Barr v. Mainstay Housing, 2017 HRTO 1350

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paula Barr

Applicant

-and-

Mainstay Housing (The Supportive Housing Coalition of Metropolitan Toronto)

Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw

Date: October 12, 2017

Citation: 2017 HRTO 1350

Indexed as: Barr v. Mainstay Housing

WRITTEN SUBMISSIONS

Paula Barr, Applicant

Self-represented

Introduction

1On July 17, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 887, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2The Tribunal’s Decision found as follows:

• the applicant has not established any adverse impact on her housing or services provided by the respondent, nor if there was any adverse impact that it in any way was linked to her disability.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration (the “Request”) provides the following reasons why the Tribunal should reconsider its Decision:

a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, namely a psychiatrist’s report and letter, respectively dated July 20 and August 7, 2017; and

b. 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.

THE LAW

4Under section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, 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.

5The 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:

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.

6The 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.

7As 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.

ANALYSIS AND CONCLUSIONS

8I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

9As indicated above, applicant relies on Rule 26.5(a) and (c). Primarily, the applicant submits that:

a. she was not able to access the services of a psychiatrist prior to the hearing, but has since obtained a report and follow up letter from him that was not available at the hearing; and,

b. the Tribunal has misapplied the law because she is not able to access the existing services of the respondent given her diagnoses.

10In support of her Request, the applicant essentially repeats arguments made orally before the Tribunal, and repeats much of the same evidence respecting her inability to communicate with the respondent face to face. It is important to note that the issues raised in this Request were the subject of submissions before me, and dealt with in my Decision. The Tribunal stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 (“Sigrist”) that reconsideration is not an opportunity to re-argue a case. Once the parties to an application 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.

11With respect to the applicant’s position that she has new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, she submits the psychiatrist’s report and addendum. I note that the psychiatrist states he began his association with the applicant in October 2016. The hearing in this matter began on December 16, 2016 and resumed on April 16 and 17, 2017. While it may have been difficult for the applicant to get a report from the psychiatrist for the initial date and meet the disclosure deadlines, she does not explain why she did not seek to introduce the additional medical evidence prior to the resumption of the hearing in April 2017.

12More importantly however my finding was that the applicant did not suffer an adverse impact on her housing or the services provided by the respondent, and the additional medical information would not be determinative of that issue. In addition, while the psychiatrist’s addendum refers to an incident with a dog, this occurred after the hearing and is not relevant to the events that were the subject of this Application.

13The applicant also includes in her Reconsideration Request, an e-mail from the office of the Ministry of Health and Long-Term Care dated July 26, 2017 which states that the Ministry does not have any requirement that agencies [such as the respondent] are not permitted to use email communication with their tenants. Again, not only does the applicant not explain why this information could not have been obtained for the hearing, but it also would not be determinative of this case.

14She also includes some documents from the Ontario Disability Support Program, which are not relevant to my determination.

15I am not convinced that any findings I made in the Decision are in conflict with established jurisprudence. The applicant does not refer to any established jurisprudence with which she alleges my Decision conflicts.

16The Tribunal stated in Sigrist, above, that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the applicant clearly disagrees with my conclusions, I am satisfied that her submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

17In 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 the Tribunal’s Decision. The Request is denied.