Delynne Fretz v. BDO Canada LLP, 2015 HRTO 194

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Delynne Fretz Applicant

-and-

BDO Canada LLP Respondent

RECONSIDERATION DECISION

Adjudicator: Kathleen Martin Date: February 11, 2015 Citation: 2015 HRTO 194 Indexed as: Fretz v. BDO Canada LLP

WRITTEN SUBMISSIONS

Delynne Fretz, Applicant

Joseph Sussman, Counsel

1On August 29, 2014, the Tribunal issued its Decision in this Application, 2014 HRTO 1288, dismissing the Application. The Tribunal found that the applicant, who is Deaf, had not established through sufficient evidence that she required a sign language interpreter to access the services that would be provided during an initial meeting with the respondent. The Tribunal found that the respondent offered to accommodate the applicant by providing a meeting where the respondent’s representative would communicate with the applicant by writing back and forth. The Tribunal also found that the accommodation process broke down for a number of reasons, but principally the applicant’s decision to abandon the request.

2On September 29, 2014, the applicant filed a Response to a Request for Reconsideration and filed submissions requesting that the Tribunal reconsider the Decision. I have treated the Response as a Request for Reconsideration. In support of the applicant’s Request for Reconsideration (“the Request”), the applicant attached cases and a number of documents, only some of which were referred to in her submissions. In considering the Request, I have addressed only those documents where the applicant made submissions about the same.

3A respondent is not required to respond to a request for reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, I did not deem it necessary to seek submissions from the respondent.

4This is the Tribunal’s Decision on the Request.

The Tribunal’s Approach to Reconsideration

5Under 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.

6The 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). Most relevant to this Decision is Rule 26 which states in part:

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.

7The Tribunal’s Practice Direction on Reconsideration states in part:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

8As 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. Moreover, the Tribunal may only exercise this discretion in limited circumstances.

DECISION

9In the Request the applicant relies on new evidence that she states she could not have reasonably obtained earlier (Rule 26.5 a); that the Decision is in conflict with established jurisprudence including Eldridge v. British Columbia (Attorney General) 1997 CanLII 327 (SCC), [1997] 3 SCR 624 (“Eldridge”) (Rule 26.5 c); and that other factors exist that outweigh the public interest in finality (Rule 26.5 d).

New Evidence

10The applicant relies on two examples of new evidence that she submits could not have been obtained earlier.

11The applicant submits that the respondent has an accessibility policy that is part of the requirement of the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11 (“AODA”), that was not provided to her during the hearing. The applicant references sections of the policy in her submissions, although she does not include a copy of the same. In particular, the applicant highlights the reference that the respondent will provide its services in a manner that “respects the dignity, independence, and integration of people with disabilities” and that the respondent is committed to offering “equal opportunity” to access its services. In addition, the applicant refers to a section on “communication” which, among other things, indicates that the respondent is “flexible” in its approach and that staff should “tailor” their approaches “to dealing with clients appropriately”. The applicant submits that by not considering the applicant’s “preference” for ASL as her first language and by responding in the manner that it did, the respondent did not follow its own policy.

12In addition, the applicant cites certain information about the large size of the respondent’s business provided on the respondent’s website. The applicant states that this information demonstrates that a sign language interpreter could have been provided without undue hardship. The applicant submits that the Decision should have undertaken an undue hardship analysis as part of the duty to accommodate.

13I do not find that either category of new evidence justifies reconsideration.

14I am not convinced that the accessibility policy could not have reasonably been obtained earlier as it is apparent that the applicant has been able to obtain it for purposes of the Request for Reconsideration. Further, while I appreciate that had the policy been produced earlier it may have been the subject matter of some evidence, I do not find that the content of the policy significant such that it would be potentially determinative of the case as is necessary to justify reconsideration. The content of the policy appears to be consistent with principles set out in the Guide to “Accessibility Standards for Customer Service, Ontario Regulation 429/07 Accessibility for Ontarians with Disabilities Act, 2005, (AODA)”, which was produced in the hearing and principles articulated in human rights jurisprudence. Further, it bears mentioning that the applicant did question the respondent’s witnesses about her preference for American Sign Language (“ASL”) as her first language and why in light of her request, the other arrangement was made (see para. 51 of the Decision where the respondent’s witness stated that this was just an initial information meeting and that the applicant had indicated that she could communicate back and forth in writing referencing the applicant’s email of February 10).

15In view of the foregoing, I am not convinced that the respondent’s policy qualifies as new evidence that could potentially be determinative of the case.

16I am similarly not persuaded that the “undue hardship and cost consideration” cited by the applicant is the type of new evidence that would justify reconsideration. First of all, the evidence of the nature of the respondent’s business (being a leading accounting and advisory firm with 1,000 offices in more than 100 countries) is information gleaned from the respondent’s website, which undoubtedly could have been obtained earlier. Further and in any event, the respondent in this case did not assert a defence of undue hardship but instead defended its actions by submitting that it had offered reasonable accommodation to the applicant and that any breakdown in the accommodation process was due to the applicant’s conduct, a submission that ultimately the Tribunal accepted (see para. 83-85). In these circumstances, it was unnecessary to consider the issue of undue hardship and any evidence related to such an issue.

Conflict with Established Jurisprudence

17The applicant also submits that the Tribunal’s Decision is in conflict with other case law and jurisprudence, citing the Ontario Human Rights Commission Policy Statement on Accommodations for Persons with Disabilities (the “Commission Policy”), the Supreme Court of Canada decision in Eldridge, and two cases from other jurisdictions that the applicant submits have recognized the value of providing ASL interpreters for Deaf individuals as a reasonable form of accommodation.

18I do not find that the Tribunal’s Decision is in conflict with established jurisprudence.

19With respect to the Commission Policy, the applicant refers expressly to the emphasis on the importance of inclusiveness and the statement that “a solution for one person may not work for someone else” and submits that the Tribunal’s Decision is in conflict with this Policy.

20The Commission Policy is not jurisprudence, although the importance of inclusiveness and the referenced statement about the need to have individualized accommodation are arguably principles expressed in the Tribunal jurisprudence. However, I do not find the Tribunal’s Decision inconsistent with these principles. The Tribunal’s Decision was based on the issues raised and the evidence presented. In light of the issues in the Application, the Tribunal had to determine whether or not the applicant was disadvantaged by the manner of conducting the meeting in question and whether or not she was accommodated by the respondent. The focus of the Decision was on the applicant and the very specific fact situation presented and not what solutions may have worked for others (see paras. 70-76 in the Tribunal’s Decision).

21Similarly, I do not find that the Decision is in conflict with Eldridge.

22In Eldridge, the Supreme Court of Canada considered whether or not the failure of the B.C. government to provide funding for sign language interpreters for deaf persons when they receive medical services violated s. 15(1) of the Canadian Charter of Rights and Freedoms, and concluded that it was where sign language interpretation was necessary for “effective communication”. In elaborating on what this meant, the Court stated at para. 82:

This is not to say that sign language interpretation will have to be provided in every medical situation. The “effective communication” standard is a flexible one, and will take into consideration such factors as the complexity and importance of the information to be communicated, the context in which the communications will take place and the number of people involved; see 28 C.F.R. § 35.160 (1997). For deaf persons with limited literacy skills, however, it is probably fair to surmise that sign language interpretation will be required in most cases; see Chilton, at p. 886, and the many studies there cited.

(emphasis added)

23In her submissions, the applicant highlighted the latter statement, which I presume means that the applicant is now suggesting that she has limited literacy skills and therefore a sign language interpreter should have been provided.

24While neither party referred to Eldridge in their submissions at the hearing, the Tribunal was aware of the decision and applied its principles. In particular, the Tribunal considered all of the evidence presented (the evidence about the nature of the meeting, the type of information being exchanged, the evidence about the applicant’s literacy and the evidence about the applicant’s own view of her needs) in coming to its determination of whether or not the applicant was disadvantaged by the proposed method of communication in the meeting. Notably, the applicant had not asserted in the hearing that she had limited literacy skills. The evidence elicited on the applicant’s literacy referenced in paragraph 11 came from a question in cross-examination and was not specifically elaborated on in the evidence or addressed by the applicant in her submissions. As a result, the Tribunal found the evidence about the applicant’s literacy imprecise and not very helpful in understanding how her literacy related to the information being sought and exchanged in the meeting in question. Further, the limited evidence about the applicant’s literacy was difficult to reconcile with the other evidence presented, particularly the applicant’s own view of her needs as expressed at the time and in her evidence in the hearing. As is apparent from the Decision, the applicant suggested in an email to the respondent at the time that being unable to secure an interpreter should not inconvenience her and acknowledged in the hearing that she had emailed the respondent expressing this because she could communicate effectively back and forth in writing (see paras. 33, 34 and 73).

25Ultimately, based on the evidence presented and the findings made, the Tribunal was not satisfied that the applicant had established, on a balance of probabilities, that she was disadvantaged by the respondent providing an initial meeting during which the parties would communicate by writing back and forth (see para. 76 of the Decision). I do not find that this conclusion is inconsistent with Eldridge.

Other Factors that Outweigh the Public Interest in Finality

26The applicant also submits that there are other factors that exist that outweigh the public interest in finality. The applicant submits that the Tribunal misinterpreted the applicant’s disability, which has significant public importance for providing accommodations for Deaf individuals; disagrees with the Tribunal’s conclusions regarding the accommodation process; and submits that there were other “issues” with the facts, including the Tribunal’s findings on the applicant’s credibility in the Decision.

27I do not find that any of the examples provided outweigh the public interest in the finality of the Decision.

Facts about the Applicant’s Disability

28With respect to the alleged misinterpretation of the applicant’s disability, the applicant observes that while the Tribunal acknowledged that the applicant was Deaf, the Tribunal used the term “hearing impaired” interchangeably in the Decision. The applicant goes on to “clarify” that the applicant is “Culturally Deaf” (a term not used by the applicant in the hearing) and thus the requirement to write should not have been considered a reasonable form of accommodation. The applicant states that “the “reasonable accommodation” [in the … Decision] is incorrect in that all hearing impaired individuals share the same accommodations”.

29The applicant also provides new information about ASL in the Request (certain vocabularies may not be available, it has its own grammar and syntax which is distinct from spoken language) and that she “tried to convey this during the hearing” but “felt” she was not being understood. Further, the applicant states that although she is functional in written English and can communicate this way in some circumstances, such as ordering coffee, this form of accommodation should only be provided in “certain circumstances”. The applicant states that she “felt” this was not clear in her testimony.

30As a general observation, I would reiterate that reconsideration is not an opportunity to reargue a case and to change the way that one presents the case. In my view, the applicant’s submissions summarized above are tantamount to doing so. The applicant is rearguing the case by citing new facts and raising concerns that she could have, but did not raise, during the hearing.

31The Tribunal did not draw a distinction in the terminology between being Deaf and hearing impaired as the parties did not distinguish between these terms in a meaningful way that related to the evidence and their submissions. While the applicant clearly referred to herself as Deaf and ASL as her first language in her evidence, the respondent’s witnesses used the term “hearing impaired” to describe those individuals that it had experience with, including in referencing their experience with the applicant. The applicant did not highlight any distinction between the terms during her cross-examination of the respondents’ witnesses, although the applicant questioned the respondent’s witness on the witness’ previous experience with individuals who were hearing impaired. Further, the applicant did not suggest that there was any significance in the terminology in her final submissions.

32In any event, regardless of the terminology used, the Tribunal addressed the specific question that was at issue; namely, whether or not the applicant established that she was disadvantaged by the manner of communication offered in the initial meeting about the applicant’s financial situation. Contrary to the applicant’s submissions, the Tribunal made it clear that the case was not about deciding requirements for hearing impaired individuals generally (including, I would add, Deaf individuals) but rather about the specific case of the applicant that had been presented (see para. 70).

33With respect to the additional facts now offered about ASL and the applicant’s functionality in written English, while I view this information as new facts that were not presented during the hearing, I do not find that the applicant has provided a compelling reason as to why this information was not provided earlier. To the extent the applicant expresses concerns about the process and states that she felt that she was not understood, I do not find that the applicant has adequately explained why she did not raise these concerns at the time.

34I note that the Tribunal provided two sign language interpreters who interpreted the evidence provided and the submissions made. At no time did the applicant express any concern about the interpretation provided or that she “felt” that she was not being understood or that her evidence was “not clear”. In these circumstances, absent a compelling reason as to why the information was not presented earlier, I do not find that reconsideration is justified.

Applicant’s Submissions on Duty to Accommodate

35The applicant also asserts that the Decision “misinterpreted” the applicant’s obligation in the “duty to accommodate” and disputes the Tribunal’s conclusions in this regard. I note the applicant interprets the Decision as stating that “other alternatives should be considered before a sign language interpreter should be provided” and as such could lead to a “slippery slope” for future human rights cases.

36The Tribunal’s Decision does not stand for the proposition articulated (i.e. that other alternatives should be considered before a sign language interpreter). Rather, as stated in para. 70, the case was about a very specific fact situation and did not establish any general requirements about where and when sign language interpreters are required.

37Further and in any event, I view the applicant’s submissions as another example of re-argument or further argument on issues that were addressed at the hearing. As indicated above, this is not a basis for reconsideration.

Issues with Other Facts and Applicant’s Credibility

38Finally, the applicant makes a number of other submissions about other facts and findings in the Decision, including that there are errors in some of the facts (without identifying how the facts are incorrect), that documentary evidence was overlooked (without identifying what was ignored) and that the applicant was overwhelmed during cross-examination and “felt pressured” to change her answer when the same questions were repeated (without providing any further particulars beyond the comment made).

39I am not satisfied that the applicant has pointed to any other compelling reason to justify reconsideration in these submissions.

40Absent particulars, there is no basis to find that there are errors in the facts, that documentary evidence was ignored, and/or that the applicant was unfairly pressured such that reconsideration would be justified. I note that at no time did the applicant express in the hearing that she felt overwhelmed or “pressured” to change any answers. Further, based on my review of the evidence, I do not find that the applicant was “pressured” to change her answers. In fact, some of the repetition of questioning came from the applicant’s representative at the time, who re-examined the applicant on the issue of the timing of when the applicant identified her request for sign language interpretation when it had already been canvassed earlier in the applicant’s evidence (see para. 22 of the Decision).

41In summary, for all of the above reasons, I do not find that the applicant has established the existence of any of the criteria in Rule 26.5 that would warrant reconsideration of the Decision.

42I appreciate that the applicant is disappointed in the outcome in this case. Clearly, the applicant believed that once she identified she needed a sign language interpreter, the respondent should have provided one. However, for reasons given in the Decision, including the way in which the events developed, I found that the applicant not established through sufficient evidence that she required a sign language interpreter to access the service in question and that the respondent did not fail to accommodate the applicant in accordance with its obligations. The applicant has not established in her Request that there is any basis to reconsider that decision.

43The Request is denied.