HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ben Weigl
Applicant
-and-
109 Brien Tenants Association
Respondent
A N D B E T W E E N:
Ben Weigl
Applicant
-and-
Windsor Essex Community Housing Corporation and Wayne Bondy
Respondents
RECONSIDERATION DECISION
Adjudicator: Brian Eyolfson
Indexed as: Weigl v. 109 Brien Tenants Association
WRITTEN SUBMISSIONS BY
Ben Weigl, Applicant ) Self-represented
1On December 17, 2013, the Tribunal issued a Decision in Application File Number 2012-11760-I (“first Application”), dismissing the Application following a summary hearing. On December 20, 2013, the Tribunal issued a Decision in Application File Number 2012-12275-I (“second Application”), dismissing the Application following a merits hearing. The applicant has filed Requests for Reconsideration, asking the Tribunal to reconsider its Decisions.
background
2Both Applications allege discrimination on the basis of disability, and reprisal, in the area of housing, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
3In the first Application, the applicant alleges that the respondent, 109 Brien Tenants Association (the “Tenants Association”), removed his bicycle from a “smoking post” that it was secured to, without his permission. He alleges that this exasperated his disability and further contributed to a poisoned environment. The applicant also alleges that moving his bicycle was a reprisal for posting material to educate fellow tenants on their rights, and since there is a “closeness” between the co-chair of the Tenants Association and the property manager of his housing provider, which he previously filed applications against with the Tribunal. He also alleges that he complained to his housing provider when his postings were taken down.
4In the second Application, the applicant alleges that the respondents, Windsor Essex Community Housing Corporation (the “housing provider”) and Wayne Bondy, did not accommodate his disability when they repeatedly knocked at his apartment door to advise him that they were going to relocate his bicycle, despite a clearly visible “do not disturb” sign. He alleges that this conduct was in contravention of a pre-existing “accommodation agreement” which required the respondents to communicate with him only in writing. He also alleges that the door knocking was harassment and a reprisal for filing earlier applications with the Tribunal.
5The first Application was dismissed on the basis that it had no reasonable prospect of success. The Tribunal’s Decision dismissing the Application determined, in part, as follows:
Assuming the allegations in the Application to be true, in my view, the applicant’s allegations cannot reasonably establish that the respondent violated the applicant’s rights under the Code on the basis of disability… The applicant… has not explained how the respondent would have known that moving his bicycle… would have resulted in any disadvantage on the basis of disability, or would have required any accommodation of disability-related needs.
In my view, assuming the applicant’s allegations are true, the allegations are insufficient to establish that the respondent engaged in reprisal when it moved his bicycle. I find that the applicant has not established that moving his bicycle could reasonably be considered as an intended retaliation for engaging in the activities the applicant refers to… as forming the basis of his reprisal allegation.
6The Tribunal’s Decision dismissing the second Application determined, in part, as follows:
Fundamentally, the applicant has failed to establish that either moving his bicycle, leaving a note for him on his bicycle or informing him in person resulted in any disadvantage on the basis of disability.
I find the respondent’s decision to knock on the applicant’s door to advise the applicant that his bicycle was going to be moved to be completely reasonable in the circumstances, unrelated to any Code ground, and not an act of harassment and not an act which contravenes the Code… I find that this act… was not an act of reprisal.
I find that the respondents’ actions in relocating the bicycle were not actions of reprisal.
THE REQUESTS FOR RECONSIDERATION
7With respect to the Tribunal’s Decision dismissing the first Application, the applicant seeks reconsideration for the following reasons:
i. the respondent’s counsel may have been compensated by the applicant’s housing provider, which may mean that his housing provider intervened in the hearing, directly or indirectly, without the permission of the Tribunal, and may have tainted any fair, just and expeditious resolution by delaying the entire process;
ii. the Tribunal’s Decision does not indicate that the applicant received three different Responses to the Application, from the respondent, his housing provider, and the respondent’s counsel, which by the Tribunal allowing may have caused delay, and tainted any fair, just or expeditious process; the Response from the respondent’s counsel was filed with the Tribunal after an extension of time to file a Response was granted and the time for doing so had expired, and should not have been accepted by the Tribunal; and, the Tribunal should have only accepted the second Response filed by the respondent, itself, which was never copied to the applicant, and which he only became aware of after filing a request for information with the Tribunal; and,
iii. new evidence in the hearing of the second Application.
8With respect to the second Application, the applicant seeks reconsideration of the Tribunal’s Decision, submitting that, because of the Decision, the respondent may now be able to knock on tenants’ doors, including disabled tenants in non-emergency situations, even if they have a “do not disturb” sign. He also submits that, because of the Decision, the respondent may now be able to move tenants’ property, without their knowledge, at any time.
DECISION
9Under 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.
10The 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.
11The 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.
12As 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.
13In his reconsideration Requests concerning the present Applications, the applicant relies on Rule 26.5(a), with respect to the first Application, and Rules 26.5(a) and (c), with respect to the second Application.
14Having considered the applicant’s submissions, I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.
Application File Number 2012-11760-I
15In his Request concerning the first Application, the applicant submits that the respondent’s counsel may have been compensated by the applicant’s housing provider. He submits that this may mean that his housing provider intervened in the hearing, directly or indirectly, without the permission of the Tribunal, and may have tainted any fair, just and expeditious resolution by delaying the entire process.
16I do not accept the applicant’s assertion that, if the respondent’s counsel was compensated by the applicant’s housing provider as the applicant submits may have occurred, this would have amounted to any sort of intervention by the applicant’s housing provider in the summary hearing proceedings concerning the first Application. I also do not see how this could have tainted any fair, just and expeditious resolution by delaying the process as the applicant asserts, or otherwise. In my view, these submissions of the applicant simply do not engage Rule 26.5(a) or any of the threshold criteria justifying reconsideration.
17The applicant also submits that: the Tribunal allowed the filing of three different Responses to the Application, which may have caused delay, and tainted any fair, just or expeditious process; the Response from the respondent’s counsel was filed after an extension of time to file a Response was granted and the time for filing had passed, so the Response should not have been accepted by the Tribunal; and, the Tribunal should have only accepted the second Response filed by the respondent, itself, which was never copied to the applicant, and which he only became aware of after filing a request for information with the Tribunal.
18It appears from the Tribunal’s file that the respondent sought an extension of time to file a Response to the Application, and was granted until December 31, 2012 to do so. On December 18, 2012, the Tribunal received an incomplete Response from the respondent, which was not represented by counsel at the time. On January 30, 2013, the Tribunal issued a Notice of Incomplete Response to the respondent, copied to the applicant, advising the respondent, which was then represented by counsel, that its Response was not complete. The Tribunal’s correspondence indicates that a copy of the incomplete Response was attached. The respondent was directed to file a completed Response with the Tribunal by February 20, 2013. The respondent did so on February 5, 2013. There does not appear to be a Response to the Application from the applicant’s housing provider, as the applicant asserts.
19While it appears that there were delays with the respondent filing a complete Response to the Application, in my view, there is nothing inappropriate about the Tribunal accepting the complete Response filed by the respondent on February 5, 2013. In my view, the applicant’s submissions concerning the filing of a Response, or Responses, to his Application simply do not engage any of the threshold criteria justifying reconsideration.
20The final argument that the applicant raises in his Request concerning his first Application is that there was new evidence in the hearing of his second Application. In particular, the applicant submits that, at the hearing of his second Application, his housing provider’s property manager admitted that he gave the Tenants Association permission to move his bicycle. He also submits that counsel for his housing provider was shown a picture of another bicycle where the applicant’s bicycle was parked, and counsel indicated that it was not in a prohibited location.
21The Decision dismissing the applicant’s first Application followed a summary hearing. For the purposes of the summary hearing, it was assumed that the applicant’s allegations in the Application, including that the respondent Tenants Association moved his bicycle, were true. The Tenants Association also did not appear to dispute that it moved the applicant’s bicycle. In my view, evidence that the applicant’s housing provider gave permission to the Tenants Association to move the applicant’s bicycle would have no bearing whatsoever on the Tribunal’s finding that the Application against the Tenants Association has no reasonable prospect of success.
22It is also my view that evidence as to whether or not the applicant’s bicycle was in a “prohibited” location would have no bearing on the finding that the Application has no reasonable prospect of success. The respondent’s position at the summary hearing was that the applicant’s bicycle was moved because there was a barbecue taking place in the area where the bicycle was, and the bicycle appeared to be in the way of the event. The Tribunal noted in its Decision that the applicant did not dispute that a barbecue was taking place in the area where his bicycle had been secured, but it was not assumed that the bicycle was in a “prohibited” location. In any event, the Tribunal found that the applicant did not explain how the respondent would have known that moving his bicycle would have resulted in any disadvantage on the basis of disability, or would have required any accommodation of disability-related needs. It is also my view that whether or not the applicant’s bicycle was moved from a “prohibited” location would have no bearing on the Tribunal’s finding that the applicant’s allegations are insufficient to establish that the respondent engaged in reprisal when it moved his bicycle.
23With respect to the applicant referring to new evidence from the hearing of his second Application, in support of his Request concerning his first Application, I find that the applicant has not established any of the threshold criteria justifying reconsideration.
Application File Number 2012-12275-I
24In his Request concerning the second Application, the applicant submits, among other things, that the respondent may now be able to knock on tenants’ doors, including disabled tenants in non-emergency situations, even if they have a “do not disturb” sign, as a result of the Tribunal’s Decision. He also submits that, because of the Decision, the respondent may now be able to move tenants’ property, without their knowledge, at any time
25In my view, the applicant is essentially re-arguing his case, and making submissions that, if not made, could have been made at the hearing of the Application. I note that 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.
26In addition, while the applicant relies on Rules 26.5(a) and (c), the applicant has not pointed to any new facts or evidence that could potentially be determinative of the case, and that could not reasonably have been obtained earlier, nor has he referred to any jurisprudence to which he believes the Tribunal’s Decision is in conflict. 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 dismissing the applicant’s second Application.
CONCLUSION
27In 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 either of the Tribunal’s Decisions. The Requests are denied.
Dated at Toronto, this 13th day of June, 2014.
“Signed by”
Brian Eyolfson
Vice-chair