HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Samantha Scharf
Applicant
-and-
Electra Kiriakakis, Donna Kiriakakis, and Angelo Kiriakakis
Respondents
RECONSIDERATION DECISION
Adjudicator: Michelle Flaherty
Indexed as: Scharf v. Kiriakakis
WRITTEN SUBMISSIONS
Samantha Scharf, Applicant ) On her own behalf
OVERVIEW
1This 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. She also alleges reprisal or threat of reprisal. In essence, the applicant alleges that the respondents failed to accommodate her environmental and chemical sensitivities. She states that she alerted the respondents to her disability-related needs. When she raised the need for specific accommodation measures, the applicant states that the respondents terminated her lease agreement.
2Each respondent has filed a separate Response denying the allegations of discrimination. They state that the applicant did not alert them to any disability or need for accommodation. She did, however, complain about odours emanating from the restaurant located just below the apartment. The respondents state that the applicant’s lease was not terminated, but that the applicant was given an opportunity to opt out of the lease, given her complaints about odours.
3In an email to the Tribunal (copied to the respondents) on October 17, 2011, the applicant requests that the hearing of this matter proceed based on written materials filed by the parties. She writes:
To ensure I am not disadvantaged due to medical limitations in said hearing proceeding, it is necessary to provide accommodation in that all the hearing process requires to be done via written submissions. I am not able to attend in person nor proceed via telephone.
4The applicant provided medical reports indicating that she has chemical sensitivities. The medical reports appear to have been originally produced to her employer and they support a request that she be allowed to “tele-work”.
5In an Interim Decision, 2011 HRTO 2061, the Tribunal denied the applicant’s request that the hearing proceed based on written material only. I found that, while the applicant had submitted some medical evidence regarding her disability, this evidence did not support her request for a hearing based on written materials only. I held that, in the circumstances of this case, where the outcome would turn on which witness or witnesses’ version of the facts is preferred, the Tribunal could not fairly assess the credibility of all of the witnesses based on written materials. I found that oral cross-examination was essential for the Tribunal to weigh the credibility of the witnesses.
6Further, I found that while the applicant had submitted some medical evidence, none of it suggested that she could not, at a minimum, attend the hearing by telephone. Indeed, the medical evidence she did provide recommends tele-work. I also noted that, while the mediation was eventually cancelled at the applicant’s request, she had initially agreed to participate in a mediation by telephone.
7Finally, while the applicant stated that she is unable to attend a hearing in person, she has not attempted to identify her sensitivities for the Tribunal or given the Tribunal an opportunity to determine whether it can accommodate those sensitivities at an in-person hearing. While the medical evidence she provides states that she is not able to attend her workplace on a regular basis, it is not clear that the applicant would also, for disability-related reasons, be unable to attend a hearing as long as certain accommodation measures are in place.
8The Interim Decision included the following direction to the Applicant:
Within 30 days of the date of this Interim Decision, if the applicant wishes to proceed with her Application, she must:
Advise the Tribunal and the respondents in writing what accommodation measures she requires in order to attend a hearing of this matter in-person; and
In the alternative, she must file with the Tribunal and deliver to the respondents a Request for an Order During Proceedings that she be allowed to testify and attend the hearing by telephone along with any medical evidence in support of this Request.
9The Interim Decision also indicated that, if the applicant failed to file submissions as directed, the Application might be deemed abandoned.
10The applicant did not file submissions as directed and the Application was dismissed as abandoned: 2011 HRTO 2278.
11On February 25, 2012, the applicant filed a Request for Reconsideration. A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondents.
ANALYSIS
12Pursuant to section 45.7 of the Code, any party to a proceeding before the Tribunal may request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request.
13Pursuant to Rule 26.1, a Request for Reconsideration must be filed within 30 days of the date of the Decision. Rule 26.5 states that a 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.
14Reconsideration 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.
15In her Request, the applicant indicates that the Decision ought to be reconsidered because there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, the Decision is in conflict with established case law or Tribunal procedure and because other factors exist that outweight the public interest in the finality of the Decision.
16The applicant argues that she did not abandon her Application. She states that she did not receive a copy of the Decision until after the Christmas holidays. She states also that she was so upset by the Interim Decision and the Decision that she could not respond to them until February 24, 2012.
17Further, the applicant argues that her request to proceed based on written materials only is reasonable. She disputes and is insulted by the Tribunal’s conclusion that the medical information she provided does not support her request for a hearing based on written materials only. She states that she is not able to provide the Tribunal and the respondents with information regarding what accommodation measures she requires in order to attend an in-person hearing.
18In the Request and the submissions filed in support of the Request, the applicant has not identified any new facts or evidence that could potentially be determinative of the case. The applicant does not cite any caselaw or explain why she feels the Decision is in conflict with any established law or Tribunal procedure. Although she argues that the the Interim Decision is incorrect and that the Application was not abandoned, the applicant does not identify any factors that outweigh the public interest in the finality of Tribunal decision.
19I note that the applicant’s Request was filed more than 30 days after the date of the Decision. Even if I accepted (without finding) that the applicant’s explanation for the delay in filing the Request are reasonable, there is no basis to grant the Request.
20The applicant failed to provide submissions in response to the Tribunal’s Interim Decision. She argues that she did not intend to abandon the Application but was so insulted and upset by the Interim Decision that she needed additional time to respond. I am not satisfied that the applicant has provided a reasonable explanation for failing to comply with the Tribunal’s direction or that there is any basis for reconsidering the Decision concluding that the Application had been abandoned.
21Further, the crux of the applicant’s Request concerns the Interim Decision, 2011 HRTO 2061, where the Tribunal concluded that a hearing based on written materials only is not appropriate in the circumstances. This is a preliminary or procedural decision. Because it is not a final decision within the meaning of the Tribunal’s Practice Direction on Reconsiderationit is not properly the subject of a request for Reconsideration.
22In any event, the applicant has presented no additional information to support her request for a hearing based on written materials, nor has she provided the information she was directed to provide in the Tribunal’s Interim Decision. The applicant simply reiterates arguments already made.
DECISION
23For all of these reasons, the Request for Reconsideration is denied.
Dated at Toronto this 16th day of March, 2012.
”signed by”
Michelle Flaherty
Vice-chair