Sprague v. RioCan Empress Walk Inc., 2015 HRTO 1385

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Sprague

Applicant

-and-

RioCan Empress Walk Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: October 19, 2015

Citation: 2015 HRTO 1385

Indexed as: Sprague v. RioCan Empress Walk Inc.

WRITTEN SUBMISSIONS

Andrew Sprague, Applicant

Self-represented

Introduction

1On July 16, 2015, the Tribunal issued Decision 2015 HRTO 942 (referred to as “the Decision” in these reasons). The Decision concluded that the applicant had been discriminated against contrary to the Code when he and his spouse were detained at the entrance of a mall by a security guard because the applicant was accompanied by a service dog. The applicant and his spouse were detained for approximately four minutes. The Decision found that the applicant was entitled to $1,000 as compensation for injury to dignity, feelings, and self-respect.

2On August 17, 2015, the applicant filed a Request for Reconsideration (“the Request”). The Request is 80 pages in length and includes a large number of complaints about the Decision, the hearing, and the Tribunal’s processes. The respondent has not been asked to make submissions on the Request.

3The Request includes a Table of Contents that indicates headings for over thirty areas that set out the basis for the applicant’s allegations of errors or incorrect interpretation of the evidence or the law and that the applicant believes justify reconsideration.

4Some of the submissions in the Request concerns the applicant’s views about things that the Province should do to address what he believes are legislative shortcomings in regard service animals. This part of the Request is not relevant to the request for reconsideration of the Decision and I do not propose to deal with these submissions in this Decision.

5Other parts of the Request relate to theories that the applicant has about the Tribunal and its processes. Most of this does not relate to the request for reconsideration either and is not addressed in this Decision.

The Test for Reconsideration

6Under 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 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.

7The 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, last amended April 2014). Rule 26 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.

8The Tribunal’s Practice Direction on Reconsideration includes the following statements:

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.

9As 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.

The Request for Reconsideration

10I will attempt to organize the applicant’s complaints and respond to the extent that a response is necessary in order to deal with the Request.

Facilities and services

11The Decision indicated that the Application alleged discrimination in respect of “services”.

12The Request notes that the applicant did not limit the allegations in the Application to services and that the allegations rather fall under the category of “services, goods and facilities” described in section 1 of the Code. The Request states that the allegations in the Application include allegations about facilities and not just about services.

13I accept that the Application includes allegations with respect to the respondent’s facility and not just with respect to services. In particular, it includes allegations about signage, about the mall security system, and more generally about access to a facility. While the Decision stated the Application was with respect to services, the Decision as a whole makes clear that the issue of the respondent’s facility was an issue, although the primary focus of the Application and the hearing was with respect to the issue of the detainment at the mall entrance by the security guard.

14The Request does not explain why the failure to expressly describe the Application as including facilities is a basis for reconsideration.

Spouse not wife

15The Decision refers to the applicant’s spouse as his wife. The Request correctly points out that the applicant never referred to his spouse as his wife.

16The reference to the applicant’s spouse as his wife was made in error and I apologize to the applicant for any embarrassment or inconvenience that may have resulted. This error can be corrected as an administrative re-issuance of the Decision if the applicant requests that this be done. The Request does not explain why the error provides a basis to reconsider the Decision.

The AODA and the Code

17The relationship between the Accessibility for Ontarians with Disabilities Act, 2005, SO 2005 c. 11 (“AODA”) and the Code was discussed in the Decision.

18In the Decision, I indicated that the applicant agreed that under both the AODA and the Code, the security guard had a right to ask him to provide information about his service dog. According to the Request, the applicant does not agree that the security guard had this right under the Code although he agrees that documentation may be requested under the AODA.

19The Request indicates that the applicant believes that nothing in the Code requires a service dog process similar to the process under the AODA.

20Under the Code, a person with a service animal requires accommodation in order to enter public buildings which otherwise do not permit animals on the premises. If the service provider or operator of a facility is not sure if an animal is a service animal or only a pet, the provider or operator is entitled to ask for some clarification. The documentation process under the AODA is one way that the clarification can be provided so that the person can be accommodated. The applicant is correct that there may be other ways that the need for accommodation can be appropriately identified and expressed.

21In this case, the applicant offered to provide documentation to the security guard to establish the need for accommodation. The security guard refused to look at the documentation and this refusal was a factor in the finding that the applicant had experienced discrimination under the Code.

22The Request indicates that the applicant is concerned that the Decision stands for the proposition that under the Code, a business has a right to ask for the documentation that a business can ask for under the AODA. In fact, apart from apparently misconstruing the applicant's opinions on this matter, the Decision did not explicitly make any finding on this point. The Decision made the finding that the applicant had experienced discrimination on the basis of the full context of the events (paragraph 55).

Employment status of the security guard

23The Decision states that the security guard was fired about one week after the applicant was detained at the mall. According to the Request, the security guard quit and was not fired. According to the Request, this shows bias as it indicates an intention to suggest that the respondent took some action and thus to put the respondent in a better light. As discussed in the Decision, the end of the security guard’s employment, however that happened, had nothing to do with the events involving the applicant because the respondent did not know anything about those events until after the security guard’s employment had ended. Apart from the bias allegation, the Request does not provide any explanation for why the security guard’s employment status is relevant to a request for reconsideration.

What did the security guard do?

24The Decision states that the applicant testified that his assumption was that the security guard went to seek clarification about what to do. According to the Request, the applicant did not assume this. He cites several documents filed by the parties in support of his contention that the security guard went to ask his supervisor or manager what to do. He submits that this was not an assumption but rather was what the security guard told him. The importance of this distinction is not clear.

25The Decision found that the security guard went to the security office and spent the ensuing time watching the applicant through the security camera system. The applicant disputes this and believes that the security guard went to the office and asked his supervisor what to do and that they then both watched the applicant on the security cameras. He cites sections of his hearing brief in support of this.

26I accept that the applicant does not agree with some of the factual findings in the Decision and has a different interpretation of the evidence. However, this does not provide a basis to reconsider the Decision.

27The Request alleges that the factual determinations about what happened during the approximately four minutes the applicant was detained were improperly influenced by procedural rulings concerning the viewing of security footage.

28According to the Request, “the Adjudicator was not keen, at all, on viewing the surveillance camera recording.” The information about the security camera video that was presented in the discussion with the parties about how to deal with the video included the fact that there were two different cameras; that the two cameras were not synchronized with respect to the time, so that while one indicated that something happened at a particular time, the other indicated that the event happened at a different time; that there were sections of the video that were not relevant; and the parties had different opinions about what the video would show. This information required some discussion to ensure that the video evidence could be properly understood.

29There was also discussion about whether Mr. Patterson, the security supervisor who was present as a witness should be permitted to watch the video at the same time as the other hearing participants. I determined that it was appropriate for him to do so.

30The Request submits that this was incorrect and that Mr. Patterson should not have been allowed to view the video until after the applicant had cross-examined him.

31While I accept that the applicant does not agree with this procedural aspect of the hearing, the Code and the Tribunal’s Rules contemplate that the Tribunal can be flexible in respect of the way a hearing unfolds, including determining the order in which the issues and evidence in a proceeding will be presented (section 43(3)(b)(ii) of the Code). I do not agree that any substantive or procedural unfairness resulted as a result of this matter.

32The Request indicates that he was not permitted to fully cross-examine Mr. Patterson on inconsistencies. In particular, the Request states that at one point during his questioning of Mr. Patterson, the applicant showed Mr. Patterson two sweaters, one of which was blue and one of which was black. The applicant felt this was relevant because in an incident report, Mr. Patterson indicated that the applicant was wearing a blue sweater but in fact he was wearing a black sweater. According to the Request, I ruled that Mr. Patterson did not have to provide an answer about the colour of the applicant’s sweaters and told the applicant to move on. According to the Request, this ruling allowed me to find that Mr. Patterson was a credible witness which would not have happened if the applicant had been permitted to continue his questioning about the colour of his sweaters.

33While I do not recall this specific interaction, it appears that the evidence the applicant alleges he was denied the ability to lead was of little or no probative value which is why he was told to move on in his questions.

How did the applicant get the security guard’s badge number?

34The Decision indicated that Mr. Patterson provided the applicant with the security guard’s badge number. According to the Request, Mr. Patterson instructed the security guard to give the applicant his badge number. The Request does explain what turns on this difference.

The name of the applicant’s dog

35According to the Request, the name of the applicant’s dog is “NSD Flicka”. The Decision referred to the dog as “Flicka” and so did not use the dog’s full name. The Request explains that NSD stands for “National Service Dogs” and indicates that my failure to use the dog’s full name is inexplicable. The explanation for referring to the dog as “Flicka” is that this is how the dog was referred to during the hearing.

Naming the security guard

36The Request notes that the Decision did not refer to the name of the security guard. The Request submits that the name of people who are found to have discriminated against an applicant are typically named in decisions. The applicant submits that the fact that I did not do so in this case raises a perception of partiality and bias.

37The security guard in this case was not a party to the Application. He was no longer an employee of the respondent and was not called as a witness. There was no indication that he was aware of the Application or the proceeding. These circumstances are different than is typically the case. The Tribunal has no policy regarding the use of names of people who are not parties to an Application, however, the Tribunal has generally followed the Canadian Judicial Council’s protocol on the “Use of Personal information in Judgments” along with other such policy documents which note the importance of reducing the use of unnecessary personal information in decisions, especially for witnesses and non-parties. The named respondent in this case was RioCan Empress Walk Inc.

Signage

38An issue in the hearing was the signage that the respondent had on the doors leading into the mall. It indicated that no animals were permitted in the mall and failed to indicate that an exception applied for service animals and guide dogs. The applicant brought this to the respondent’s attention and the signs were changed. In the Decision, I indicated that, except for the sign on one of the doors, the signs were changed immediately after the applicant raised the issue with the respondent. The applicant does not agree that the signs were changed immediately. He reiterates his opinion that the signage violated section 13 of the Code.

39The applicant's submissions in the Request about this issue are a repeat of submissions made at the hearing. As noted earlier, the Tribunal’s reconsideration process is not intended to provide an unsatisfied party with the opportunity to re-argue things that were argued at the hearing.

Damages award

40Much of the Request concerns the damages that were awarded to the applicant. In the Application, the applicant asked for monetary compensation of $10,000. He reiterated this request at the hearing. The Decision referred to this as a request for a “substantial amount of compensation.” The Request indicates that the applicant never asked for a substantial amount of compensation. The reference to a substantial amount of compensation was in regard to the objective facts of the case which were that the applicant was detained at the entrance for approximately four minutes. The Decision found that an award of $1,000 was appropriate.

41The Request includes a somewhat elaborate theory about this Tribunal’s approach to cases involving service dogs and guide dogs.

42The Decision briefly reviewed seven prior decisions involving service dogs and guide dogs. This is a common practice as it supports the goal of “like treatment for like cases”. The Request does not disagree that this is appropriate. One of the cases that was mentioned was Robdrup v. Werner Property Management, 2009 HRTO 1372 (“Robdrup”). The Decision indicated that the applicant made submissions on this case, among the others mentioned in the Decision. According to the applicant, he did not make submissions on Robdrup. The Request suggests that this is significant because Robdrup had been cited in only two other cases involving service animals, and that one of these was a case that I authored. However, the applicant does not dispute that he had an opportunity to make submissions on all of the relevant jurisprudence.

43Another of the cases mentioned in the Decision was Sweet v. 1790907 Ontario Inc. o/a Kandu Sushi, 2015 HRTO 433 (“Sweet”). This was a Decision that I authored following a hearing in that case. The Decision in Sweet was issued on April 1, 2015 and the hearing in the instant case was on May 27, 2015, so it was a relatively recent case. A few days before the hearing, the respondent advised that it wished to refer to Sweet at the hearing. Both parties made submissions about the case in their closing submissions.

44The applicant’s submissions about Sweet included his opinion that Sweet was wrongly decided because, in the applicant’s view, it suggested that people who require service animals are not entitled to the same protection under the Code as people who use guide dogs. In the Request, the applicant repeats and elaborates on the submissions he made at the hearing. He advises that is “displeased” with the decision.

45While I do not agree with the applicant's characterization of the decision in Sweet, it is not necessary to deal with this in the context of this Request for Reconsideration because the applicant does not dispute that he had the opportunity to make submissions about the case at the hearing. The applicant does say that he felt somewhat disadvantaged as he received the Sweet decision only a few days before the hearing. However, he did not suggest at the hearing that he required more time to make submissions.

46The Request indicates that I was biased as an adjudicator of the applicant's case because of my finding that the fact that the applicant has previously been asked for documentation was relevant to the circumstances giving rise to the Application. He submits that unless the Decision is changed, people with service animals will be, by analogy, “carded”. The Request states:

The Applicant respectfully submits that he has a reasonable apprehension of bias and that the Applicant genuinely believes that the Adjudicator holds service dogs in a lesser regard as compared to guide dogs.

47However, the Request goes on to opine that:

[D]ecided cases before the HRTO involving guide dogs ALWAYS result in the awarding of higher monetary damages than those decided cases before the HRTO involving service dogs…

48While it is of course regrettable that the applicant does not think that his case was decided fairly, as discussed below, the test for bias is not whether he has a belief of bias but rather whether an informed person, viewing the matter realistically and practically, would believe there is a reasonable apprehension of bias.

49It is also not completely clear whether the applicant is alleging that I am biased or that the entire Tribunal is biased. With regard to the applicant's analysis of the Tribunal’s jurisprudence, I think it is relevant that there have not been that many decided cases. It is very relevant that the factual context in those cases varies considerably.

Apology

50A very important issue for the applicant is that the respondent did not apologize for the incident. I understood this at the hearing and considered this issue in the Decision. I appreciate that the applicant does not agree with my findings about this but this does not provide a basis for reconsideration.

51The Request also reiterates the applicant's view that the respondent’s Response to the Application was inappropriate. For example, in the Response, the respondent put quotation marks around the words service animal and stated that at the time of the incident the applicant did not appear to be suffering from any disability that would require the assistance of a service dog. The Request re-iterates the applicant’s view that these statements were “highly inflammatory and insulting” and his suggestion that additional compensation should have been awarded as a result.

52The Decision dealt with this submission at paragraphs 59 – 61. I accept that the applicant does not agree with these conclusions but this does not establish a basis for reconsideration.

53The Request contains additional lengthy submissions about the Law Society of Upper Canada Rules of Professional Conduct. To the extent that these have any relevance to the Request they are only further elaboration of the applicant's views about the Response and do not provide a basis for reconsideration.

Public interest remedy

54The applicant had sought public interest remedies including training and changes to the respondent’s internal Code of Conduct. The Decision found that no public interest remedy was required in this case because the security guard is no longer employed by the respondent, and the signage has all been changed. During the hearing, the respondent made an undertaking to voluntarily change its internal Code of Conduct. I found that there was no reason to make any further order about this.

55The Request argues that the respondent should have been directed to provide a copy of the revised Code of Conduct to the applicant. I agree that an order of this nature is sometimes made but such an order is clearly discretionary and, as was done in this case, is made in consideration of the circumstances.

Media coverage

56The Request includes a lengthy discussion of media coverage of the Decision. The Request suggests that some of this was negative and this would not have happened if higher damages had been awarded or if the applicant had been awarded compensation for the respondent’s failure to apologize.

57The Tribunal has no control over how the media may choose to report on its decisions and that fact that there was media coverage does not provide a basis for reconsideration.

Allegations of bias

58The legal test for bias was summarized in Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 in the following terms (at paragraph 15):

The well known test for “reasonable apprehension of bias” is whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly.

59The Request is replete with allegations of bias. For the most part these relate to the applicant’s view that cases involving service animals and those involving guide dogs should be dealt with in the same way, and his opinion that I did not do this in his case or in a case decided earlier.

60The simple answer to this is that, as noted in the Decision, human rights cases are highly contextual and are decided on the basis of the full circumstances.

61Other allegations of bias relate to the applicant's disagreement with some of the findings and conclusions in the Decision. The fact that the applicant does not agree with the Decision is not evidence of bias.

62In my view, this test has not been met in this case.

DECISION

63The applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration set out in the Tribunal’s Rule 26. The Request is denied on that basis.