HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elena Maximova Applicant
-and-
Darren Lacelle and Lina Lacelle Respondents
RECONSIDERATION DECISION
Adjudicator: Brian Eyolfson Date: June 4, 2014 Citation: 2014 HRTO 795 Indexed as: Maximova v. Lacelle
WRITTEN SUBMISSIONS
Elena Maximova, Applicant | Self-represented
BACKGROUND
1On March 27, 2014, the Tribunal issued an Interim Decision in this Application, 2014 HRTO 430, dismissing the Application as against three of five respondents named in the Application. The applicant has filed Requests for Reconsideration in relation to the Tribunal’s decision to dismiss the Application as against two of the respondents.
2The Application alleges discrimination with respect to the occupancy of accommodation on the basis of ancestry and receipt of public assistance, and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
3The applicant named the following individuals and organizations as respondents in the Application: the applicant’s landlord, Darren Lacelle, and her landlord’s spouse, Lina Lacelle; the Landlord and Tenant Board (the “LTB”); the Department of Planning, Parks and Recreation for the City of Cornwall; and, J. Douglas Grenky, a lawyer.
4The Tribunal’s Interim Decision determined, in part, as follows:
- that the applicant’s allegations concerning the LTB did not appear to engage any grounds of discrimination within the meaning of the Code, and that, in any event, it was plain and obvious that the Application, as it related to the LTB, was outside of the Tribunal’s jurisdiction due to the application of the doctrine of judicial or adjudicative immunity.
- that the applicant had not explained how the conduct of the respondents, Department of Planning, Parks and Recreation, and Mr. Grenky, related in any way to a Code ground, or why she believed that she was discriminated against by these respondents based on the Code grounds cited, and that it was plain and obvious that the Application, as it related to these respondents, was outside of the Tribunal’s jurisdiction.
5The Application as against the respondents, LTB, Department of Planning, Parks and Recreation, and Mr. Grenky, was dismissed.
THE REQUESTS FOR RECONSIDERATION
6It appears that the applicant filed a Request for Reconsideration (“Request”) on April 25, 2014, but the Request was incomplete at the time. In the Request, which was later completed, the applicant seeks reconsideration of the Tribunal’s decision to dismiss the Application as against the Department of Planning, Parks and Recreation.
7It also appears that the applicant filed a second Request on May 16, 2014, seeking reconsideration of the Tribunal’s decision to dismiss the Application as against the LTB.
DECISION
8Under 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.
9The 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.
10The 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.
11As 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.
12In the present case, the applicant relies on Rules 26.5(a), (c) and (d) of the Tribunal’s Rules in her Requests.
13I am satisfied that the Tribunal’s decision to dismiss the Application as against certain named respondents is a final decision for the purposes of the Tribunal’s reconsideration rules, as the decision finally determines rights and interests between parties. Having considered the applicant’s submissions, however, I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration. In the circumstances, it is not necessary to address any issues with respect to the lateness of the applicant’s second Request.
14With respect to her allegations against the Department of Planning, Parks and Recreation, the applicant submits in her Request that the Tribunal incorrectly quoted her written submissions in its Interim Decision. The applicant refers to the Tribunal’s Interim Decision wherein it states that the applicant submitted that the respondent decided to help the applicant’s landlord evict her by not giving her “an inspection report that she was entitled to”. The applicant submits that she stated in her written submissions that the respondent refused to provide her with “the document that normally would be available” to all tenants who order an inspection. In her written submissions the applicant also stated that it was her right as a tenant to have the report. I do not see how the manner in which the Tribunal summarized the applicant’s written submissions in its Interim Decision in any way engages any of the threshold criteria justifying reconsideration.
15The applicant also baldly submits in her Request that she had no chance to get the inspection report because she was in receipt of public assistance, and could not hire a lawyer, although she attended a legal clinic. She also baldly asserts that the Department of Planning, Parks and Recreation acted against her because she was in receipt of public assistance, and because her landlord paid them to act against her and lie at an LTB hearing.
16In my view, the applicant is essentially re-arguing her case, and making some new submissions that were not made, but could have been made, in her earlier written submissions. In any event, I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration, with respect to the Tribunal’s decision to dismiss the Application as against the Department of Planning, Parks and Recreation.
17With respect to the LTB, the applicant makes a bald assertion in her Request that an LTB adjudicator subjected her to discrimination on the basis of sex, in addition to receipt of public assistance; however, the applicant does not actually explain how, or why she believes that, she was subjected to any discrimination on the basis of sex. The applicant is also raising this new ground for the first time in her reconsideration Request.
18The Tribunal dismissed the Application as against the LTB, noting that the applicant’s allegations against the LTB did not appear to engage any grounds of discrimination within the meaning of the Code. The Tribunal also found that it was plain and obvious that the Application, as it related to the LTB, was outside of the Tribunal’s jurisdiction based on the doctrine of judicial or adjudicative immunity. In the circumstances, I find that the applicant’s reconsideration Request concerning the LTB does not engage any of the threshold criteria justifying reconsideration.
19In my view, the applicant has not established that: there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; 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, other factors exist that outweigh the public interest in the finality of Tribunal decisions.
CONCLUSION
20In summary, 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 Requests are denied.
Dated at Toronto, this 4th day of June, 2014.
“Signed by”
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Brian Eyolfson Vice-chair