HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
A.B.
Applicant
-and-
Havcare Investments Inc. and
Carolyn Goodman (also known as Marian Linton and Carolyn Krebs)
Respondents
RECONSIDERATION DECISION
Adjudicator: Alison Renton
Indexed as: A.B. v. Havcare Investments Inc.
WRITTEN SUBMISSIONS
Havcare Investments Inc. and Carolyn Goodman (also known as Marian Linton and Carolyn Krebs), Respondent
Carolyn Goodman, Representative
1In a Decision dated July 24, 2014, 2014 HRTO 1087 (“the Decision”), the Tribunal upheld the Application of an applicant. The applicant, who was 17 years of age at the time her Application was filed and withdrawn from parental control, alleged that the respondents discriminated against her on the basis of accommodation (housing) because of her age. The Tribunal ordered a number of remedies against the respondents for the violation of the Code. The hearing took place over 8.5 days between November 7, 2012, and September 10, 2013 (the Decision incorrectly said 7.5 days), with mediation-adjudication taking place on two separate dates, not one as stated in para. 17 of the Decision. The applicant filed additional submissions after the hearing, in reply to the respondents’ final submissions.
2The respondent Goodman, on her own behalf and as representative for Havcare Investments Inc., filed a Request for Reconsideration (“the Request”). Rule 26.4 of the Tribunal’s Rules of Procedure (“the Rules”) does not require a party who has been served with a Request to file a response to the Request unless directed to do so by the Tribunal. The Tribunal has not directed the applicant to file a response to the Request.
3For the reasons set out below, the respondents’ Request is denied.
The Respondents’ Submissions
4The respondents submit that their Request should be granted on the principle of fairness. They cite a number of examples which, they claim, created unfairness during the hearing. This includes the following allegations:
a. The respondents not being permitted to cross-examine the applicant about her homelessness, her pregnancy, or her abusive boyfriend;
b. The respondents not being permitted to enter new evidence, new witnesses, or new documentation during the hearing;
c. The respondents not receiving as much time during final submissions as the applicant’s counsel;
d. The applicant’s counsel was permitted to submit new information, including pamphlets, folders, magazines, and articles during her final submissions;
e. The applicant’s counsel was permitted to make written submissions after the hearing, when the respondents were not permitted to even complete their final submissions;
f. The adjudicator also acted as mediator, which is not legal, and heard confidential information which was communicated to the applicant and the respondents;
g. The applicant received Interim Decisions that the respondents cannot fight; and,
h. The applicant had a lawyer, whereas the respondents did not.
5The respondents submit that there were also a number of significant errors in the Decision. These included:
Ms. St. John not being an employee of the corporate respondent, but, instead, being an independent contractor;
The Decision stating that there was a policy by the respondents not to rent to those under 17 years of age;
Ms. St. John’s evidence being that the landlord did not like to rent to 17 year olds, rather than the landlord would not rent to 17 year olds;
There was no proof that the applicant had withdrawn from parental control, apart from the oral evidence;
There was an absence of evidence to support a conclusion that the applicant had long term problems as a result of not receiving a unit in the corporate respondent’s building; and,
There was an absence of evidence about the applicant’s boyfriend being abusive towards her.
6Finally, the respondents submit that the monetary award of $10,000.00 is patently unreasonable as it represents 14 months of rent and is punitive to the respondents. They submit that the applicant must take some responsibility for being homeless, claiming that the evidence indicated that the applicant did not keep in contact with her housing worker.
7The respondents request that the Tribunal order a new hearing, or reduce the monetary award of $10,000 that they were ordered to pay in the Decision, or allow the respondents to introduce new witnesses and evidence.
Analysis
8Reconsideration is not an appeal. Rule 26.5 of the Tribunal’s Rules of Procedure sets out the limited circumstances in which reconsideration may be granted:
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.
9It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which states in part:
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.
Examples of situations where the HRTO has refused a request for reconsideration are where:
the request asks for review of an interim decision which does not finally decide the party’s rights or interests;
the request repeats arguments the party has made at the hearing or in written submissions;
a party disagrees with and wishes to challenge a finding of fact, including findings made about the credibility of witnesses;
a party wishes to raise new arguments that were not made, but could have been made at the hearing or in written submissions;
a party received notice that an application could be dismissed as abandoned if steps were not taken, but did not follow the Tribunal’s directions by the deadline.
Examples of situations where the HRTO has reconsidered its decision are:
where a party, through no fault of its own, did not receive notice of a hearing or request for submissions; or
where exceptional factors exist that outweigh the public interest in the finality of decisions including inconsistencies in the HRTO’s case law.
10As 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.
11The respondents are relying upon Rules 26.5(a) and (e); however, I do not see that Rule 26.5(a) is applicable. The respondents have not presented any new facts or evidence that they did not present or attempt to present at the hearing, which would involve a determination of Rule 26.5(a). Instead, I see that the Request falls under Rule 26.5(d), that is, whether other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
12I will address the respondents’ allegations in three categories: fairness, errors in the Decision, and the monetary remedy.
Fairness
Not being permitted to cross-examine on the applicant’s homelessness, pregnancy and abusive boyfriend
The respondents’ submissions
13The respondents submit that they were prohibited from asking relevant questions to the applicant in her cross-examination about her homelessness, her pregnancy, and her alleged abusive boyfriend, such that their rights were denied.
Analysis
14The respondents’ assertions that they were prohibited from asking relevant questions to the applicant during her cross-examination about her homelessness, her pregnancy, and her alleged abusive boyfriend are factually incorrect.
15I have reviewed the notes I took during the hearing and they indicate that during the applicant’s cross-examination on November 7, 2012, conducted at that point by Ms. Goodman under the assumed names of Linton/Krebs, Ms. Goodman asked her a number of questions about each of those issues. In fact, Ms. Goodman asked questions such as, “Can I suggest that you were very upset in January [2011] because you were pregnant and your boyfriend was abusive?” to which the applicant responded “yes”. Furthermore, Ms. Goodman cross-examined the applicant about the each of the factual findings which are set out in paras. 91 and 108 of the Decision.
16There were objections to some questions asked in relation to these different issues, including different monetary denominations that Ms. Goodman suggested during the applicant’s cross-examination that she could have withdrawn and given to her boyfriend, and later criminal charges that her boyfriend received, which were either not pursued or ruled to be not relevant. When Ms. Goodman asked the applicant about any telephone receipts she had after the applicant had testified in cross-examination that her boyfriend had broken one of her telephones, the applicant’s counsel confirmed that no out-of-pocket expenses were being claimed, such that the line of questioning became unnecessary.
17Given that the respondents cross-examined the applicant on the issues of her homelessness, her pregnancy, and her allegedly abusive boyfriend, there is no factual basis to the allegation that the respondents were limited in their cross-examination – except as noted above in relation to issues that were not relevant. Accordingly this aspect of the respondents’ Request is dismissed.
Not permitted to enter new evidence, witnesses or documentation during the hearing
The respondents’ submissions
18The respondents submit that they were not permitted to enter new evidence, new witnesses, new documentation, and not allowed to have a witness for the respondents to add more information. No further submissions were made about this issue.
Analysis
19These issues are not new and were dealt with extensively in the Decision. My notes indicate that on the second day of hearing, February 12, 2013, some three months after the first day of hearing, at approximately 4:30 p.m., the respondents produced, for the first time, documentation pertaining to landlord and tenant matters involving other tenants. These documents were subsequently marked as exhibits 5 and 6 during the cross-examination of Ms. Goodman.
20By correspondence dated June 5, 2013, the Tribunal sent the parties a Notice of Hearing setting out continuation dates of July 23, 24, and September 10, 2013. On July 24, 2013, another day was required so that the proposed tenant could testify. After much difficulty from the respondents in agreeing to a date on which the proposed tenant could testify (see paras. 62 and 63 of the Decision), the afternoon of September 9, 2013 was selected on consent of the parties, with a start time of 1:30 p.m. given the respondents’ further restriction that she could not attend in the morning. This was confirmed in another Notice of Hearing dated July 24, 2013. Despite this, Ms. Goodman attended late on September 9, 2013.
21On September 6, 2013, the business day before the September 9, 2013 hearing date, the respondents faxed to the Tribunal new documentation from a ledger purporting to show rental information about the units in the apartment building from January and February 2011 and advised that a new witness, Ms. Goodman’s husband Mr. Krebs, would testify about these records. As it did not appear that this information had been sent to the applicant’s counsel, and given that the hearing day was the next business day, it was forwarded by the Tribunal.
22On September 9, 2013, after the purported tenant testified, and after the Tribunal made photocopies of more new documentation upon which the respondents intended to rely but had not previously submitted, the Tribunal heard submissions from the parties about Mr. Krebs testifying as well as the admissibility of the documentation that the respondents now wanted to admit. Those submissions were heard from approximately 3:15 until 4:15 p.m. After a short break, the Tribunal issued an oral ruling denying the respondents the ability to have Mr. Krebs or Ms. Goodman testify about the new documentation and stating that reasons for this determination would be provided in the Decision. These reasons were set out in paras. 37 to 41 of the Decision. Paras. 64 to 66 and 82 to 84 of the Decision also address this.
23I do not see any reason to depart from the determinations I already made about the new documentation and either Mr. Krebs or Ms. Goodman testifying about it as reflected in the Decision. Based upon this, I do not find that the Request falls within Rule 26.4(d) of the Tribunal’s Rules and it is dismissed on this basis.
The applicant’s counsel received more time for final submissions than the time given to the respondents
The respondents’ submissions
24The respondents submit that it was unfair to allow the applicant’s lawyer more time for her final submissions than the time given to the respondents for their final submissions. They submit that the applicant’s lawyer spent the full morning making submissions and was not rushed or stopped, whereas the respondents were not allowed to have the full afternoon for their submissions. The respondents submit that their submissions were cut short because the adjudicator would not allow her any more time that day or any day to conclude her submissions.
25Furthermore, the respondents allege that much of the time during their afternoon submissions were used by the adjudicator to decide if the respondents’ proposed new evidence and proposed new witness would be allowed into the evidence or to testify. They allege that after the adjudicator made her decision with respect to these issues there was insufficient time for the respondents to complete their submissions.
Analysis
26The respondents’ assertion that most of the time during their afternoon submissions, on the final day of the hearing, was used by the adjudicator to decide the issues of the respondents’ proposed new evidence and witness is not true.
27The hearing on September 9, 2013 commenced, as noted above, at 1:30 p.m. and the proposed tenant testified. After his evidence concluded, the parties made submissions about the admissibility of the new documentation and about Mr. Krebs and/or Ms. Goodman testifying about that new documentation from approximately 3:15 p.m. until 4:15 p.m. After a brief adjournment, at approximately 4:30 p.m. I issued an oral ruling stating, “I am not prepared to have the documentation entered at this stage or have Mr. Krebs or Ms. Goodman testify about the documentation and reasons will be provided in the decision”. I further stated that the hearing would resume the next day, September 10, 2013, and I would hear final submissions at that time.
28September 10, 2013, the last day of hearing, was used exclusively for final submissions.
29It is true that the applicant’s counsel had a half-day to present her final submissions. My notes indicate that Ms. Goodman, on her own behalf and on behalf of Havcare Investments Inc., arrived late on September 10, 2013, so that the hearing commenced at 9:50 a.m. rather than the scheduled 9:30 a.m. The applicant’s counsel presented her final submissions from 9:50 a.m. until 1:23 p.m. with a break from 11:20 a.m. to 11:40 a.m.
30However, the respondents had approximately a half-day to present their final submissions. The respondents’ final submissions started shortly after 2:00 p.m. until approximately 5:00 p.m. without a break. No break was requested by either party. Ms. Goodman attempted to testify and submit new evidence during her final submissions (for example, relating to superintendents that she had in August 2013 leaving), and I told her that she could not present new evidence. Ms. Goodman was repetitive and at times somewhat disjointed during parts of her final submissions; nonetheless she was allowed to proceed. There were some objections by the applicant’s counsel about Ms. Goodman allegedly misrepresenting the evidence, to which I stated that I would review that objection when I reviewed my notes, but no other interruptions. The respondents changed their position during final submissions about the applicant attending 500 Dawes Road in early January 2011 as reflected in para. 69 of the Decision.
31The respondents concluded their final submissions at 5:00 p.m. after responding to questions from the Tribunal about their position on the remedies the applicant was seeking. The respondents did not indicate that they had further submissions to make.
32Accordingly, as it turns out, the respondents had almost the same amount of time to make their final submissions as did the applicant. Regardless of the length of time, the fact is that the respondents continued with their submissions until they were finished. They did not indicate that they had further submissions to make. Accordingly, I find that the factual basis for this aspect of the Request is without foundation and the respondents’ Request is dismissed for the reasons set out above.
It was unfair to allow the applicant’s counsel to file new documentation, pamphlets, folders, magazines and articles during her final submissions
The respondents’ submissions
33The respondents submit that it was unfair for the applicant’s lawyer to file new documentation, pamphlets, folders, magazines, and articles during her final submissions. This issue was not raised when the respondents received the applicant’s materials nor was it objected to during the applicant’s or respondents’ final submissions.
Analysis
34I have reviewed the materials that the applicant referred to during her final submissions and note that these materials were provided to the respondents by the applicant’s counsel on September 9, 2013, the day before final submissions were held, so that the respondents could review them prior to making their final submissions. The respondents did not object to these materials being submitted on either September 9 or 10, 2013. Instead, during the respondents’ final submissions, Ms. Goodman submitted that the cases relied upon by the applicant were not relevant to the issues before the Tribunal in this Application given that a number of them pertained to employment and not housing.
35Of the 29 documents that the applicant submitted with the Tribunal, 24 were cases decided either by the Tribunal or the courts; one was a policy and one was an excerpt from a policy issued by the Ontario Human Rights Commission (“the Commission”); one was an excerpt from a report entitled “We are your Sons and Daughters” issued by the Office of Child and Family Service Advocacy; one was a report entitled “Youth Leaving Care: an OACAS Survey of Youth and CAS Staff” prepared by Ontario Association of Children’s Aid Societies; and one was a report entitled “Women and Housing in Canada: Barriers to Equality” prepared by CERA. The applicant, from my review of the material that she filed as part of her final submissions, did not submit any folders or magazines.
36It is entirely appropriate for a party to refer to Tribunal case law and court case law in final submissions. Furthermore, section 30 of the Code gives the Commission the ability to issue and publish policies to provide guidance in the application of Parts I and II of the Code, and the Tribunal has the ability to consider the Commission’s policies. See Wozenilek v. 7-Eleven Canada, 2010 HRTO 407 at para. 33.
37As for referring to reports and articles, in addition to case law, a party may rely upon such material during their final submissions. That material can be relied upon or referred to by the Tribunal, as the Tribunal did in para. 38 of the Decision. In any event, the comments at para. 38, “I note that a person under the age of 18 who has withdrawn from parental control and who is homeless is acutely vulnerable and objectively at risk of suffering enormously and in many ways”, is an objective determination of the Tribunal which is supportable even without the reference to the report.
38Accordingly, the respondents’ Request is dismissed for the above-reasons.
It was unfair to permit the applicant’s counsel to file submissions after the hearing
The respondents’ submissions
39The respondents submit that the applicant was permitted to file additional submissions after the hearing ended, but the respondents were not. This, she says, is not fair as the respondents were not even permitted to complete their final submissions.
Analysis
40As noted above, the respondents did complete their final submissions.
41After the respondents’ final submissions ended, the applicant’s counsel sought an opportunity to make reply submissions to the respondents’ final submissions. On various previous hearing dates, the applicant’s counsel had advised that she could not stay late due to child care obligations, and it was clear the matter could not proceed further that day. The respondents objected to this. It was my view that the applicant’s counsel was entitled to provide Reply submissions.
42In all of the circumstances I determined that it would be fair to permit the applicant’s counsel to file written submissions by September 17, 2013. One of the factors I considered in deciding not to set a further hearing date for Reply submissions were the extraordinary difficulties the Tribunal had previously experienced in attempts to set continuation dates because of Ms. Goodman’s purported unavailability: see paras. 18 and 19 of the Decision.
43The applicant filed submissions by September 17, 2013 and filed a Form 23, Statement of Delivery, indicating that the submissions were mailed to the respondents. The respondents did not request an opportunity to reply to these additional submissions.
44Accordingly, the respondents’ Request is dismissed on this basis.
The adjudicator acted as mediator as well as adjudicator
The respondents’ submissions
45The respondents allege that the adjudicator acted as the mediator as well as the adjudicator. They submit that is not legal, “that is not the procedure,” and that it is not fair. They allege that the adjudicator listened to confidential matters other than possible settlement, which they do not identify, and revealed them to the respondents and the applicant, and that, “This was a major breach in law, is unfair, such that a new hearing must be scheduled.”
Analysis
46For the following reasons, I do not find that it is “not legal” or unfair to have acted as both the mediator and the adjudicator. The respondents’ Request is dismissed on this basis.
47On November 7, 2012, and again on May 29, 2013, the parties participated in mediation-adjudication in accordance with Rule 15A (“Mediation-Adjudication With the Agreement of the Parties”) of the Tribunal’s Rules of Procedure. That rules permits the adjudicator hearing the Application to act as a mediator in attempting to resolve the issues in the Application. That mediation, which is separate from the mediation that is offered before a hearing is scheduled pursuant to Rule 15 of the Tribunal’s Rules, is voluntary and requires the written authorization of the parties, by signing a Mediation/Adjudication Agreement.
48One of the terms of the Mediation/Adjudication Agreement is para. 4 which says:
We understand that a Tribunal member will conduct the mediation. We agree that if the parties are unable to resolve the application through mediation, the Tribunal member who conducted the mediation will conduct the hearing and adjudicate the Application. Neither party may request that the Tribunal member recuse himself or herself based upon anything that occurred during the mediation.
49As the Tribunal noted in Taite v. Carleton Condominium Corporation No. 91, 2011 HRTO 2334, the Mediation/Adjudication Agreement is a clear basis for denying a recusal request where the request arises from events occurring during the mediation. In Nyonzima v. Human Rights Tribunal of Ontario, 2012 ONSC 5120, the Divisional Court, at para. 12, upheld the Tribunal’s mediation-adjudication practice and found that it did not breach procedural fairness.
50On November 7, 2012, after I delivered opening remarks explaining the hearing process before the Tribunal, I offered mediation-adjudication to the parties, explained that process, including that it was voluntary and that if there was no settlement, the hearing would resume before me, and gave the parties a mediation-adjudication agreement to sign. The parties agreed to mediation-adjudication and in my presence signed the mediation-adjudication agreement. Ms. Goodman signed as Marian Linton and Carolyn Krebs as her identity as Carolyn Goodman was not yet known. See paras. 10 to 14 of the Decision. The parties attempted mediation for approximately 1 hour and 15 minutes, but failed to reach a settlement so the hearing resumed with opening submissions by the parties and testimony of the applicant.
51On May 29, 2013, mediation-adjudication was again attempted by the parties. The parties spent from approximately 9:15 a.m. until 4:40 p.m., with a lunch break from 12:55 p.m. to 1:45 p.m., mediating. In my presence the parties again signed the mediation-adjudication agreement reflecting the May 29 date. My notes indicate that Ms. Goodman wanted to re-read the mediation-adjudication agreement before signing, which she was permitted to do, and that she agreed with the terms on the mediation-adjudication agreement. When the parties failed to reach a mediated settlement, the hearing resumed with additional hearing dates canvassed and a timetable for submissions set if the respondents were going to object to the witnesses the applicant had identified in reply.
52Ms. Goodman alleges that “the adjudicator listened to confidential matters other than the possible settlement and reveilled [sic] them to them to the respondent and applicant”. She does not provide any examples of what she means are “confidential matters” and what was revealed. However, it is common in mediation-adjudication to discuss issues which go beyond the issues raised in an Application or Response and for the mediator-adjudicator to discuss those issues with both parties. In any event, the Decision is based upon the evidence, exhibits and submissions made during the hearing, and not during the mediation.
53As stated above, the Request fails on this basis.
The applicant received Interim Decisions that the respondents cannot fight
The respondents’ submissions
54The respondents submit that the applicant got Interim Decisions that the respondents could not fight, but provided no details and did not refer to any specific Interim Decision in support of this position.
Analysis
55As indicated in the Decision, a number of Interim Decisions were issued by the Tribunal during this proceeding. Some of them were issued as a result of the applicant filing a Request for Order During Proceedings (“RFOP”), with proof of sending the RFOP to the respondents, to which the respondents did not file a Response to the RFOP. See, Interim Decisions 2011 HRTO 1510 and 2013 HRTO 61. Others were initiated by the Tribunal containing specific directions to the respondents. When the respondents did not comply with those directions, or respond, Interim Decisions were issued with various rulings. See, for example, Interim Decision, 2012 HRTO 100; Interim Decision, 2012 HRTO 409; Interim Decision, 2012 HRTO 2161; and Interim Decision, 2013 HRTO 61. These are referred to in paras. 4, 8, 9 and 11 of the Decision.
56When the respondents did respond following the issuance of Interim Decision, 2012 HRTO 409, the Tribunal issued an Interim Decision, 2012 HRTO 787, revoking a previous order. See para. 5 of the Decision.
57I find as a fact, that the respondents did, in fact, have the opportunity to respond to RFOPs that were filed by the applicant, or respond to the Tribunal’s directions, but chose not to. Accordingly, any Interim Decision that was issued was done so after giving the respondents the opportunity to participate in the process. I find that there is no factual foundation to this aspect of the respondents’ Request and it is denied on this basis.
The applicant had legal representation whereas the respondents did not
The respondents’ submissions
58The respondents submit that it was unfair that the applicant had legal representation, whereas the respondents did not.
Analysis
59At no time prior to the Request did the respondents take issue with the fact that the applicant was represented by counsel and they were not. Even if it was raised, there is no requirement for a party, applicant or respondent, to be represented by a lawyer or other legal representative in the Tribunal’s proceedings. An applicant bears the onus of proving, on a balance of probabilities, that harassment or discrimination contrary to the Code occurred by the respondent. The fact that an applicant is represented by a lawyer does not mean that the Application will be upheld by the Tribunal. See, Chau v. Roy Foss Motors Ltd., 2013 HRTO 1061, and Briffa v. Costco Wholesale Canada Ltd., 2012 HRTO 1970. The Tribunal itself does not provide representation to any party appearing before it. It is entirely at the discretion of a party appearing before the Tribunal whether or not they obtain legal representation.
60As parties to the Tribunal’s proceedings are not required to have legal representation, the respondents’ Request based upon Rule 26.5(d) is dismissed.
Errors in the Decision
Ms. St. John is an independent contractor and not an employee
The respondent’s submissions
61The respondents submit that there is an error in the Decision finding that Ms. St. John is an employee, whereas she is an independent contractor. They did not cite a paragraph in support of this position.
Analysis
62The Decision does not identify Ms. St. John as an employee of the corporate respondent. For example, in para. 24, it states, “At times the parties referred to her [Ms. St. John] as the superintendent, but it was clear from the evidence that she was a rental agent who occasionally cleaned and worked in the office, and was not a superintendent”. At para. 115 of the Decision, the respondents are found liable for Ms. St. John’s comments pursuant to section 46.3 of the Code, given that she was acting as their agent and in accordance with their policy or requirements.
63In any event, as the Tribunal’s Practice Direction, above, states, reconsideration is not an opportunity to challenge findings of fact merely because a party disagrees with those findings. The respondents’ Request is dismissed on this basis.
The policy of the respondents not to rent to 17-year-olds
The respondents’ submissions
64The respondents submit that the Tribunal made an error in the Decision by claiming that the respondents have a policy that they do not rent out to 17-year-olds. The respondents submit that this is wrong, and instead they claim that Ms. St. John testified that the respondents do not like to rent to 17-year-olds. Again, the respondents do not refer to a specific paragraph in the Decision.
Analysis
65It appears that the respondents are attempting to change their position, again, like they did during the hearing. As noted in para. 74 of the Decision, the respondents’ position changed from denying that Ms. St. John told the applicant that the landlord did not rent to individuals under 18 years of age, to agreeing that Ms. St. John said this.
66At paras. 114 and 115 of the Decision, the Tribunal found that Ms. St. John had conveyed to the applicant, and Ms. MacDonald, that the applicant was denied the unit because of her age and the respondents’ prohibition against renting to individuals under 18 years of age. As indicated throughout the Decision, including paras. 51 to 54, I found Ms. St. John to be a credible witness. As above, I find that this aspect of the Request is an attempt to a challenge to a finding made in the Decision.
67The Request is denied on this basis.
Ms. St. John’s evidence was that the landlord did not like to rent to those under 17 rather than would not rent to those under 17
The respondents’ submissions
68The respondents submit that Ms. St. John testified that the landlord did not like to rent to those under 17 rather than it would not rent those under 17.
Analysis
69This point is addressed in the section above.
70The Request is dismissed on this basis.
There was a lack of evidence proving that the applicant had withdrawn from parental control
The respondents’ submissions
71The respondents submit that there was never any proof that the applicant had withdrawn from parental control. They submit that the Application stated that the applicant had withdrawn from parental control, and there was oral testimony that the applicant was a crown ward, but that the applicant had provided no proof that she had withdrawn from parental control. Being a crown ward is not synonymous with having withdrawn from parental control, the respondents submit.
Analysis
72This point was specifically addressed at para. 89 of the Decision. In that paragraph, the Tribunal noted that during the respondents’ final submissions, for the first time, they asserted that the applicant had not provided any information establishing she had withdrawn from parental control. Ms. Goodman had not, during the hearing, challenged the applicant, Ms. MacDonald or Mr. Fraser when they testified about this issue, which was clearly stated in the Application and during the oral evidence of these witnesses. Although the applicant provided documentation after the hearing confirming that she was a Crown ward and in receipt of support from CAS, as I set out in para. 89 of the Decision, I would have accepted the initially unchallenged evidence of the applicant and Ms. MacDonald that the applicant was a Crown ward and withdrawn from parental control.
73The respondents are attempting to raise the same point as that which they made, for the first time, during their final submissions. As the Tribunal’s Practice Direction on Reconsiderations states, as set out above, reconsideration is not an opportunity to repeat submissions that have been made during the hearing. Accordingly, the respondents’ Request is denied on this basis.
There was a lack of evidence that the applicant experienced long-term problems because she did not get the unit
The respondents’ submissions
74The respondents submit that during preliminary submissions, the applicant was described as having a job, being in school and generally proceeding well with her life. They submit that one can then conclude that there were no long-term problems because she did get an apartment two months later.
Analysis
75At para. 133 of the Decision, the Tribunal noted the respondents’ position that they were not responsible for what happened to the applicant after she was denied housing. Paras. 127 to 133 of the Decision set out the Tribunal’s findings about the impact the respondents’ actions had on the applicant from both a subjective and an objective perspective. At para. 133, the Tribunal specifically stated that it was unnecessary to engage in a detailed assessment about what happened to the applicant after she was denied housing by the respondents because she was not seeking damages or attempted to quantify losses after the discrimination occurred. It determined that the amount of $10,000 was appropriate because of the immediate impact of the discriminatory decision was sufficiently serious from both an objective and subjective basis to justify the monetary remedy awarded.
76As this was addressed already in the Decision, the respondents’ Request on this basis is denied.
There was a lack of evidence that the applicant’s boyfriend was abusive
The respondents’ submissions
77The respondents submit that there was a lack of evidence from the applicant that she continued to stay with her alleged abusive boyfriend and an absence of evidence about police encounters with her boyfriend if he was indeed abusive.
Analysis
78Again, the respondents are raising concerns that they identified during the hearing and those concerns are addressed in paras. 131 to 133 of the Decision. As set out in the section above, and as reflected in para. 133 of the Decision, the immediate impact of the discriminatory decision by the respondents was sufficiently serious from both an objective and a subjective basis to justify the monetary award. The respondents’ Request on this basis is dismissed.
The Monetary Remedy
The respondents’ submissions
79The respondents submit that the Decision is patently unreasonable with respect to the $10,000 awarded to the applicant. The applicant had been homeless since the age of 16, when she left the group home and continued to be homeless for over a year. She continued to be homeless for a further two months partially because she did not contact her case worker. She must, they say, take some responsibility for being homeless.
80The respondents further submit that $10,000 represents 14 months of rent. They say it is an unreasonable judgment and is punitive, and the HRTO is not supposed to be punitive.
Analysis
81As noted at para. 133 of the Decision, “it is unnecessary to engage in a detailed assessment of what happened to the applicant after she was denied housing by the respondents because the applicant has not attempted to quantify or seek damages for specific losses and the immediate impact of the discriminatory decision was sufficiently serious from both an objective and subjective basis to justify the $10,000 award sought for injury to her dignity, feelings and self-respect”.
82The respondents have not presented any jurisprudence with which the Tribunal monetary decision is in contrast. As noted in para. 125 of the Decision, it is well-established that the purpose of the Code is remedial, not punitive. See also Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 18.
83It is clear that the respondents disagree with the amount awarded, but have presented no foundation upon which the Request can or should be granted.
84The Request is dismissed.
Dated at Toronto, this 28th day of November, 2014.
“Signed by”
Alison Renton
Vice-chair