Liu v. Metropolitan Toronto Condominium Corporation No. 541, 2014 HRTO 1077

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin Liu and Judith Zhang

Applicants

-and-

Metropolitan Toronto Condominium Corporation No. 541 and DEL Property Management Inc.

Respondents

RECONSIDERATION DECISION

Adjudicator: Naomi Overend

Date: July 23, 2014

Citation: 2014 HRTO 1077

Indexed as: Liu v. Metropolitan Toronto Condominium Corporation No. 541

WRITTEN SUBMISSIONS

Kevin Liu and Judith Zhang, Applicants

Self-represented

MTCC 541 and DEL Property Management Inc., Respondents

Antoni Casalinuovo, Counsel

1The applicants filed a Request for Reconsideration of the Tribunal’s Decision, 2014 HRTO 292, pursuant to section 45.7 of the Ontario Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents were asked to file a Response to the Request for Reconsideration, which they did.

2In the Decision under reconsideration, the Tribunal dismissed the applicants’ Application for Contravention of Settlement on the basis that it had no reasonable prospect of success, and characterized the alleged incident as, at best, a “technical” or “de minimus” breach of the settlement reached between the parties.

3For the reasons that follow, the Request is granted. Although the Tribunal stated it was relying on the applicants’ factual allegations in determining the issue of whether the matter had no reasonable prospect of success, it appeared to not consider all of the applicants’ allegations. Moreover, the Tribunal also relied on factual assertions made by the respondents, to which the applicants did not agree. The Tribunal did not hear evidence at this proceeding and so was in no position to resolve the competing factual allegations.

ANALYSIS

4Section 45.7 of the Code provides the Tribunal with explicit authority to reconsider its decisions:

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.

5Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. Rule 26 reads, in part, as follows:

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 and orders.

6The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

The rules for reconsideration are found in Rule 26 of the Rules of Procedure. A request for reconsideration will only be granted if the request meets one of the requirements in Rule 26.5.

7The Request before me cites Rules 26.5(a) through (d) as the basis for granting reconsideration.

Factual Overview

8Briefly, the applicants filed earlier Applications with this Tribunal, which were settled in early 2012 by way of undated, but executed, Minutes of Settlement. The term of that settlement relevant to the current Application, requires the respondents to change the recreational facilities rules to permit children under the age of 16 to use the shared recreational facilities of the condominium, including the billiard room, when supervised by a parent or other adult.

9The applicants alleges that on February 13, 2013 (approximately a year after the settlement) Ms. Zhang and their then nine-year old son were in the billiard room with two friends, when they were approached by a security guard who challenged their right to be there. Ms. Zhang advised the security guard that the rule had been changed, and eventually went to her unit and came back to show the guard documents which set out the change. At that point, the guard then asked her for photo identification.

10The Response from the respondents sets out a different version of facts with respect to the incident, including a denial that the guard denied access to Ms. Zhang and her son to the shared facility.

Was the Process Unfair to the Applicant?

11By way of Case Assessment Direction, dated July 22, 2013, the Tribunal advised the parties that it would proceed by way of a half-day conference call, at which time it would be hearing evidence and submissions on the merits of the Contravention of Settlement Application. It also advised that on that call, it would hear argument on the respondent’s Request to add the security company, which was not a party to the original Application, as a respondent to the Contravention of Settlement Application.

12This hearing took place on January 7, 2014. The preliminary issue concerning adding the respondent was not addressed at that hearing. Moreover, the Tribunal did not hear evidence on the merits of the Application. In para. 4 of the Decision, the Tribunal notes:

…it was agreed that an in-person hearing was necessary to canvass all issues, hear all necessary evidence and/or determine matters of credibility, particularly where the need for a translator on behalf of the applicants had been identified.

13Instead, the Tribunal directed that it would conduct a summary hearing at the conference call that day. The decision states that the parties understood that the outcome of that summary hearing would determine whether it was necessary to hold the hearing on the merits of whether there was a contravention of settlement (and hear argument on the preliminary issue of the request to add a respondent). It states also, that none of the parties objected to this process.

14It is clear that the parties were not given advance notice that the conference call hearing might be converted to a summary hearing. The applicants state in this Reconsideration Request that they did not understand the nature of this proceeding and, more specifically, that they did not understand that the process could lead to the dismissal of their Application prior to them being allowed to call evidence.

15The Tribunal can dismiss an application as having no reasonable prospect of success on the basis that the facts as alleged do not constitute conduct prohibited by the Code. As noted by the Tribunal in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, this does not have to take place at a specially designated summary hearing, but can also take place during a hearing on the merits.

16The applicants have suggested that do so without notice to them was unfair and is reason alone to set aside the dismissal. I do not agree with this submission. The summary hearing took place on the day scheduled for the full hearing on the merits of the Application. The Tribunal was entitled to presume that the parties were fully prepared to not only call evidence that day, but also address any concerns about whether their allegations were actual violations of the Code.

Did the Tribunal Rely Solely on the Applicants’ Version of Events?

17In reaching the conclusion that the alleged breach was, at its highest, a de minimus or technical breach, the Tribunal relied on the following factual findings, as set out in para. 14 of the Decision:

• The security guard advised Ms. Zhang on the evening in question that children were not allowed in the room, which he reiterated even upon being told that the rule had changed;
• Ms. Zhang then went to her unit and 10 or 15 minutes later returned with a letter dated February 29, 2012, which had been sent to the unit holders, confirming the rule changes;
• There was an “additional conversation about the need for identification badges by users of the recreational facilities;”
• Children were never prohibited from entering the billiard room; and
• The security guard subsequently apologized for his actions.

18Although the decision states that in reaching these conclusions, the Tribunal relied upon the applicants’ version of events, it would appear that this is not so. The applicants point out in their Reconsideration Request that the factual conclusions set out above are either at odds with their position as set out in their Contravention of Settlement Application or disregard important allegations. In their pleadings and written correspondence, the applicants alleges that:

• Ms. Zhang did not receive an acknowledgement from the security guard that he had been mistaken after she returned with the materials showing him the policy change; instead, he challenged her further on the lack of identity badges;
• The effect of the security guard’s actions that night was to prohibit children from entering the billiard room;
• Their son has refused to go back to the facilities because of the “harassment” that took place that night.
• They attempted to address this issue by writing letters to the security guard’s supervisor, the lawyer who represented the respondents at the mediation and the board of the condominium before filing this Application, but either received no response or nothing of any substance addressing the issue or apologizing for the incident;
• The Response to the Contravention of Settlement Application, dated April 24, 2013, contains a contradictory version of events, which blames the applicants’ family for the incident;
• At no point did the applicants receive an apology from the security guard, although they became aware that he wrote a letter of apology for unspecified behaviour to the management company, because that letter was included in the April 24, 2013 Response;

19The unfairness to the applicants arose when the Tribunal, which had heard no evidence, relied on factual conclusions with which the applicants disagreed. This unfairness was compounded when the Tribunal failed to consider all of the applicants’ allegations of fact when coming to the conclusion that the Application was, at its highest, a de minimus breach of the Code.

20The public interest in the finality of Tribunal decisions is outweighed in this case by the unfairness to the applicants. As the Tribunal explained in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the legitimacy of the Tribunal is related to its ability and willingness to undo an unfair result or process, or correct a wrong. In this case, reconsideration will correct an unfair result, where the applicants’ Application has been dismissed on the basis of facts they did not have the opportunity to challenge or augment.

Order

21For the reasons set out above, the Tribunal grants the request to reconsider its earlier Decision to dismiss this Application. The Tribunal will schedule a one-day, in-person hearing at the earliest possible date to hear evidence and argument on the merits of this Application. The preliminary issue concerning adding a respondent will be addressed at that hearing, unless otherwise directed by the Tribunal.