is not a corporate respondent. The respondent made no submissions regarding how the proposed Reconsideration involves a matter of general or public importance. In these circumstances, the respondent has not met the requirements of rule 26.5(c).

18In any event, I do not agree that the reasons for the award of damages were insufficient. The reasons for the damages awarded were not confined to the paragraph setting out the amount of damages (paragraph 82). Rather, this paragraph was the culmination of the analysis, contained in the preceding paragraphs, of the evidence and the applicable legal principles to derive an award of compensation for injury to dignity, feelings and self-respect. Consequently I do not agree that my reasons were any way inadequate.

19As I noted in the Decision, the Tribunal's remedial power under the Code is compensatory, not punitive. Accordingly, the focus when fashioning award of damages is on the effect the breach of the Code had on the applicant, not the circumstances of the respondent. The ADGA and Arunuachalam decisions set out the criteria the Tribunal applies when calculating damages, which do not include whether the respondent is an organization or an individual person. Accordingly, I find the respondent's contention that I applied incorrect legal principles to this case has no merit.

No Denial of Natural Justice

20The respondent submitted that the Tribunal failed to bifurcate the hearing as indicated in CAD of January 12, 2012. The respondent submitted that this failure resulted in a denial of natural justice because he was not afforded an opportunity to make submissions regarding the appropriate remedy. In my view, denial of natural justice could be grounds for reconsideration under rule 25.5(d). I am satisfied, however, that there was no denial of natural justice in this case. The matter was originally scheduled for a one-day hearing on January 16, 2012. With a view to completing the hearing on that day, I advised the parties in the CAD of January 12, 2012 that I intended to hear evidence only regarding liability, i.e., whether the respondent had breached the Code and that a second hearing day convened to deal with the issue of remedy, if needed. On the day of the hearing, the parties engaged in mediation prior to the commencement of the hearing, which was unsuccessful. Consequently it was apparent that a second day of hearing would be required. The applicant proceeded to enter all of her evidence, including evidence supporting the remedies she requested – without objection from the respondent. The respondent called three witnesses, but his own testimony was held over for a second day of hearing, which was later scheduled on April 20, 2012.

21On April 20, 2012, the respondent gave his testimony, which included evidence regarding the remedies the applicant sought. The parties then proceeded to argument and both parties presented submissions regarding whether the respondent breached the Code and the remedies the applicant requested. The respondent made no objection to addressing the issue of remedy. In this regard, the respondent was reasonably successful, as I rejected all the applicant’s remedial requests with the exception of damages for injury to dignity, feelings and self-respect. While it may have been preferable to explicitly clarify that the parties were to address both issues of liability and remedy after the first day of hearing, the fact remains that the respondent clearly came to the second day of hearing prepared to address the issue of remedy and did so. As a result, I cannot agree that any denial of natural justice occurred in this case. In these circumstances, I find that there is no basis for Reconsideration under Rule 26.5(d).

22In my view, the applicant provided no reason to conclude that compelling and extraordinary circumstances exist that would call for Reconsideration of the Decision.

23The respondent also requested a stay of the Decision pending Reconsideration and Judicial Review. There is no basis for the Tribunal to grant a stay.

24The Request for Reconsideration is dismissed.