Chan Thai v. Hing Loong Investments Ltd., 2012 HRTO 574

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chan Thai

Applicant

-and-

Hing Loong Investments Ltd. and China City Supermarket

Respondents

Reconsideration Decision

Adjudicator: Genevieve Debane

Date: March 20, 2012

Citation: 2012 HRTO 574

Indexed as: Thai v. Hing Loong Investments Ltd.

WRITTEN SUBMISSIONS

Chan Thai, Applicant ) Bay Ryley, Counsel

1The applicant filed an Application on December 9, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in services on the basis of disability on behalf of the two named respondents.

2On September 8, 2010 the Tribunal issued an Interim Decision, 2010 HRTO 1838 which found at paragraph 15:

The consequences of the respondents’ failure to file a Response and comply with the Tribunal’s rules and directions is that the Tribunal deems them to have accepted all the allegations in the Application and to have waived all rights with respect to further notice or participation in this proceeding.

3On December 9, 2011, the Tribunal issued Decision 2011 HRTO 2227 (the “Final Decision”) which allowed the Application as against the respondent China City Supermarket only.

4On January 9, 2012, the applicant filed a Request for Reconsideration (the “Request”) of the Final Decision.

5In the Request the applicant asserts that submissions were filed by the applicant on November 10, 2010 (the “November 10 2010 submissions”) which should have been considered by the Tribunal.

Reconsideration

6Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with the 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.

7The Tribunal has issued Rules governing such requests 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.

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. The applicant has indicated that in this case Rule 26.5(2) applies in these circumstances.

9In the circumstances before me, I find that it is appropriate that the Final Decision be reconsidered. The applicant sent submissions in compliance with my Case Assessment Direction of November 5, 2010 (the “November 2010 CAD”), which directed the applicant as follows:

The Tribunal directs the applicant to provide further evidence and/or submissions on the following 3 points:

1. Para. 11 of his statement and particularly his assertion that there are not many places that he can go to buy groceries beyond the store that is located on Spadina Avenue in Toronto;

2. If liability is found, which respondent is liable for the alleged Code violation, as set out in para. 19(b) of the Interim Decision dated September 8, 2010, and beyond the reference to section 46.3 in the legal submissions filed on behalf of the applicant; and,

3. Whether the applicant is still seeking as remedies that the respondent move boxes out of the store’s doorway to make it more accessible and install a small ramp to allow persons using scooters to enter the store. This remedy was requested in the Application, but not addressed in the legal submissions. If the applicant is seeking these remedies, then the applicant should also reference caselaw in support of these requests.

4. The Tribunal directs the applicant to file this further information within five days of the date of this Case Assessment Direction.

10Through inadvertence, these submissions were not before me when I issued my decision. The failure to consider those submissions is a factor which outweighs the public interest in the finality of the Tribunal’s decisions.

The November 2010 submissions

11In the November 2010 submissions the applicant’s representative addresses the three points identified at paragraph 9 of this Reconsideration Decision.

Access to other stores

12The applicant’s representative states that there is only one other store in Chinatown that the applicant can access to purchase specialty groceries, and he can no longer compare prices and specialty products since all other stores in Chinatown are only accessible via stairs. The applicant’s counsel states that though the applicant can purchase some groceries (non specialty products) at a local store these are at a higher cost, especially meat products.

13The applicant indicates in his Request for Reconsideration that these establish a level of dependency on China City Supermarket and the applicant is requesting that the general damages be increased to $2,500 dollars.

14I have considered the submissions of the applicant and I do not think it is appropriate to increase the general damages. Though, there is some explanation with respect to why he preferred to shop at China City Supermarket counsel acknowledges that there is one other store that he can shop at to obtain specialty products and he can purchase groceries at other stores. In these circumstances, the amount of $2,500 dollars as general damages is fair and appropriate.

Liability of Hing Loong Investments Ltd.

15In the November 2010 submissions, the applicant states that the respondents should be held jointly liable for the discrimination but provides no further support for this position.

16Since, there is no further explanation provided by the applicant there is no reason to reconsider the dismissal of the Application as against Hing Loong Investments Ltd.

Public Interest Remedies

17In the November 2010 submissions the applicant requests that the respondents ensure that the entrance of the store is maintained to ensure that individuals on scooters are able to enter and exit the store, including ensuring that boxes be removed from the entrance.

18Having considered the applicant’s submissions I think it is appropriate for the Tribunal to issue a remedy which would ensure that individuals on scooters can access China City Supermarket. However, the applicant indicated in his Application and submissions to the Tribunal that he has been able to access the store though with some difficulty because of the small step. Therefore, in these circumstances, it may be that the entrance to the store can be made accessible without the respondent necessarily having to install a ramp. It is appropriate in these circumstances that the respondent be directed to investigate measures which would make the entrance to the store accessible and barrier free for disabled individuals using scooters.

Order

19Therefore, having reconsidered the Final Decision, the Tribunal makes the following Order:

(a) The Application is dismissed as against Hing Loong Investment Ltd.;

(b) Within 30 days of this Reconsideration Decision, China City Supermarket will pay $2,500.00 to the applicant as compensation for the infringement of the Code and injury to his dignity, feelings and self-respect;

(c) China City Supermarket shall pay to the applicant pre-judgment interest running from June 10, 2009, the date the applicant was denied services, on the sum at paragraph a) above, calculated in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43;

(d) China City Supermarket shall pay the applicant post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act from the date that is 30 days after the date of this Reconsideration Decision;

(e) Within 90 days from the date of this Reconsideration Decision China City Supermarket shall confirm to the applicant that all of its officers, directors and managers have

(i) completed the Human Rights 101 eLearning Module prepared by the Ontario Human Rights Commission which is available online at: http://www.ohrc.on.ca/hr101/; and

(ii) obtained and read a copy of the Ontario Human Rights Commission’s “Policy and Guideline on the Duty to Accommodate”; and

(f) Within 90 days from the date of this Reconsideration Decision China City Supermarket shall ensure that the entrance to the store is accessible and barrier free to individuals with disabilities using scooters, including ensuring that any boxes and/or debris are removed from the entrance.