Hawley v. Fairlea Park Housing Co-operative Inc., 2013 HRTO 1198

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bryan Hawley Applicant

-and-

Fairlea Park Housing Co-operative Inc. Respondent

A N D B E T W E E N:

Bryan Hawley on behalf of Bette Hawley Applicant

-and-

Fairlea Park Housing Co-operative Inc. Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson Date: July 10, 2013 Citation: 2013 HRTO 1198 Indexed as: Hawley v. Fairlea Park Housing Co-operative Inc.

WRITTEN SUBMISSIONS

Brian Hawley on his own behalf and on behalf of Bette Hawley, Applicant Self-represented

Introduction

1Application 2011-08351-I was filed by the applicant, Brian Hawley, on March 16, 2011, under s. 34(1) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination on the basis of disability, age, and receipt of public assistance in housing.

2In an Interim Decision dated March 22, 2013, 2013 HRTO 490, the Tribunal determined that the applicant’s Request for an Order During Proceedings to add his spouse, Bette Hawley, as a “co-applicant” should be treated as a new Application filed on Ms. Hawley’s behalf on December 19, 2011, under s. 34(5) of the Code, and assigned file number 2013-13964-I.

3The Tribunal’s Interim Decision dated March 22, 2013, also followed a summary hearing and dismissed some of the allegations in the Applications, either on the basis of delay, or on the basis of having no reasonable prospect of success within the meaning of Rule 19A of the Tribunal’s Rules of Procedure.

4On April 22, 2013, the applicant delivered and filed a Request for Reconsideration.

DECISION

5Under s. 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 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 Reconsideration 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.

9In the present case, the applicant relies on subsection (a) of Rule 26.5, above. The applicant requests that the Tribunal reconsider its findings that particular allegations have no reasonable prospect of success, as set out at paragraphs 40, 43 and 52 of the Tribunal’s Interim Decision dated March 22, 2013.

10The Tribunal stated as follows at paragraph 40 of the Interim Decision:

With respect to Mr. Hawley’s allegation that the respondent denied him copies of documents in digital format, the applicant provided no further particulars with respect to this allegation in either his Application or his submissions at the summary hearing. The applicant did submit in his Reply, however, that on May 18, 2010, he asked the respondent for copies of minutes in either hard copy or electronic format. He explains in his Reply that he uses a magnifying glass to read hard copies. He did not refer to any potential evidence that he actually asked the respondent for copies of documents in digital format in order to accommodate a disability-related need. Aside from baldly asserting that he was denied copies of digital documents, and despite submitting numerous documents, the applicant did not refer to any evidence reasonably available to him concerning requests for, or denials of, copies of documents in digital format that would support a finding of discrimination on the basis of the grounds alleged. In the circumstances, I also find that this allegation has no reasonable prospect of success and it is dismissed.

11The applicant submits that the Tribunal stated that he did not give evidence that he needed copies of documents in digital format. The applicant refers to an email dated May 18, 2010, that he included with his Reply filed January 4, 2012. In the email, which is not new evidence, the applicant asks the respondent for copies of minutes, and states that, “Either hard copies or electronic copies are fine.” The applicant clearly requested either hard copies or electronic copies, whereas his allegation is that the respondent denied him copies of documents in digital format which would have allowed him to use “technologies” he has to read them. I also note that nothing in the email indicates that the request was in any way related to a disability, or that he had a disability-related need for digital copies. Again, the applicant has not referred to any potential evidence that he actually asked the respondent for copies of documents in digital format in order to accommodate a disability-related need.

12I find that the applicant has not referred to any new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier, nor has the applicant established that any of the other threshold criteria justifying reconsideration have been met with respect to the Tribunal’s determination at paragraph 40 of the Interim Decision.

13The applicant also seeks reconsideration of the Tribunal’s findings at paragraph 43 of the Interim Decision, where the Tribunal stated as follows:

To the extent that the applicant may be alleging that the request to downsize was discriminatory, in the particular circumstances of this case, I find that the applicants have not established how the request to downsize could reasonably be considered to amount to a Code violation. In addition, the applicants have not pointed to any evidence reasonably available to them that could establish that the request to downsize was a violation of the Code on the grounds alleged. To the extent that the applicants pointed to evidence of other families in the co-op, I do not find that this supports their allegations, as it appears that other over-housed families who were also in receipt of public assistance were not moved. I find that to the extent that the applicants may be alleging that the request to downsize was discriminatory, the applicants have not established that this allegation has a reasonable prospect of success and it is dismissed on that basis. …

14I note that the Tribunal also commented as follows at paragraphs 41 and 42 of the Interim Decision:

With respect to the remaining allegations that are timely, the applicant and claimant allege generally in their Applications that what happened would not have happened had they not been in receipt of social assistance, including a rent subsidy. While it is not entirely clear, it appears that they are not alleging in their Applications that the original request to downsize was discriminatory. They allege that there were just three of them living in a four-bedroom unit, and they had long been prepared to move to a smaller unit, believing in the principle that the limited resources of the co-op ought to be put to the best use. They also submitted more than once at the summary hearing that when they were told to move in December 2009, they were willing to move because they were over-housed. They submitted that moving to the other unit only became an issue once they saw the condition of it.

I also note, however, that the applicant and the claimant allege in the Applications that when they received written notice from the respondent on March 15, 2010 that they were to be moved, another family, also seniors with disabilities and limited income, received virtually the same notice, which was unnecessarily harsh and intimidating. On the other hand, the applicants also submitted at the summary hearing that not all over-housed members received notices to downsize, and that they were the only over-housed people receiving a subsidy to downsize. They referred to another over-housed family in receipt of social assistance who were not asked to move at the time.

15In his reconsideration request, the applicant refers to a respondent “newsletter”, purportedly from June 2009 that states, “Until further resolution, no requests for internal transfers will be approved.” A copy of the newsletter was provided to the Tribunal prior to the summary hearing, and it is not new evidence. The applicant also states that he would like to subpoena the respondent for information pertaining to over-housed, subsidized members in 2009 to see if they were also downsized. He asserts that people are still over-housed to this day.

16The applicant also baldly asserts that he and Ms. Hawley were “targeted” by the respondent because of their persistent requests for information pertaining to subsidy calculations, but he has not explained how they were targeted, nor has he pointed to any potential evidence that would support this assertion. I note that the applicant appears to take issue with the Tribunal’s finding in its Interim Decision that, to the extent that the applicant and the claimant may be alleging that the request to downsize was discriminatory, they have not established that this allegation has a reasonable prospect of success. As the Tribunal’s Interim Decision indicated, the applicant and the claimant submitted more than once at the summary hearing that when they were told to move in December 2009, they were willing to move because they were over-housed. They submitted that moving to the other unit only became an issue once they saw the condition of it.

17In my view, the applicant has not pointed to any evidence reasonably available to either him or Ms. Hawley that could establish that the request to downsize was a violation of the Code on the grounds alleged. Having regard to the threshold criteria for granting reconsideration, I find that the applicant has not referred to any new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier, nor has the applicant established that any of the other threshold criteria justifying reconsideration have been met with respect to the Tribunal’s findings at paragraph 43 of the Interim Decision.

18The applicant also appears to be essentially repeating arguments already made before the Tribunal in this matter. As indicated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, a request for reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their 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. I find that the applicant’s submissions with respect to other over-housed families is not only speculative, but repeats arguments on issues already fully canvassed before the Tribunal.

19The applicant also seeks reconsideration of the Tribunal’s findings at paragraph 52 of the Interim Decision, where the Tribunal stated as follows:

Although it is not entirely clear, it appears that the applicant may be alleging, more generally, that they were subjected to discrimination on the alleged grounds when they were effectively provided with no choice but to move to a unit that was in a state of disrepair. Again, the applicant does not appear to dispute that it was appropriate for them to downsize in light of their family situation. While the Reply baldly asserts that there were other vacant units, the applicant and the claimant have not referred to any potential evidence available to them, that any other appropriate smaller unit in a better state of repair could have been made available to them. In the circumstances, I am not satisfied that the applicant and claimant have established a reasonable prospect of success with respect to any allegation that they were subjected to discrimination on the grounds alleged in terms of being required to move to the smaller unit in question.

20More particularly, in his reconsideration request, the applicant addresses the Tribunal’s statement that the applicant and the claimant did not refer to any potential evidence available to them that any other appropriate smaller unit in a better state of repair could have been made available to them. The applicant refers to references made in his Reply that the respondent incurred financial “vacancy losses” in 2008, 2009 and 2010. The applicant also attached to his Request for Reconsideration financial statements for years ending March 31, 2008, 2009 and 2011, showing “vacancy losses”. The applicant also submits that the unit that was given to him and Ms. Hawley had been vacant for 17 months before it was offered to them.

21The applicant has not explained why the above financial information could not reasonably have been obtained earlier. In any event, while the information provided by the applicant suggests that the respondent had vacancies, it does not establish that any other appropriate smaller unit in a better state of repair could have been made available to the applicant and Ms. Hawley.

22Again, I find that the applicant has not referred to any new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier, nor has the applicant established that any of the other threshold criteria justifying reconsideration have been met with respect to the Tribunal’s findings at paragraph 52 of the Interim Decision.

23With respect to the criterion relied upon in the applicant’s Request for Reconsideration, I find that the applicant has not identified any new facts or evidence that could potentially be determinative of the case that could not reasonably have been obtained earlier. I also find that the applicant has not established that any of the other threshold criteria justifying reconsideration have been met.

24In 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 10th day of July, 2013.

“Signed by”

Brian Eyolfson

Vice-chair```