HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Leslie Austin Applicant
-and-
London Transit Commission Respondent
RECONSIDERATION DECISION
Adjudicator: Brian Eyolfson
Indexed as: Austin v. London Transit Commission
WRITTEN SUBMISSIONS BY
Leslie Austin, Applicant ) Self-represented
London Transit Commission, Respondent ) Lorraine J. Por, Counsel
1On November 21, 2013, the Tribunal issued its Decision in this Application, 2013 HRTO 1936, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.
background
2The Application alleged discrimination in the area of goods, services and facilities, on the basis of disability, in relation to the respondent’s paratransit service, which the applicant described as a “first come first served, door to door, pre-booked, shared ride system.”
3More particularly, the applicant explained in his Application that, to use the respondent’s paratransit service, one must book a trip three days in advance. He alleged that the “first come first served, advance booking features” of the service violate his right to be free from discrimination in that, as a person with a disability, he is denied equal access to an equivalent public transportation system available to others. The applicant’s allegations included that, on one occasion, he called to book a paratransit trip three days in advance and was advised that the only time frame available was 15 minutes before an appointment he had to meet. He was advised to call back on the day of his appointment to see if he could be picked up earlier. The applicant submitted that, given the three-day advance booking requirement, the respondent should be able to accommodate all requests for paratransit rides.
4The Tribunal’s Decision found as follows:
that the applicant did not make out a prima facie case, as he did not establish that he could not access the respondent’s conventional transit services because of his disability, such that the respondent’s paratransit booking features result in disadvantage to him because of disability.
that, in any event, the respondent established that it provided reasonable accommodation to the point of undue hardship.
THE REQUEST FOR RECONSIDERATION
5In his Request for Reconsideration (“Request”), the applicant submits that the Tribunal should reconsider its Decision based on the following issues or reasons:
i. The Tribunal’s decision that the applicant did not make out a prima facie case of discrimination is not supported by the evidence and is unreasonable.
ii. The Tribunal failed to follow established case law in arriving at its decision that the applicant had not established a prima facie case of discrimination.
iii. The Tribunal committed an error in reaching its decision that the applicant did not establish a prima facie case by considering the respondent’s evidence.
iv. The Tribunal’s statement at paragraph 62 of its Decision, and associated conclusion that any disadvantage the applicant experiences in accessing the respondent’s conventional transit service appears to be related to his place of residence, rather than disability, is not supported by the evidence and is unreasonable.
v. The respondent gave contradictory evidence, set out at paragraphs 32 and 34 of the Tribunal’s Decision, and the Tribunal failed to analyze or give reasons why it accepted or chose one version over the other.
vi. In addressing whether the respondent established accommodation to the point of undue hardship, the Tribunal relied on contradictory evidence, set out at paragraphs 81 and 82 of the Tribunal’s Decision, and failed to address the inconsistencies in its decision.
vii. The Tribunal failed to rule on the applicant’s Request for an Order During Proceedings (“RFOP”) concerning the respondent’s witness statements.
6The Respondent provided a Response to the applicant’s Request, dated January 28, 2014, submitting that the Request should not be granted. The applicant provided reply submissions, dated February 10, 2014.
DECISION
7Under section 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 the 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.
8The 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 April 2014). Most relevant to this 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.
9The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Parties may ask the HRTO to reconsider a final decision. The HRTO may also reconsider a decision on its own initiative where it considers it appropriate.
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.
11In the present case, the applicant relies on Rules 26.5(c) and (d) of the Tribunal’s Rules in his Request. Having considered the applicant’s submissions, I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.
Issue i.- No prima face case
12As set out above, the applicant’s first argument in support of his Request is that the Tribunal’s decision that he did not make out a prima facie case of discrimination is not supported by the evidence and is unreasonable. The applicant takes issue with paragraph 63 of the Tribunal’s Decision, wherein the Tribunal states, in part, that the applicant has not made out a prima facie case as he has not established that he could not access the respondent’s conventional transit services because of his disability. The applicant submits that the uncontested evidence before the Tribunal is that, as a registrant of the respondent’s paratransit service, it is deemed that he cannot access the respondent’s conventional transit services on a regular basis because of his disability.
13The Tribunal recognized in its Decision, at both paragraphs 8 and 47, that the respondent’s specialized transit services, of which paratransit is one service option, are designed to meet the range of needs of the citizens of London who have a disability which prevents them, on a regular basis, from being able to use the respondent’s regular, fixed-route transit service. However, the Tribunal’s decision that the applicant had not established a prima face case was based on all of the relevant evidence before the Tribunal, and the Tribunal’s reasons for its finding on this issue are more fully set out at paragraphs 47 to 63 of the Decision.
14Some of the evidence considered by the Tribunal in finding that the applicant did not establish a prima facie case includes the applicant’s own oral evidence at the hearing, set out at paragraph 55 of the Decision, that he can use the respondent’s conventional system when an accessible bus is available. The applicant also indicated in his paratransit registration form that he is able to get on and off the respondent’s buses if they are accessible, and that he is able to move unassisted to a bus stop by using his scooter. The respondent also provided evidence, set out at paragraph 57 of the Decision, that people who qualify for specialized transit services can still use conventional transit and are encouraged to do so, and the applicant acknowledged at the hearing that the respondent encourages people with disabilities to use regular transit. The Tribunal also noted, at paragraph 58 of the Decision, that the applicant did not dispute the respondent’s assertion, in both its written Response and submissions at the hearing, that its accessible conventional transit is an option for him.
15In the circumstances, I do not agree with the applicant’s assertion that the Tribunal’s finding that he did not establish a prima facie case is not supported by the evidence.
16In addition, to the extent the applicant asserts in his Request that he did establish a prima facie case, the applicant is essentially re-arguing his case. In 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 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. I find that the applicant’s first argument in support of his Request amounts to additional argument on issues already fully canvassed before the Tribunal.
Issue ii.- Case law
17The applicant also argues that the Tribunal failed to follow established case law in arriving at its decision that he did not establish a prima facie case of discrimination. The applicant refers to the Tribunal’s decision in Jagait v. IN TECH Risk Management Inc., 2009 HRTO 779, which notes that it is well-established that the threshold for establishing a prima facie case of discrimination is not high. He also refers to the Ontario Court of Appeal’s decision in Shaw v. Phipps, 2012 ONCA 155, and, in particular, the three elements that applicants are required to prove in order to establish a prima facie case, as set out in that case: i. that the applicant is a member of a group protected by the Code; ii. that the applicant was subjected to adverse treatment; and, iii. that the applicant’s Code ground was a factor in the alleged adverse treatment.
18The applicant submits that the Tribunal determined that he has a disability within the meaning of the Code. He also argues that he submitted at the hearing, as set out in paragraph 48 of the Tribunal’s Decision, that the three-day booking window is a barrier to accessible transportation, as compared to the conventional system, and that the respondent conceded, as set out at paragraph 52 of the Decision, that there is a distinction or disadvantage in that the applicant has to book a ride on the door-to-door service three days in advance. He also submits that he believes that his disability was a factor in the three-day booking window. He submits that all three parts of the test for a prima facie case were therefore satisfied, and that the Tribunal should reconsider its finding on this issue.
19The Tribunal determined, however, that the applicant did not establish that he is disadvantaged on the basis of disability as a result of the respondent’s paratransit booking features as alleged. The Tribunal found, as set out above, that the applicant did not establish that he could not access the respondent’s conventional transit services because of his disability, such that the respondent’s three-day booking window results in disadvantage to him because of his disability. The Tribunal essentially found that the applicant had not proven the third element of the prima facie case test set out in Shaw, above.
20I am not convinced that the Tribunal’s finding that the applicant did not establish a prima facie case is in conflict with any established jurisprudence, as the applicant argues. While the applicant clearly disagrees with the conclusions of the Tribunal, in my view, the applicant has not established that the Tribunal’s Decision conflicts with established jurisprudence.
Issue iii.- Consideration of the Respondent’s Evidence
21The applicant argues that the Tribunal committed an error in reaching its decision that he did not establish a prima facie case by considering the respondent’s evidence. The applicant submits that the Tribunal should have determined whether there was a prima facie case in the absence of an answer from the respondent. While the applicant submits that the Tribunal diverted from existing case law, the applicant did not refer to any actual case law in making this argument.
22This is not a case where the issue of whether or not the applicant had established a prima facie case was raised at the conclusion of the applicant’s evidence. Rather, the Tribunal determined that the applicant had not established a prima facie case of discrimination after hearing all of the evidence of both parties. While the onus is on the applicant to establish a prima facie case, the onus also rests and remains on the applicant throughout the case to establish that discrimination occurred, which the Tribunal determines based on all of the evidence. See Shaw, above, at paras. 29 and 30. See also Peel Law Association v. Pieters, 2013 ONCA 396 at para. 80-90.
23I also note that in Shaw, the appellants argued that the Tribunal was obliged to declare that the prima facie test had been met at the conclusion of the complainant’s case, and before the individual respondent gave evidence. The Court of Appeal held that, where the person alleged to have discriminated chooses to give evidence, the adjudicator must decide the case based on all the evidence. In rejecting the appellant’s argument, the Court held that, in the human rights context, there is no rational justification for requiring an adjudicator to decide the same issue on two occasions at two different points in the hearing, in the absence of any challenge to the sufficiency of the evidence at the conclusion of the complainant’s case. See Shaw, supra, at para. 28.
24In my view, it is not inappropriate for the Tribunal determine, after the conclusion of a hearing, whether or not a prima facie case of discrimination has been established in light of all of the evidence presented by the parties, before turning to the issue of whether or not a respondent has established accommodation to the point of undue hardship. Again, I am not convinced that the Tribunal’s finding that the applicant did not establish a prima facie case is in conflict with any established jurisprudence, as the applicant argues.
Issue iv. – Disadvantage based on Disability
25The applicant argues that the following statement of the Tribunal, and associated conclusion, at paragraph 62 of its Decision, is not supported by the evidence and is unreasonable:
… In the circumstances, it appears that the applicant is in the same position as an able-bodied neighbour, in that the nearest conventional transit is of a distance that is likely either inconvenient to access, and may require other means to access, such as driving or getting a ride to the nearest route. As such, any disadvantage that the applicant experiences in accessing the respondent’s conventional transit service appears to be related to the applicant’s place of residence, rather than disability.
26The applicant again argues that, as a registrant of paratransit, he is deemed not to be able to use the conventional transit system on a regular basis. This argument is addressed above, under “Issue i.” at paragraphs 12-14.
27The applicant also argues that he is not in the same position as an able-bodied neighbour, as an able-bodied neighbour would have no access to public transportation, but, as a registrant of paratransit, the applicant does have access to public transportation. In my view, the applicant’s argument in this respect does not support his case. I note that the Tribunal indicated, as set out earlier in paragraph 62 of the Decision, that it appears from the evidence that the applicant moved to a neighbourhood that is essentially not serviced by a conventional bus route. However, because the applicant is eligible for the respondent’s specialized services, which are available throughout London, the applicant has access to public transit at his door through paratransit, which the Tribunal also determined is a form of accommodation for persons with disabilities in the context of providing public transit services.
28The applicant also refers to a “quote” from the Ontario Human Rights Commission which he states is not part of the record but is informative. The “quote” states in part that “[p]ersons with disabilities may not have the ability, as does an able-bodied person, to walk or drive, or otherwise access with ease, the outlying points of service on the conventional transit system.” The applicant submits that the Tribunal’s comparison of him to an able-bodied neighbour is not fair. He again takes issue with the Tribunal’s finding that he did not make out a prima facie case as he did not establish that he could not access the respondent’s conventional transit services because of his disability, such that the respondent’s paratransit booking features resulted in disadvantage to him because of his disability. He submits that he did not come to the hearing with the expectation that he had to prove anything beyond the given fact that he could not access the respondent’s conventional system on a regular basis.
29The Tribunal’s decision that the applicant had not established a prima face case was based on all of the relevant evidence before the Tribunal. As set out above, under “Issue i.”, some of the evidence considered by the Tribunal in finding that the applicant did not establish a prima facie case includes the applicant’s own oral evidence at the hearing that he can use the respondent’s conventional system when an accessible bus is available. The applicant also indicated in his paratransit registration form that he is able to get on and off the respondent’s buses if they are accessible, and that he is able to move unassisted to a bus stop by using his scooter. The Tribunal also noted that the applicant did not dispute the respondent’s assertion, in both its written Response and submissions at the hearing, that its accessible conventional transit is an option for him.
30I do not agree with the applicant’s argument that the Tribunal’s statement, and associated conclusion, at paragraph 62 of the Decision is not supported by the evidence and is unreasonable. Again, I also find that the applicant is essentially re-arguing his case, and reconsideration is not meant to be an opportunity for a party to repair deficiencies in the presentation of a case.
Issue v. – Contradictory Evidence
31The applicant argues that the respondent gave contradictory evidence, set out at paragraphs 32 and 34 of the Tribunal’s Decision, and the Tribunal failed to analyze or give reasons why it accepted or chose one version over the other.
32Ms. Paleczny testified that the Canadian Urban Transit Association collects statistics that the respondent looked at, and that booking windows for when a paratransit trip can be requested varied across Canada from 30 days to one day. As set out at paragraph 32 of the Tribunal’s Decision, Ms. Paleczny testified that, if the respondent moved to a 30-day booking window, the service would be filled up 30 days, instead of three days, in advance. As I understand the applicant’s argument, he submits that this evidence of Ms. Paleczny’s contradicts other evidence that she gave, set out at paragraph 34 of the Decision, that the respondent moved from a seven-day to a three-day booking window, and there have been no requests to have the booking window extended, as compared to shortened. Ms. Paleczny also testified, as set out at paragraph 33 of the Decision, that there is no demand to be able to book 30 days in advance, and, based on consultations in 1998 and 1999, people wanted a shorter rather than a longer booking period, as compared to the seven-day booking period that existed at the time.
33As I understand Ms. Paleczny’s evidence, there is no demand for a 30-day booking period, and, based on consultations, people wanted a shorter booking period than the seven days that existed at the time, so the respondent moved to a three-day booking window. However, if the respondent did move to a 30-day booking period, the service would be “filled up” 30 days, instead of three days, in advance. In my view, there is no contradiction in Ms. Paleczny’s evidence, and the applicant is again attempting to re-argue his case.
Issue vi. – Undue Hardship
34The applicant argues that, in addressing whether the respondent established accommodation to the point of undue hardship, the Tribunal relied on contradictory evidence, set out at paragraphs 81 and 82 of the Decision, and failed to address the inconsistencies.
35Again, the applicant is arguing that the evidence of Ms. Paleczny, set out above, that there is no demand to be able to book 30 days in advance, but that, if the respondent moved to a 30-day booking window the service would be filled up 30 days, instead of three days, in advance, is contradictory. As I have addressed above, in my view, Ms. Paleczny’s evidence that there is no demand for a longer booking period, but that if the respondent did move to a longer booking window (i.e. 30 days) it would cause the paratransit service to fill up much earlier in advance, is not contradictory as the applicant argues. Again, the applicant is attempting to re-argue his case.
Issue vii. – Witness Statements
36The applicant argues that the Tribunal failed to rule on his RFOP concerning the respondent’s witness statements.
37More particularly, the applicant submits that, had the Tribunal considered and ruled on his RFOP, it would have ruled that the respondent’s witness statements did not comply with Rule 17 of the Tribunal’s Rules. The applicant also submits that the Tribunal relied on the respondent’s evidence that its three-day booking window was established in light of information from customers that a shorter booking period was desired, a recommendation from the respondent’s advisory committee at the time, and having looked at other transit systems. The applicant submits that the respondent should have disclosed that it was introducing evidence from the accessibility advisory committee, and that there was no indication that the respondent was relying on a telephone survey, or that it had contacted other transit systems.
38The applicant argues that he was taken by surprise by the above evidence, which is clearly outside the boundaries of Ms. Paleczny’s witness statement, and that he suffered substantial prejudice. He submits that the Tribunal should not have proceeded without first resolving his RFOP.
39As set out at paragraph 13 of the Tribunal’s Decision, after the respondent delivered and filed its witness statements for the hearing, the applicant filed an RFOP seeking more detailed witness statements. In response, the respondent provided revised witness statements, containing more detail. The revised witness statements were provided to the applicant approximately two weeks prior to the hearing. At the hearing, the applicant did not make any further request concerning the respondent’s witness statements.
40In its response to this Request, the respondent submits that, at no time, did the applicant indicate that he felt his RFOP had not been adequately dealt with. In the circumstances, it did not appear to the Tribunal that any adjudication with respect to the applicant’s RFOP was required.
41The Tribunal also notes that the hearing process was explained to the applicant, in detail, at the beginning of the hearing. In particular, the Tribunal explained to the applicant that, after the respondent’s witnesses completed giving their evidence, the applicant could provide reply or rebuttal evidence in relation to matters which arose from the respondent’s witnesses which he could not have anticipated in advance.
42The Tribunal also notes that, at no time during the testimony of the respondent’s witnesses, did the applicant raise any objection or concern about their evidence, particularly in light of the witness statements provided by the respondent. Also, when the respondent’s witnesses completed giving their evidence, the applicant was specifically asked by the Tribunal if he wished to provide any reply evidence. He indicated that he did not. The applicant also did not raise any concern regarding the respondent’s evidence in relation to the witness statements provided in his final submissions.
43In my view, while the respondent’s revised witness statements do not mention its accessibility advisory committee, or a telephone survey, or contacting other transit services, if the applicant had any concerns regarding the respondent’s evidence, in light of the witness statements provided, the appropriate time to raise such concerns would have been at the hearing, and not at this late date in a reconsideration Request.
44I also note that, in his Application, the applicant alleged that the “first come first served, advance booking features” of the respondent’s paratransit is discriminatory and that the respondent should be able to accommodate all requests for paratransit rides. With respect to remedy, in his Application, the applicant asked that the respondent guarantee trips booked with a minimum of 24 hours’ notice and up to three months in advance, and that the “first come first served” policy, and the requirement to call in three days in advance, be eliminated.
45At the hearing, however, the applicant only addressed the respondent’s three-day booking window, alleging only that the three-day booking window was discriminatory. He indicated that he was instead requesting a three-month booking window. The applicant did not assert at the hearing that the respondent’s inability to guarantee paratransit trips is discriminatory, nor did he indicate that he was seeking a remedy that all requested paratransit trips be guaranteed.
46In my view, the applicant significantly changed the focus of his allegations of discrimination, for the first time, at the hearing. It appears that the respondent attended the hearing prepared to respond to the applicant’s allegation that not guaranteeing all requested paratransit trips is discriminatory, and that doing so would cause the respondent undue hardship. I simply note that the respondent’s evidence concerning undue hardship that the applicant submits he was surprised by was evidence that was given in response to his assertion, made for the first time in his evidence at the hearing, that only the three-day booking window was discriminatory, and that simply changing from a three-day to a three-month booking window would not cause the respondent undue hardship.
47In my view, the applicant has not established that the Tribunal’s Decision is in conflict with established case law, or Tribunal procedure, and that the proposed reconsideration involves a matter of general or public importance, or that other factors exist that outweigh the public interest in the finality of Tribunal decisions.
Conclusion
48In 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 20th day of May, 2014.
“Signed by”
Brian Eyolfson
Vice-chair