HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Edward Bonds
Applicant
-and-
Niagara Peninsula Homes Inc. and Vineyard Co-operative Homes Inc.
Respondents
RECONSIDERATION DECISION
Adjudicator: Josée Bouchard Date: October 17, 2017 Citation: 2017 HRTO 1379 Indexed as: Bonds v. Niagara Peninsula Homes Inc.
WRITTEN SUBMISSIONS
Niagara Peninsula Homes Inc. and Vineyard Co-operative Homes Inc., Respondent
Jessica Connell, Counsel
1The applicant filed an Application on October 20, 2016 alleging discrimination with respect to housing because of race, colour and disability and because he was subjected to reprisal or threat of reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The respondents Niagara Peninsula Homes Inc. and Vineyard Co-operative Homes Inc. (“Vineyard Co-operative”) have made a request for reconsideration of my Interim Decision 2017 HRTO 1080 (“Interim Decision”) on the limited and narrow issue of whether the applicant’s allegation with respect to the bulletin board is untimely pursuant to s. 34(1) of the Code.
3The respondents argue that it appears the Tribunal did not adjudicate the issue as no reasons were given regarding the timeliness of the bulletin board issue. The respondents submit that the Interim Decision is in conflict with established Tribunal jurisprudence and procedure and with the administrative law requirement to provide reasons and, as such, it is a matter of general and public importance. The respondents argue that reconsideration is warranted pursuant to Rule 26.5(c) and (d) of the Tribunal's Rules of Procedure.
Background
4The applicant Edward Bonds resides at Vineyard Co-operative. In his Application and the various other documents he filed with the Tribunal, he made numerous allegations, including that “management discriminated [by] leaving the word nigger on display in lobby for 7 days”. More specifically, in his documents, the applicant alleges that on March 2, 2015, another tenant saw the word “nigger” scratched into the Vineyard Co-operative's community bulletin board. He alleges that the respondents took seven days to remove the bulletin board and that this amount of time was too long. The applicant did not see the bulletin board and stated in his documents that he was not aware of the incident until he was told about it by another tenant, many months later in September 2015. He complained to Vineyard Co-operative by letter dated October 15, 2015.
5The applicant filed his Application with the Tribunal on October 20, 2016.
6In its Response, the respondents argued with respect to the timeliness of the bulletin board:
The bulletin board allegation, whether it runs from when it occurred in March 2015 or in the alternative from when Mr. Bonds first learned of it in September 2015, is also out of time. [It] should be dismissed pursuant to section 34(1) of the Code.
Is the Interim Decision Final?
Respondents’ Submissions
7The respondents acknowledge that pursuant to Rule 26.1, only “final” decisions may be reconsidered. They submit that in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 at para. 41 (“Sigrist”) and in Farahani v. Toronto (City), 2012 HRTO 1295 (“Farahani”) the Tribunal determined that an interim decision may be “final” where it disposes of some or all of the central issues in the application. They argue that this is the case here.
Analysis and Decision
8Under Rule 26.1, only “final” decisions qualify for a reconsideration request. In Sigrist, above, the Tribunal determined that even an interim decision may be “final” where it disposes of some or all of the central issues in the application.
9In Farahani, above, the Tribunal found that many of the allegations were untimely and that, but for one allegation, the allegations related to race, ethnic origin and place of origin had no reasonable prospect of success and were dismissed. Certain allegations with respect to alleged reprisal were not dismissed as having no reasonable prospect of success. The Tribunal held that the interim decision disposed of some of the central issues in the application and, on that basis, the Tribunal's reconsideration process was available (para. 9).
10I am satisfied that the Interim Decision in the matter before me disposes of some of the central issues in the Application and, on that basis the Tribunal’s reconsideration process is available.
reconsideration request
11Under 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.
12The 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 June 2008). 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.
13The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
14As 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.
15As indicated above, the respondents rely on Rule 26.5 (c) and (d). I find, however, that they have not met the burden of establishing any of the threshold criteria justifying reconsideration.
16The Interim Decision is based on submissions made at a Preliminary Hearing where evidence on the merits of the Application has not been heard. Based on the parties’ submissions, the Tribunal concluded that at this point it could not find that there is no reasonable prospect that the allegations of poisoned environment, based on the combined impact of the alleged offensive notes posted on the applicant’s door and the offensive note scratched on the bulletin board, will succeed.
17The Tribunal notes that it may very well be that, once the evidence on the merits has been heard, it could conclude that the allegations of the offensive notes posted on the applicant’s door and the note scratched on the bulletin board are not part of a series of events leading to a poisoned environment. As such, the respondents are not precluded from raising the issue of delay at the hearing on the merits.
18For these reasons the Request for Reconsideration is dismissed.
Dated at Toronto, this 17th day of October, 2017.
“Signed by”
Josée Bouchard
Vice-chair