HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Henry Freitag

Applicant

-and-

HGR Graham Partners LLP, The Corporation of the Town of Penetanguishene, The Corporation of the Town of Midland, Flynn's Traditional Irish Pub Inc., The German Canadian Club, The Corporation of the Town of Wasaga Beach and the Corporation of the Township of Tiny

Respondents

ReconsideratION Decision

Adjudicator: David Muir

Date: December 2, 2015

File Numbers: 2013-15035-I; 2014-16434-I; 2014-16441-I; 2014-18350-I; 2014-19482-I; 2014-19629-I; 2014-19662-I; 2014-18671-I; 2014-19208-I; 2014-19044-I; 2014-19045-I; 2015-20373-I

Citation: 2015 HRTO 1635

Indexed as: Freitag v. HGR Graham Partners LLP

INTRODUCTION

1In 2015 HRTO 1275, issued on September 23, 2015, these Applications were dismissed. In the same Decision the applicant was declared a vexatious litigant before the Tribunal. The Tribunal made the following Orders:

1. The Applications listed above are dismissed.

2. The applicant is declared a vexatious litigant. I order that the applicant, Henry Freitag, may not file further applications at this Tribunal without leave of the Tribunal.

3. If the applicant seeks leave of the Tribunal to file any such future application he must include with his complete application submissions that outline why the application is intended as a legitimate assertion of his Code rights, is not intended to vex the respondent(s) and will not result in an abuse of process. The Tribunal will consider any future applications which fail to include these submissions as incomplete and will treat them as such

2On November 16, 2015 the applicant filed a Request for Reconsideration (Request). In his Request the applicant relies on Rule 26.5 (c) and (d).

3The Request was acknowledged by the Tribunal but was not delivered to any of the respondents and therefore no responses to it have been delivered.

4For the reasons that follow the Request is dismissed.

Background

5In a Case Assessment Direction ("CAD") issued on March 18, 2015, the Tribunal directed that a number of these cases be scheduled at the same time at a preliminary hearing to consider whether or not these Applications should be dismissed because some or all of them have no reasonable prospect of success, or because the Tribunal has no jurisdiction to deal with them, or because some or all of them are an abuse of process. The Tribunal also directed that the parties make submissions about whether or not the applicant should be declared a vexatious litigant.

6In a CAD issued on March 27, 2015, the Tribunal directed that a further Application (2015-20373-I) be scheduled at the same time as the cases above to hear submissions about similar issues with respect to his file.

7In a further CAD issued on May 13, 2015, Tribunal file # 2013-15292-S was scheduled to be heard at the same time as the 13 other files above. In addition to issues outlined in CAD issued on September 18, 2013, the Tribunal directed that it would also consider this Application when determining the vexatious litigant issues.

8The preliminary hearing was ordered pursuant to Rule 19A.1 and 19A.2 of the Tribunal's Rules of Procedure, read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

9In the CAD directing the preliminary hearing, it was noted that a central concern with respect to many of the Applications alleging disability discrimination was the absence of facts which would establish that the applicant has experienced discrimination himself. The CAD went to point out that this issue was canvassed in the Tribunal's Decision 2013 HRTO 554, which considered 17 Applications filed by the applicant. The issue with respect to many of the Applications filed by the applicant was articulated in that Decision as follows:

In the particular case before me, I advised the parties that it seemed to me that several issues arise upon which I was inviting submissions from the parties regarding whether the applicants have a reasonable prospect of success in proving their allegations. The first issue I identified is whether the applicants have established that they have a disability within the meaning of the Code and restrictions or limitations arising from that disability that result in discrimination against them personally as a result of the various allegations raised in the 13 Applications before me. In particular, I noted that an issue arises as to whether the applicants have established that they have experienced a real burden or disadvantage because of their particular disability and limitations arising from the various situations about which they have complained.

This Tribunal does not have general jurisdiction to enforce the Building Code, or regulations under other legislation, or non-legislative accessibility standards, although these things may be referenced in evidence in a Tribunal proceeding. This Tribunal's only jurisdiction in this proceeding is under s. 1 of the Human Rights Code, and to determine whether either applicant personally has experienced discrimination because of disability in respect of services for which the Town is responsible. In a proceeding under the Code initiated by an individual, the evidence needs to establish an infringement of that specific individual's rights under the Human Rights Code because of a prohibited ground of discrimination, as opposed to an infringement of the rights of other persons. So the issue is not whether some other person with a particular kind of disability would face barriers or discrimination because of the situations raised in the Applications before me. Rather, the sole issue before me is whether the individual applicants experienced discrimination because of any particular disability they may have.

10In partial response to this issue, the applicant filed what appeared to be a note from his physician. The note, which is brief and handwritten, lists a number of medical issues which need not be repeated here. The note concluded that the applicant was "disabled for medical reasons". The March 18, 2015 CAD noted that the medical information did not describe any particular impairment resulting from the various medical issues that were listed nor was there any indication of what kinds of impairments or concomitant accommodation might flow from any such impairment.

ANALYSIS AND DECISION

11The applicant argues that the Decision is in conflict with established Tribunal practice with respect to consolidation of these files which the applicant argues are unrelated. The applicant suggests that the decision to "consolidate" was unfair to him. The applicant argues that the Tribunal's established approach to consolidation is based on the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 25 ("Persaud") a Decision of the Tribunal which was determined under the regime in place prior to 2008 when cases were prosecuted by the Ontario Human Rights Commission. The applicant argues that this approach appears to be concerned exclusively with issues of fairness for respondents and did not take account of fairness for applicants as well. The applicant argues that a more recent decision of the Tribunal, M.C. v Ontario, 2015 HRTO 1187 issued after the Decision in this case, expands the Persaud factors to include fairness for the applicant. Regardless, the applicant argues the Tribunal did not even follow established practice with respect to the hearing of these matters together.

12The applicant's argument is without merit. To begin with, the cases were not consolidated but were scheduled to be heard during the same three hour period. The cases were considered individually and the applicant was entitled to make submissions with respect to each of them in turn. The applicant's argument assumes that in determining that it was appropriate for these applications to be heard on the same conference call the Tribunal relied on the factors set out in Persaud, above, in particular fairness for the respondents, without regard to fairness for the applicant. There is no factual basis offered for this assertion. It is also not at all clear how scheduling 13 separate hearings would have been more fair to the respondents than to the applicant given the issues to be determined in the preliminary hearing. Moreover, the applicant at no time objected to the procedure followed although he had every opportunity to do so. The applicant also does not assert any actual unfairness to any party in the procedure that was followed. As regards the applicant's assertion that the Tribunal did not even follow the Tribunal's established procedure for dealing with these kinds of cases, there is no factual basis offered for this submission.

13The applicant remarks on two occasions that the hearing took less than an hour. This may be accurate but that is largely because the applicant had little or nothing to say about most of these cases. As set out earlier, the issue in many of these cases was whether or not the applicant had any evidence to establish that he was a person with a disability that was actually impacted by the alleged deficiencies described in a number of these Applications. At the hearing the applicant was asked to address the point several times and had nothing to offer. As indicated he did provide medical information prior to the hearing which described one or more medical conditions which were not helpful in addressing this fundamental defect in many of his Applications. In his submissions on the Request, the applicant asserts that he is "confined to a walker or wheelchair". The applicant made no such assertion at the hearing of these cases or so far as can be discerned from the record in any other of the other cases before the Tribunal.

14The applicant also argues that that the Tribunal departed from established Tribunal jurisprudence and administrative law practice by adducing its own evidence on the vexatious litigant issue. The evidence the applicant refers to is the public record of the number of Applications filed by the applicant and their dispositions. The applicant also asserts that at no time during the hearing did the Tribunal advise the parties that the vexatious litigant issue was before it. This latter assertion is clearly not accurate as the parties were all made aware that the Tribunal would hear submissions in the CAD issued on March 18, 2015.

15The applicant also asserts that none of the respondents addressed this issue at the hearing. Although it is not clear why this is important to the applicant's Request it is also not accurate as several of the respondents made submissions on the vexatious litigant issue as directed by the CAD.

16With respect to file # 2014-18530-I the applicant argues that the Decision is patently unreasonable. This is not a basis for reconsideration. The applicant also argues that he presented evidence that he attempted to enter the premises and could not. This is not an accurate characterization of the applicant's submission at the hearing. With this Application, as with many of the others, the issue was whether the applicant had any evidence that he was prevented from entering the premises as a result of some disability-related impairment. When asked at the preliminary hearing if he was prevented from entering the premises by any disability related impairment the applicant responded as set out in the Decision "that the Tribunal might pay for testing of his heart and then he could tell me (the Tribunal)".

17The applicant argues as well that the Tribunal did not appear to be aware that pictures of a ramp used as an alternative access to the premises were attached to the Application. The applicant argues that the ramp is clearly unsafe for use by "a person confined to a wheelchair or walker as is (the applicant)". As noted earlier, no evidence has been presented to the Tribunal that the applicant is or was confined to wheelchair or a walker. Although not referred to in the Decision the pictures of the ramp were reviewed but the issue for determination was not whether the ramp was an adequate accommodation but whether there was any evidence to which the applicant could point that he was prevented from entering the respondent's premises because of a disability-related impairment. As indicated, the applicant could point to no such evidence.

18In conclusion I find that none of the issues raised by the applicant are sufficient to support the reconsideration of the Decision and for these reasons the Request is dismissed.