Pennington v. Peterborough (City), 2013 HRTO 127

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Pennington

Applicant

-and-

The Corporation of the City of Peterborough and Director, Ontario Works

Respondents

RECONSIDERATION Decision

Adjudicator: Michelle Flaherty
Date: January 24, 2013 Citation: 2013 HRTO 127 Indexed as: Pennington v. Peterborough (City)

WRITTEN SUBMISSIONS

Paul Pennington, Applicant ) Self-represented

Director, Ontario Works, Respondent ) Micheal Dunn, Counsel and Megan ) Howatt, Student-at-law

The Corporation of the City of ) Alan Barber, Counsel Peterborough )

INTRODUCTION

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”), alleging discrimination in the provision of goods, services, and facilities based on disability.

2The applicant is a disabled person in receipt of income support under the Ontario Disability Support Program Act, 1997, SO 1997, c 25, Sch B (“ODSPA”). I understand that his disabilities prevent him from working or seeking work.

3The applicant argued that he has been discriminated against because the respondents denied him discretionary benefits to cover the costs of dentures. They did so because he did not meet the requirements under the Ontario Works Act, S.O. 1997, ch.25 (“OWA”), of being “employable”. The applicant submitted that the decision to exclude all unemployable individuals from discretionary benefits related to dental cost is discriminatory and excludes a large segment of disabled individuals.

4The respondents denied the allegations of discrimination. They also argue that the Application was moot because the applicant ultimately did receive funding for dentures and because the policies of the Corporation of the City of Peterborough (“Peterborough”) have now been amended. The discretionary benefits to cover dental costs are now available to recipients of social assistance, regardless of employability.

5I conducted a hearing in this matter by telephone conference call. At the hearing, the representatives of the Director, Ontario Works (“Director”) stated that they wished to rely on the Tribunal’s recent decision in Hansen v. Workplace Safety and Insurance Board, 2012 HRTO 608 (“Hansen”), a case that they had not provided to the other parties in advance of the hearing.

6At the hearing, I directed that all parties have an opportunity to provide written submissions regarding Hansen. I also directed that the applicant provide additional written submissions regarding allegations of prejudice because of the delay in funding his dentures. On April 20, 2012, I issued a Case Assessment Direction confirming these directions. On September 28, 2012, I issued a Decision dismissing the Application because the issues it raised are moot. In the Decision, I indicated that, although he had been directed to do so, the applicant had not filed written submissions following the hearing.

7The applicant subsequently filed a Request for Reconsideration (“Request”) stating that he had attempted to email written submissions to the Tribunal and the other parties, although the Tribunal and the other parties did not receive the applicant’s email. The applicant’s Request is based on the Tribunal’s failure to consider his written submissions. He argues that the Decision is incorrect and asks that a full rehearing be scheduled before a different member of the Tribunal.

8The Associate Chair of the Tribunal has assigned me to deal with all aspects of the Reconsideration Request, including whether a full rehearing is appropriate and whether the matter ought to be dealt with by a different adjudicator.

9For the reasons that follow, I find no basis to order a re-hearing of this matter or to direct that it be dealt with by a different adjudicator. It is appropriate to reconsider the Decision in order to consider the applicant’s written submissions. However, having considered these submissions, I find that the Decision should be maintained.

REQUEST FOR RECONSIDERATION

10Pursuant 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.

11Reconsideration 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.

12In a CAD dated October 9, 2012, the Tribunal invited the respondents to respond to the Request and to give their positions on whether, if the Tribunal decides that the decision should be reconsidered, a full rehearing should be held or the decision should be reconsidered by me in writing in light of the applicant’s submissions of May 13, 2012. The applicant was invited to reply to those submissions.

13The respondents have filed material in response to the October 9, 2012 CAD. The City of Peterborough argues that neither a reconsideration nor a re-hearing is necessary and that the Decision is correct. Counsel for the Director, Ontario has filed submissions also arguing that a reconsideration is unnecessary. He argues that the applicant’s May 14 submissions do not identify any way in which the applicant was prejudiced by any delay in receiving funding and that, even had the Decision considered the applicant’s May 14 submissions, the same conclusion would have been reached.

14The applicant has filed reply submissions in which he argues that it would be deeply unjust for the Tribunal not to consider his written submissions of May 14, 2012. He also requests a full re-hearing of the matter by a different adjudicator, arguing that my Decision is incorrect and goes beyond the scope of what ought to have been decided. He feels he will not receive a fair evaluation unless a different adjudicator is assigned the reconsideration because it is human nature to deny having made a mistake.

ANALYSIS

Should the Request be determined by a different adjudicator?

15I turn first to the applicant’s argument that a different adjudicator should determine the Request. The only argument the applicant has advanced in support of this position is that there would be a reasonable apprehension of bias if I were to reconsider my own Decision. He states that human nature creates a tendency to deny making an error.

16This is not a basis for the matter to be dealt with by a different adjudicator. In its recent decision in Landau v. Ontario (Minister of Finance), 2012 ONSC 6926, Divisional Court rejected just such an argument. At paras. 16 and 17, the Court wrote:

The mere fact that an adjudicator determines a request for reconsideration of his or her own decision does not, in and of itself, create a reasonable apprehension of bias in the context of the legislation.

A reconsideration is not an appeal or a hearing de novo. Most importantly perhaps, there is no right to have a decision reconsidered. Under s. 45.7(2) of the Code “the Tribunal may reconsider its decision” but it is not bound to do so. The original decision maker may be in the best position to know whether a reconsideration request raises new issues or submissions. In this case, the applicant has not established anything more than the fact that the Associate Chair was reviewing his own decision. By itself that does not constitute a breach of procedural fairness under the legislative scheme. We would therefore not give effect to this ground of appeal.

For the reasons expressed by the Divisional Court, the applicant’s request that the Reconsideration be dealt with by a different adjudicator is denied.

Should the Request be granted?

17There is a clear rationale for and obvious benefit to the Tribunal having the power to reconsider its own decisions. As the Tribunal explained in Sigrist and Carson v. London District Catholic School Board et. al., 2008 HRTO 34, the legitimacy of the Tribunal is enhanced by its ability and willingness to undo an unfair result or process, or correct a wrong. See also Garrie v. Janus Joan Inc., 2012 HRTO 1955.

18Importantly, however, the Tribunal must exercise this reconsideration power with care. As the Tribunal explained in Taranco v. Michedes, 2009 HRTO 1439 at para. 15, the public interest in the finality of Tribunal decisions is important. It ensures that parties can consider Tribunal decisions final when they are made and that the Tribunal’s resources are used wisely and in a way that fulfills its mandate under the Code. It also ensures that the Tribunal’s decisions are not in a constant state of flux and can serve as an effective guide for members of the community as to their obligations under the Code.

19In the circumstances, I am satisfied that the Decision should be reconsidered pursuant to Rule 26.1(d): other factors exist that outweigh the public interest in the finality of the decision. Having reviewed the supporting evidence provided by the applicant, I accept that the applicant attempted to email his submissions to the Tribunal and respondents but, through no fault of his own, the delivery failed and the submissions were not received. In the circumstances, the applicant is entitled to have his submissions considered as a matter of procedural fairness and it would not be in the interest of the administration of justice for the Decision to stand without regard for the applicant’s submissions. Accordingly I grant the Request for Reconsideration.

Scope and Procedure for Reconsideration

20The applicant submitted that (should I grant the Request) the matter should then proceed to a full and de novo rehearing. The thrust of his argument is that this is necessary because my Decision is incorrect since I failed to consider his written submissions.

21In my view, the most appropriate way to address this issue not to conduct a full de novo rehearing, but to now consider those written submissions and determine if my Decision should be varied in any way in light of those submissions. The additional submissions at issue are in writing and were always intended to be written submissions. The Tribunal does not need to hold a further hearing in order to consider written submissions.

22For these reasons, I find that there is no basis to order a full re-hearing of this matter.

Should the Decision be varied?

23Following the telephone conference hearing, I invited additional submissions from the applicant regarding two issues: (1) any prejudice he suffered because of the delay in receiving funding; and (2) the Tribunal’s decision in Hansen. The applicant’s May 14, 2012, submissions go well beyond the scope of the submissions I invited. In addition to addressing the two points identified above, the applicant reiterates and reformulates many of the arguments he made at the hearing and in other documents filed with the Tribunal.

24I have reviewed the applicant’s submissions, and with the exception of the issues of prejudice and the application of Hansen, I conclude that they re-iterate submissions made earlier in the proceeding and were already addressed in my Decision.

Hansen

25In his submissions, the applicant disputes the Director’s argument that Hansen, above, should be read to mean that the doctrine of mootness applies even if an applicant is seeking additional remedies.

26In my Decision (at paras. 34 - 36), I rejected the Director’s interpretation of Hansen. I held that Hansen concerned the application of section 45.1 of the Code and that the possibility of further remedies, while immaterial to the application of section 45.1, is a relevant consideration under the doctrine of mootness.

27Thus, the applicant’s written submissions regarding Hansen do not provide a basis for revisiting the conclusions reached in the Decision.

Prejudice

28Although he was specifically directed to do so at the hearing and in a CAD dated April 20, 2012, the applicant did not point to any allegations of prejudice because of delay contained in his Application. Rather, these allegations appear to have been raised for the first time at the hearing in response to the mootness issues raised by the respondents.

29At the hearing, the applicant stated that, while he had received his dentures by the time he underwent surgery, he was prejudiced by the initial denial of benefits and the delay this occasioned. While the surgery proceeded as scheduled, the applicant states that he did not have an opportunity to undergo a proper fitting prior to surgery and that this caused a number of ongoing problems with fitting post-surgery.

30In regards to the alleged, the applicant writes:

Please try to be empathic and understand that all the fighting and letter writing I had to deal with because of Peterborough’s actions, extremely affected me. The denture did not fit at all and the denturist in hindsight was right. He would have gone a different route where the dentures were only partially made and adjusted and fitted properly after surgery and healing. ODSP [Ontario Disability Support Program] refused to wait because they were in fact sneaking the authorization through the back door. ODSP was rushing through something they should not have had to do and were rushing it because I should have never received dentures from them. More so, Peterborough should have authorized them in July and this problem would have been avoided.... So I waited as long as I could for Peterborough to do the right thing and then ended any obligations with them by mid-august when it was obvious that they were not going to help me. Time was running out. I panicked and took ODSP up on their offer and in no way does that stop or moot what Peterborough did to me.

31Later in his submissions, he goes on to state:

I strongly believe the timeline of events (letter writings and dealing with Peterborough OW) show that I did everything possible to ask for accommodations and to secure dentures in time of surgery from Peterborough. I waited to the very last minute and only when it was crystal clear that Peterborough was not going to help did I accept funding from another source. Solely because of the discriminatory act did I run out of time and was forced to accept dentures that may or may not have fit. As it turned out the denture were completely useless and have not be worn since my surgery date (pg 172-173 #30). Is this the denturists fault? NO. Is this ODSP’s fault? Perhaps a little! They should have allowed the denturist and more so, myself, the choice to wait for funding approval and they did not.

32Even accepting (without finding) that the applicant was prejudiced because of the timing of the funding, it is not clear to me that either of the respondents are at the root of this prejudice. Although he argues that the City of Peterborough should have approved his request for dentures more expeditiously, the applicant’s other concern appears to be that ODSP rushed the matter. He argues that the problem of ill-fitting dentures would have been avoided had either (a) Peterborough approved the spending sooner or (b) ODSP had allowed him to wait before undergoing surgery.

33It is not clear to me how the applicant could, at the same time, be prejudiced by Peterborough’s delay and ODSP’s refusal to delay. However, even if I assume (without finding) that both of these are potential sources of prejudice to the applicant, I find that the allegations of prejudice because of delay are not a basis for proceeding with the Application.

34As I indicated in my Decision, I accept that the possibility of further remedies is a relevant consideration under the doctrine of mootness. However, the possibility of further remedies must be in relation to one of the respondents in the proceeding. I understand the applicant’s submissions to state that any prejudice from Peterborough’s delay would have been rectified had ODSP (the organization that ultimately funded the dentures) proceeded differently. In these circumstances, I find that the allegations of prejudice because of Peterborough’s delay are too remote and speculative to support a conclusion that the Application raises a live issue for the Tribunal to decide.

35Again, I accept that the delay and the multiple steps the applicant had to face caused him considerable frustration. However, I do not think these allegations help the applicant establish that there is a live issue between the parties.

CONCLUSION

36For all of these reasons, it is appropriate to reconsider the Decision because it was rendered without consideration for the applicant’s written submissions. However, based on the material now before me, I find that there is no basis to revisit the conclusions reached in the Decision.