Villella v. Regional Municipality of York Emergency Medical Services Branch, 2011 HRTO 25

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jessey Villella

Applicant

-and-

The Regional Municipality of York Emergency Medical Services Branch, Ben Thompson and Joseph Neumayer

Respondents

A N D B E T W E E N:

Jessey Villella

Applicant

-and-

The Regional Municipality of York Police Services Board and Vernon Ward

Respondents

A N D B E T W E E N:

Jessey Villella

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care

Respondent

DECISION

Adjudicator: Dale Hewat

Date: January 5, 2011

Citation: 2011 HRTO 25

Indexed as: Villella v. Regional Municipality of York Emergency Medical Services Branch

APPEARANCES

Jessey Villella, Applicant ) No one appearing

The Regional Municpality of York ) Emergency Medical Services Branch ) Stephen Maio, Counsel and Joseph Neumayer , Respondents )

The Regional Municipality of York ) Police Services Board and ) Stephen Maio, Counsel Vernon Ward, Respondents )

Ministry of Health and ) Beth Beattie, Counsel Long-Term Care, Respondent )

INTRODUCTION

1These are three Applications filed under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), all dated June 29, 2009. The underlying complaints were all filed with the Ontario Human Rights Commission (the “Commission”) on June 28, 2007.

2The Applications all allege discrimination because of race, ethnic origin, creed and sex in the provision of services, arising out of an incident on January 1, 2007, where the applicant sustained injuries from an altercation at a New Year’s Eve party.

3This matter was scheduled for a hearing on November 16, 2010, to deal with a number of preliminary issues including a request for early dismissal of these Applications for failure to establish a prima facie case against any of the respondents, abuse of process and dismissal pursuant to s. 45.1 of the Code on the basis that the Applications have been appropriately dealt with in another proceeding.

4The applicant failed to attend the hearing on November 16, 2010. Counsel for each of the respondents made submissions that the Tribunal should dismiss these Applications as abandoned. The respondents also argued that the Tribunal should not only dismiss the Applications for abandonment but also should find that the applicant’s representative has conducted himself in such a way as to constitute an abuse of process.

5At the hearing I dismissed the Applications as abandoned with reasons to follow and advised that I would consider the submissions on abuse of process. The following are my reasons for dismissing all of the Applications.

BACKGROUND

6Prior to the hearing on November 16, 2010, these matters were the subject-matter of a number of Interim Decisions and correspondence from the Tribunal addressing preliminary matters. In order to understand the reasons for dismissing these Applications it is helpful to review the series of events following a Case Assessment Direction issued by the Tribunal on August 23, 2010. The following is a chronology of Tribunal decisions leading up to the November 16, 2010 hearing.

7On September 2, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 1810 (the “September Interim Decision”), which dismissed the Application against the Ministry of Health and provided case management directions for the hearing of the remaining Applications. The September Interim Decision confirmed that the hearing on November 16, 2010, would be used to address the preliminary matters in the other Applications and included timelines for the filing by the applicant (no later than September 24, 2010) of his statement of material facts including an explanation of why he believes he was subject to discrimination. In addition, the respondents were ordered to provide submissions on the requests for early dismissal of the Applications by October 8, 2010, to which the applicant could respond by October 22, 2010. The respondents were directed to provide any reply to the response by October 29, 2010.

8By letter dated September 20, 2010, the Tribunal advised the parties that it intended, on its own initiative, to reconsider the September Interim Decision dismissing the Application as against the Ministry on the basis that it appeared to be inconsistent with the Tribunal’s Case Assessment Direction dated August 23, 2010. The parties were invited to make submissions on the reconsideration.

9By letter dated September 27, 2010, the Tribunal clarified that the timelines set out in the September Interim Decision remained in effect and were to be complied with by the parties.

10On October 19, 2010, the Tribunal issued its Reconsideration Decision, 2010 HR TO 2110, which set aside the decision to dismiss the Application against the Ministry as the decision had been made without providing an opportunity for oral submissions. The Reconsideration Decision went on to confirm the November hearing date remained in effect and stated at paragraph 11 that “all other matters addressed in my Decision, and in particular the timelines set out for completion of various case management matters, remain in effect and are to be complied with by the parties.”

11The applicant did not file a material statement of facts as directed by the Tribunal. Instead, on October 14, 2010, the applicant requested an adjournment of the November 16, 2010 hearing claiming that the Tribunal had initially notified the parties that the hearing date was for November 6, 2010, and that, in any event, the applicant’s representative was not available “because of another legal proceeding that day”. In response to this request, the Tribunal sought further information from the applicant to clarify the reasons for the adjournment request but none was given.

12The parties were advised on October 14, 2010 that the adjournment request was denied with reasons to follow. The Interim Decision providing reasons for refusing to adjourn was issued November 1, 2010: see 2010 HRTO 2183.

13On October 22, 2010, in response to an email from the applicant the previous day, the Tribunal granted an extension to the parties for the filing of materials. In doing so the Tribunal specifically reminded the applicant that Rule 3.3 of the Tribunal’s Rules of Procedure for Transitional Applications provides:

Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal my refuse to consider the material, or may take any other action it considers appropriate.

The deadline for the applicant to file his statement of material facts was extended to October 29, 2010. The respondents were given until November 3, 2010, to file any further submissions on their preliminary objections and the applicant was directed to provide a response by November 10, 2010, with reply by the respondents due no later than November 14, 2010.

14Despite this last extension of time, the applicant did not file either his material statement of facts or his response to the respondents’ preliminary objections. Rather, the applicant sent numerous emails and correspondence to the Tribunal alleging Vice-chair Hart was in a conflict of interest with respect to the September Interim Decision and the Reconsideration Decision and continued to question the date of the hearing and the specified timelines for the filing of his submissions.

15The applicant was advised by the Tribunal that issues concerning conflict of interest would be addressed by the adjudicator assigned to the hearing on November 16, 2010.

16On October 29, 2010, the applicant filed a second request for an adjournment on the basis that he was seeking an Order that Vice-chair Hart recuse himself from these Applications due to a conflict of interest and that he would be asking the Tribunal to quash all prior decisions issued by Vice-chairs Muir and Hart. The applicant also stated that he would be requesting an adjournment of the November 16, 2010 hearing pending oral arguments on these requests.

17In response, the Tribunal issued a further Case Assessment Direction, dated November 2, 2010, requiring the applicant to file written submissions by November 9, 2010, in support of his allegations, request for an adjournment and the request to quash. The Case Assessment Direction also provided that the issues raised by the applicant in his correspondence of October 29, 2010 may be raised by him at the outset of the hearing on November 16, 2010. Furthermore, the parties were also directed to be prepared to make oral submissions in respect of the other preliminary matters raised by the respondents, at the discretion of the Member presiding at the hearing on November 16, 2010.

18Despite this last Case Assessment Direction, the applicant did not provide submissions to the Tribunal as directed. Instead, the applicant wrote to the Tribunal on November 9, 2010, regarding concerns with how his complaint about Vice-chair Hart was being handled.

19The Tribunal wrote to the applicant again on November 10, 2010, noting that it had not received his submissions as ordered and reminded him of the consequences under the Tribunal’s Rules for failing to comply.

20On November 15, 2010, the applicant filed a third request to adjourn the hearing. The basis for the applicant’s request cited a new allegation that he had filed a complaint with the Law Society of Upper Canada alleging misconduct by the solicitor for two of the named respondents, that he intended to seek reconsideration of the Tribunal’s recent decisions, his allegations of conflict of interest had not been properly addressed and, on this basis, the hearing should be adjourned.

21The Tribunal denied the adjournment request in Interim Decision 2010 HRTO 2267 dated November 15, 2010. The Interim Decision went on to note the applicant had failed to comply with the direction to deliver materials setting out the basis for his conflict of interest allegations as set out in the November 2, 2010 Case Assessment Direction.

ANALYSIS

22The Tribunal has commented on the responsibilities of parties appearing before it. In Ouwroulis v. New Locomotion, 2009 HRTO 335, at paras. 4-7, the Tribunal stated as follows:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

23The Tribunal’s Rules requiring disclosure and production also support the objectives of a fair, just and highly expeditious process. The Tribunal has dismissed applications where the Tribunal is satisfied that the applicant had notice of the hearing and failed to attend. See, for example, Noronha v. Castillo, 2009 HRTO 856; Kaczmarczyk v. FAG Aerospace, 2009 HRTO 667; McCombs v. Osprey Media Group, 2009 HRTO 669; Hall v. Southern Ontario Waste, 2009 HRTO 816.

24The Tribunal also has the power, pursuant to s. 23 (1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”), to make such orders or give such directions in proceedings before it as it considers proper to prevent abuses of its process.

25In Okunbor v. Hopewell Logistics, 2009 HRTO 2124, the Tribunal dismissed an Application not only for abandonment but also on the basis of abuse of process as a result of the continued failure of the applicant’s representative to comply with Tribunal deadlines.

ABANDONMENT

26In this matter, the applicant and his representative had notice of the hearing and were reminded on a number of occasions in correspondence, Case Assessment Directions and Interim Decisions both that the hearing would commence on November 16, 2010 and it would address the respondents’ requests for early dismissal of the Applications. Even if an earlier notice advised that the hearing was scheduled for November 6, 2010, that typographical error was corrected long before November 16, and in any event, the correct date was reconfirmed for the parties by the Tribunal’s September 27, 2010 letter.

27The reconsideration of one aspect of the September Interim Decision expressly did not affect or change the November 16, 2010 hearing date.

28What is also evident is that the applicant, who has been represented throughout by John Villella, a paralegal licensed by the Law Society of Upper Canada, failed to comply with the Tribunal’s Case Assessment Directions, and Interim Decisions requesting submissions in support of his Application and the other issues raised by him and the respondents despite numerous reminders and an extension of time to permit him to do so. The Tribunal warned the applicant of the consequences of failing to comply. The applicant’s three adjournment requests were denied. It was clear that he was expected to attend the hearing on November 16, 2010, if he wished to pursue and continue with the Applications.

29All of the respondents were in attendance at the November 16, 2010 hearing and were ready to proceed. I am satisfied that, in light of all of the opportunities and extensions of time give to the applicant, his failure to file materials as directed and his absence from the hearing is evidence of abandonment. For these reasons, I am satisfied that the Applications were abandoned and I have dismissed them on this basis.

ABUSE OF PROCESS

30The respondents submit that the course of conduct assumed by applicant’s representative was an abuse of process and should also be a reason for the dismissal of these Applications. Having reviewed the chronology of events outlined in this Decision and considering the applicant’s unexplained absence at the Hearing on November 16, 2010, I agree that the applicant’s representative’s conduct constituted an abuse of process within the meaning of s.23 of the SPPA and that the Applications should also be dismissed on this basis.

31In this case, the applicant’s representative ignored orders by the Tribunal, beginning with one of the most basic and important steps in pursuing an application, which is to provide a material statement of facts and explanation in support of a claim of discrimination. Moreover, he sought an extension for time to file and still failed to provide this information and also never provided a response to the preliminary objections to dismiss these Applications, again despite seeking and being granted an extension of time to comply.

32The applicant’s representative also unsuccessfully sought to adjourn the hearing three times, providing different reasons each time. Throughout the period normally used for hearing preparation, he attempted in a variety of different ways to avoid or delay proceeding with the Applications. The Tribunal responded to each request. He was invited to provide his submissions and pursue his concerns about conflict of interest and other issues at the hearing. He was specifically warned of the consequences of failing to comply with the Tribunal’s Rules.

33As noted in Okunbor, supra, at paragraph 14:

The Tribunal, and in particular the transition process, has been set up to provide Ontarians with a fair, just and highly expeditious process for the resolution of human rights disputes. However, as the Tribunal noted in Ouwroulis access to the Tribunal’s process and resources comes with responsibilities. In particular it is incumbent on the applicant to comply with the Tribunal’s Rules and orders and to do so within the times set by the Tribunal.

34I find that this pattern of conduct was directed to avoiding or delaying the November 16, 2010 hearing and was not made for any other proper purpose. The applicant, through his representative, engaged the Tribunal and opposing counsel in responding to arguments that shifted the focus away from processing these Applications in a fair, just and expeditious manner.

35It is also significant to note that this is not a case of a self-represented party without experience in the Tribunal’s processes. John Villella is a Paralegal, governed by the Law Society of Upper Canada and its Rules of Professional Conduct, and is familiar with the Tribunal’s Rules, requirements and jurisprudence. He is aware of the responsibilities that follow in pursuing a claim of discrimination. As stated in Ouwrolis, “an applicant who does not respond to Tribunal directions risks having the application dismissed.” While the applicant and his representative may not have been in agreement with the Tribunal’s decisions to proceed with this hearing, their failure to appear at the hearing showed a lack of professional responsibility, fairness, courtesy and respect to the Tribunal and the respondents.

36Accordingly, the Applications are dismissed.