Arsenault v. Sunter, 2014 HRTO 1447

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pierre Arsenault

Applicant

-and-

Adrian Sunter

Respondent

A N D B E T W E E N:

Pierre Arsenault

Applicant

-and-

City of Ottawa

Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: September 26, 2014

Citation: 2014 HRTO 1447

Indexed as: Arsenault v. Sunter

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2014 HRTO 499, dated April 9, 2014, which dismissed these two Applications following a summary hearing.

2On May 9, 2014, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The 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).

5The 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.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and 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.

8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

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.

9As a result, I need to determine whether the material filed by the applicant in support of his request for reconsideration satisfies any of the criteria set out in Rule 26.5 upon which he relies. The applicant relies upon the criteria identified in Rule 26.5(c).

10The applicant first disputes the adjudicator’s determination that the actions of the respondent in the course of litigation before the Landlord and Tenant Board (“LTB”) cannot constitute reprisal. The applicant submits that this determination is in conflict with this Tribunal’s decision in Devoe v. Haran, 2012 HRTO 1507, in which reference is made to the obligation of the LTB to interpret and apply the Code. The Decision in the instant case is not in conflict with Devoe v. Haran, as they address two entirely different matters. The determination made by the adjudicator in the instant case did not address the LTB’s obligation to interpret and apply the Code, but rather found that the respondents’ actions in the course of the LTB proceeding could not amount to reprisal in the context of the Code.

11The applicant next relies upon an alleged admission by the respondent Sunter that he discriminated against the applicant because of his age. Whether or not that is the case, I note that the Applications as filed allege discrimination because of disability, and not age discrimination. With regard to the allegation of reprisal, I note that the timing of the respondent Sunter’s actions in relation to the LTB proceedings was addressed by the adjudicator at para. 24 of her Decision. There is nothing in the applicant’s Reconsideration Request that would support any change to that analysis.

12The applicant disputes the adjudicator’s analysis regarding the condition of the walkway to his apartment. In his Reconsideration Request, the applicant makes reference to “sheer ice conditions”, the lack of salt or sand on the walkway, the fact that another tenant fell and hurt his back, and the fact that the applicant slipped and almost fell. It is not this Tribunal’s jurisdiction under the Code to address the condition, safe or otherwise, of a walkway. Rather, this Tribunal’s jurisdiction under the Code is limited to determining whether an applicant experienced discrimination or harassment on the basis of one or more of the protected grounds. The point being made by the adjudicator in her Decision is not about the condition of the walkway, but rather about the lack of any link or connection between the condition of the walkway and the applicant’s disability. I see no reason to change the adjudicator’s analysis in this regard.

13The applicant next relies upon this Tribunal’s decision in Wozenilek v. Guelph (City), 2010 HRTO 1652, to submit that, because he could not use the walkway or had extreme difficulty using the walkway, this led to “a physical barrier denying access to goods, services or facilities”. Whether or not that is the case, in order to amount to discrimination contrary to the Code, any such physical barrier would have to be “because of” one of the protected grounds. The Wozenilek case provides a good illustration of this. The applicant in that case is required to use a wheelchair because of his disability. When there is a physical barrier preventing him from gaining access to a service or facility, that physical barrier is directly related to the fact that he needs to use a wheelchair and hence his disability. The problem with the applicant’s allegation in the instant case about the walkway is that the adjudicator was not satisfied that he had presented a sufficient basis to establish that any barrier caused by the condition of the walkway was linked or connected to his disability. As stated above, I see no reason to depart from this analysis.

14Once again in relation to the reprisal allegation, the applicant relies upon this Tribunal’s decision in Cunanan v. Boolean Developments Limited, 2003 HRTO 17, which stands for the principle that a formal complaint under the Code is not required to establish reprisal. Nothing in the adjudicator’s Decision is in conflict with this principle. Clearly, the eviction of a tenant would amount to an “adverse consequence”. That is not the point. The point being addressed in the Decision is whether the applicant has satisfied the Tribunal that there is a sufficient basis to make a link or connection between his eviction and the applicant’s assertion of his rights under the Code. As noted above, this point is addressed in detail by the adjudicator at para. 24 of her Decision, and I see no reason to change her analysis.

15With regard to his Application against the City of Ottawa, the applicant takes issue with the adjudicator’s analysis of his allegations against the City. The applicant submits that the City By-Law Officer ignored the fact that he was a person with a disability and did not enforce the laws that the City had put in place. The problem with the applicant’s submission is, once again, that he fails to address or establish any link or connection between the alleged actions of the By-Law Officer and his disability. What the adjudicator was looking for at the summary hearing was the basis upon which the applicant was alleging that the By-Law Officer failed to enforce any laws “because of” the applicant’s disability. The basis for this link or connection is what the applicant failed to satisfy at the summary hearing, and he has provided no further basis to support any such link or connection in his Reconsideration Request. The mere fact that the applicant is a person with a disability and sought to get the By-Law Officer to enforce a law is not a sufficient basis to ground an alleged violation of the Code. There needs to be a basis to support that any act or omission of the By-Law Officer was “because of” the applicant’s disability.

16The applicant relies on the decision of the Superior Court in Cerilli v. Ottawa (City), 2006 CanLII 40785 (ON SC), which found the City to be grossly negligent for its failure to properly clear ice in order to save costs. This decision is not about discrimination because of disability under the Code, but rather about the tort of negligence in the context of a pedestrian slip and fall case. It is not relevant to the Tribunal’s analysis.

17Accordingly, I find that the applicant has not satisfied me that the adjudicator’s Decision in the instant case is in conflict with established jurisprudence or Tribunal procedure.

18For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.