Taranco v. Michedes (a.k.a. Michaelides), 2011 HRTO 1188

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Taranco Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Peter Michedes a.k.a. Panayiotis Michaelides Respondent

RECONSIDERATION DECISION

Adjudicator: Sheri D. Price Date: June 21, 2011 Citation: 2011 HRTO 1188 Indexed as: Taranco v. Michedes (a.k.a. Michaelides)

WRITTEN SUBMISSIONS BY

Michael Taranco, Complainant: Emma van Leusden, Counsel Ontario Human Rights Commission: Isfahan Merali, Counsel Peter Michedes a.k.a. Panayiotis Michaelides, Respondent: Chrysanthi Michaelides, Power of Attorney/Representative

1This decision deals with two Requests for Reconsideration: the complainant’s October 29, 2010 Request for Reconsideration of the Tribunal’s January 28, 2010 Decision; and the respondent’s February 23, 2011 Request for Reconsideration of the same decision.

BACKGROUND

2Before dealing with the Requests, it is helpful to set out some of the background in this Complaint.

3The April 17, 2007 Complaint alleging that the respondent had discriminated against the complainant on the basis of age and sex with respect to housing was referred to the Tribunal by the Commission pursuant to s. 36(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 10, 2008.

4The respondent never participated in the Commission’s process or in two conference calls convened by the Tribunal in 2008, and so, in October 2008, the Commission requested that the matter proceed by way of written hearing. On January 20, 2009, after being satisfied that the respondent had been given notice of the proceeding and of the request for a written hearing, and in the absence of any communication from the respondent, the Tribunal granted the request for a written hearing: 2009 HRTO 67.

5The Commission and the complainant failed to submit any evidence on the written hearing as had been directed by the Tribunal. The Complaint was therefore dismissed for lack of evidence on April 9, 2009: 2009 HRTO 426.

6The Commission sought reconsideration of the Tribunal’s Decision to dismiss the Complaint on the basis that Commission counsel misread the Tribunal’s January 20, 2009 decision and did not understand that the parties were required to submit affidavit evidence in the written hearing. The Commission also stated that it erroneously informed the unrepresented complainant that he was not required to submit anything in the written hearing. The complainant confirmed that he had relied on this misinformation provided by Commission counsel.

7On September 10, 2009, the Tribunal granted the Request for Reconsideration pursuant to Rule 102(d) of the Tribunal’s Rules of Practice: 2009 HRTO 1439. I found that the importance of ensuring that the complainant was not unfairly deprived of a hearing through no fault of his own outweighed the public interest in the finality of decisions in the particular circumstances of that case. I directed that the Complaint would be reheard by way of written hearing.

8Based on the affidavit evidence submitted in or around October 2009, I found that the respondent had infringed the complainant’s right under the Code to be free from discrimination on the basis of age and sex with respect to housing and ordered the respondent to pay the complainant monetary compensation for the injury to his dignity feelings and self-respect, among other things: 2010 HRTO 128.

Complainant’s Request

9On October 29, 2010, the complainant filed a Request for Order during Proceedings seeking to have the name of the respondent in the Tribunal’s January 28, 2010 Decision “corrected” to “Peter Michedes a.k.a. Panayiotis Michaelides” instead of “Peter Michedes a.k.a. Panayitis Michaelides” which is how the respondent had been named in the Complaint and throughout the Tribunal proceedings.

10I declined to grant the complainant’s Request as a Request for an Order during Proceedings because there were no ongoing proceedings at the time the Request was made. However, I decided to treat the Request as a Request for Reconsideration and gave certain directions about how that Request was to be dealt with: 2011 HRTO 32.

11Subsequently, in February 2011, the respondent’s attorney emailed the Tribunal to confirm that the respondent’s name is in fact “Panayiotis” Michaelides. As the complainant points out, the January 24, 2011 power of attorney documents which were submitted to the Tribunal and provided to the parties confirm this, as well.

12Pursuant to s. 21.1 of the Statutory Power Procedures Act, R.S.O. 1990, c. S.22, as amended (“the SPPA”), the Tribunal may correct a typographical error, error of calculation or similar error made in any of its decisions or orders at any time.

13In light of the information provided by the respondent, I am satisfied that the reference to the respondent as “Panayitis” was the result of a typographical error. I find it appropriate to correct that error in accordance with s. 21.1 of the SPPA. The name of the respondent in the Tribunal’s decisions and/or Orders is hereby corrected to “Peter Michedes a.k.a. Panayiotis Michaelides”.

14In the circumstances, it is no longer necessary to determine the complainant’s October 29, 2010 Request for Reconsideration.

Respondent’s Request

15As noted above, the respondent did not participate in either of the two hearings of the Complaint during the period from October 2008 to January 2010 (i.e. the initial hearing from January to April 2009, which led to the dismissal of the Complaint; or the rehearing from September 2009 to January 2010). Nor did the respondent respond to any of the correspondence which was sent to him by the Tribunal or the other parties to the Complaint attempting to give him notice of the proceedings.

16On January 24, 2011, the respondent gave his daughter, Chrysanthi Michaelides, continuing power of attorney with respect to this matter.

17On February 16, 2011, the respondent’s attorney filed a Request for Reconsideration pursuant to Rules 102(a) and (d) of the Rules of Practice for Commission-referred Complaints. In that Request, the respondent, through his attorney, asks the Tribunal to reconsider its January 28, 2010 Decision that he infringed the complainant’s rights under the Code and give him a chance to tell his “side of the story”. The respondent’s attorney states that the respondent was unable to participate in the hearing of the Complaint or to communicate with the Tribunal during the relevant time frame because of mental incapacity.

18The Commission and the complainant filed submissions opposing the respondent’s Request for Reconsideration. They submit that the Tribunal ought to dismiss the Request as untimely because it was filed long after the 30-day time limit for reconsideration had passed. They further submit that the respondent has not satisfied the Tribunal that there are compelling and extraordinary circumstances warranting reconsideration of the Complaint within the meaning of Rule 102(a) or (d) of the Rules of Practice.

ANALYSIS AND DECISION

19Rule 102 of the Tribunal’s Rules of Practice for Commission-referred complaints states that:

102. 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;

(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;

(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 and orders.

20Having carefully considered the matter, I am satisfied that the respondent’s Request for Reconsideration ought to be granted pursuant to Rule 102(d) of the Rules of Practice. Moreover, for the reasons set out below, I am satisfied that the time limit for filing a Request for Reconsideration in the very particular circumstances of this case ought to be extended so as to permit the respondent’s attorney to file the Request for Reconsideration on the respondent’s behalf on February 16, 2011.

21The respondent’s attorney states that the respondent’s mental condition has been deteriorating for approximately the past eight years, during which period the respondent became unable to manage his business as a landlord. The respondent’s attorney states that because of the respondent’s mental incapacity, the respondent did not understand what was expected of him in the Tribunal process and was unable to participate in that process while it was ongoing. She states that because of his mental incapacity, the respondent simply did not grasp the gravity, breadth or urgency of the proceedings before the Tribunal.

22The respondent’s attorney states that the respondent’s mental disability interferes with the respondent’s ability to think and act in a logical manner. She states that the respondent has trouble understanding and processing situations, that the respondent “lives in a bubble,” and is oblivious to what is happening around him.

23A number of examples support the respondent’s power of attorney’s statements about the respondent’s deteriorating mental state and illustrate the respondent’s inability to manage his affairs from 2006 onwards:

• In autumn 2006, the respondent unexpectedly went to pick his grandson up at the elementary school from which his grandson had graduated the previous school year, even though the respondent attended the graduation and had been shown his grandson’s new school. The respondent became “petrified” when he could not find his grandson at the elementary school, and started yelling and “making a fuss” before leaving.

• In the fall of 2009, the respondent was in the process of providing his passport, bank book, bank account number, and his and his wife’s full names, addresses and signatures to someone who told the respondent that he needed these things in order to purchase the respondent’s six-unit apartment building. At the respondent’s daughter’s (now his attorney’s) behest, a police offer attempted to explain to the respondent for two hours that the prospective buyer was fraudulent. However, the respondent did not understand the police officer’s explanation and was very angry with his daughter for thwarting the sale.

• After separating from his wife in 2009, the respondent moved in with the daughter who now has his power of attorney. During the three-month period that the respondent lived with his daughter and her children, the respondent would not let the family turn on the lights after 4:00 p.m. to save energy. He did not maintain a basic level of personal hygiene and also urinated on his daughter’s sofa and spit on her carpet.

• After moving out of his daughter’s house, the respondent rejected his daughter’s offer to help relocate him to one of the units in his six-unit apartment building, and moved into a homeless shelter instead. The respondent continued to live in a homeless shelter to at least March 2011 even though he obviously had the means to live elsewhere. He lived on food from soup kitchens and food banks.

• After moving out of his daughter’s house, the respondent repeatedly filled his daughter’s kitchen with boxes of food from the Food Bank, including hundreds of single serving packages of jam, margarine and sugar as well as dozens of baloney and processed cheese sandwiches. The respondent’s daughter did not want or need the food and has pleaded with her father to stop, but the respondent persists. The respondent’s daughter states that the respondent irrationally believes that if he does not bring this food to his daughter and her children, they will starve. As of February 2011, the respondent’s daughter’s kitchen was “stacked full” of 16 full boxes of food which the respondent had brought from the food bank.

• One day in 2010, the respondent became convinced that his daughter was dead inside her house when she did not answer the door and called his daughter’s children and her ex-husband to tell them that. (She was actually taking a shower). The respondent panicked and broke the lock on his daughter’s door trying to get in the house to save his daughter.

• In or around 2010 or 2011, the respondent was “banned” from RBC Insurance when, unable to understand numerous explanations by the insurance agent as to what the respondent had to do to renew the insurance on his apartment building, the respondent caused a big ruckus, “yelling and fighting”. Afterwards, the respondent refused to allow his daughter to assist him in resolving the problem and his apartment building sat without insurance for months.

24In addition, the respondent’s attorney’s statements about the respondent’s diminished mental capacity are supported by two March 2011 reports from a psychiatrist who assessed the respondent in 1992 and in 2011. These psychiatric reports indicate that the respondent has paranoid schizophrenia with a history dating back 30 years and that the respondent has all along refused treatment for his condition. The more detailed of the two reports describes the respondent as delusional and paranoid, having different fixed beliefs such as the belief that the mafia is after him and that the complainant is a member of the mafia organization sent to harm him; that people want to harm him and that even his family is trying to poison him; and that the police and government are plotting against him.

25Having carefully considered the matter, and taking all of the available information into account, I am satisfied that the respondent’s mental disability more likely than not interfered with the respondent’s ability to participate in the hearing of the Complaint. In coming to this conclusion, I rely on the concrete information which has been provided about the respondent’s deteriorating mental condition from 2006 onwards; the respondent’s attorney’s assertions that the respondent’s mental capacity has been deteriorating for several years; and that, because of his mental disability, the respondent did not understand what was expected of him in relation to the Tribunal proceedings and was not capable of participating in the hearing; and recent psychiatric reports about the respondent’s mental disability.

26The information before the Tribunal indicates that the respondent’s mental state was in decline at least as early as 2006 and that, by 2009, the respondent was incapable of meeting even his needs for personal hygiene and shelter, notwithstanding that he had the financial resources to do so. In my view, if the respondent was unable to meet these most basic needs in 2009, it is reasonable to infer that the respondent was probably unable to function at the significantly higher level required in order to participate in the hearing of the Complaint from late 2008 throughout 2009.

27In addition, the information before the Tribunal indicates that because of his mental disability, paranoid schizophrenia, the respondent has a number of paranoid fixed beliefs. One of these paranoid fixed beliefs, as confirmed in the psychiatrist’s March 2011 report, is that the complainant is a member of the mafia who has been sent to harm the respondent. In my view, the respondent’s belief that one of the parties to the proceeding is a member of the mafia sent to harm him more likely than not interfered with the respondent’s ability to participate in the proceeding on a rational basis.

28For all of these reasons, and on balance, I am satisfied that the respondent was likely not capable of meeting his obligations in relation to the Tribunal’s process during the period when the Complaint was proceeding through that process in late 2008 and throughout 2009. In other words, I am satisfied that the respondent was unable to participate in the hearing of the Complaint because of mental disability. The question is whether the importance of holding a hearing in which the respondent can participate outweighs the public importance of finality in Tribunal decisions and orders. In my view, it does.

29As noted above, I have previously granted a Request for Reconsideration in favour of the complainant and the Commission after they failed to adduce evidence on the first written hearing. This was because, in my view, the unrepresented complainant’s right not to be unfairly deprived of a hearing outweighed the public interest in the finality of decisions. The fundamental right to be heard is equally important to the respondent who was found to have infringed the complainant’s human rights in a hearing which he did not participate. Certainly, if the respondent chose not to participate in the Tribunal’s process, I would not hesitate to dismiss his Request. However, as set out above, the information before the Tribunal satisfies me that the respondent was unable to participate in the hearing because of his mental disability and therefore due to circumstances outside of his control. In my view, it would not be fair to the respondent to deny him his opportunity to be heard in the circumstances of this case. For these reasons, I am satisfied that the respondent’s fundamental right to be heard outweighs the public interest in the finality of decisions and that this is an appropriate case in which to exercise my discretion to grant the respondent’s Request for Reconsideration pursuant to Rule 102(d).

Delay

30The Commission and the complainant submit that the Request for Reconsideration ought to be dismissed on the basis of delay because it was not filed within 30 days of the date of the Decision, in accordance with Rule 98 of the Tribunal’s Rules of Practice. However, the time limit in Rule 98 is subject to the Tribunal’s power under Rule 14(a) to lengthen or shorten any time limit in the Rules.

31The Commission and the complainant submit that I ought not to entertain the Request for Reconsideration because the respondent’s attorney did not file the Request until four months after she found out about the Tribunal proceedings in October 2010. However, I do not think it would be appropriate to hold the respondent’s daughter’s actions before she was appointed as her father’s attorney against the respondent.

32Before an attorney was appointed, the question, to my mind, is whether the respondent himself could reasonably have been expected to file a Request for Reconsideration or arranged to have one filed. As discussed above, the information and materials before the Tribunal suggests that because of his mental disability, the respondent has been incapable of managing his affairs for some time, and has been living in a homeless shelter since around the time the January 28, 2010 Decision was issued. In the circumstances, I am satisfied that the respondent could not reasonably have been expected to file a Request for Reconsideration of his own accord within 30 days of the date of the January 28, 2010 Decision, or indeed at any time since the Decision was issued.

33As for delay in filing the Request after the respondent’s daughter was appointed as his attorney, the material before the Tribunal indicates that within days of being appointed as her father’s attorney on January 24, 2011, the respondent’s daughter contacted the Tribunal to obtain copies of documents from the file so that she could ascertain what the status of the matter was and what steps were to be taken. She received those documents in late January 2011 and filed the Reconsideration Request in a reasonably prompt manner, on February 16, 2011. Moreover, the Request was filed within 30 days of the respondent’s daughter’s appointment as the respondent’s attorney. In the circumstances, I do not think the timing of the filing of the Request by the respondent’s attorney is a basis upon which to refuse to entertain the Reconsideration Request on its merits.

34The complainant submits that he would be prejudiced by the granting of the Reconsideration Request. He submits that the respondent sold his apartment building on February 4, 2011, and that this disposition of assets will make it harder for the complainant to enforce his judgment against the respondent. The complainant does not assert that the passage of time has prejudiced him in his ability either to respond to the Request for Reconsideration or to present his case at the rehearing of the Complaint, which is the sort of prejudice which might warrant a refusal to extend the time consider the Reconsideration Request. The fact that the respondent might dispose of assets which he seems entitled to dispose of is not a basis upon which to refuse to extend the time for filing a Request for Reconsideration. Moreover, insofar as the property was sold before the Request for Reconsideration was even made, I do not see how the sale of the property is relevant to the inquiry.

35In all of the circumstances, I am persuaded that the time limit for the filing of the Reconsideration request ought to be lengthened so as to permit the respondent’s February 2011 Request.

Directions

36The respondent’s Request for Reconsideration of the Tribunal’s January 28, 2010 Decision is granted and the Complaint will be heard de novo. At the hearing, the complainant and the respondent will have an opportunity to testify and to have their representatives make submissions on the issues in the Complaint.

37The Tribunal will schedule a conference call with the parties to address the procedure for rehearing the Complaint. The parties are directed to review the Tribunal’s Rules of Practice for Commission-referred Complaints (available online at www.hrto.ca under Commission-referred Complaints) before the conference call, and to be prepared to make submissions on the appropriate procedure for rehearing the Complaint. The parties’ attention is drawn to the fact that where the Tribunal grants a Request for Reconsideration, it has a significant amount of discretion to determine a procedure for rehearing all or part of the matter (Rule 105(b)).

Mediation

38Mediation is one of the ways the Tribunal tries to resolve disputes. It is less formal than the hearing process and can achieve a resolution more quickly than a hearing.

39The parties to this Complaint have never had the opportunity to engage in the Tribunal’s mediation process because the respondent did not participate in the Tribunal process. Now that the respondent is involved in the proceedings, I would encourage the parties to consider whether they are willing to try mediation as a means of resolving the Complaint. The Tribunal will canvass whether the parties would like to attempt to resolve the Complaint with the assistance of a Tribunal-appointed mediator.