HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ian Ramadhin
Applicant
-and-
Krishnaveni Chavali
Respondent
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Ramadhin v. Krishnaveni Chavali
1This is an Application filed on July 21, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to housing because of sex, sexual orientation, family status and reprisal. The applicant was a tenant and the respondent a landlord. Amongst other allegations, the applicant alleges that respondent made a number of comments about his sexual orientation, including that he could not continue to reside in his apartment, and that eventually he was evicted from his apartment. The respondent filed a Response, to which a number of documents were attached, denying the allegations.
2This Interim Decision addresses the respondent’s failure to comply with the Tribunal’s directions such that the Tribunal now orders that the respondent is unable to present any documents and call any witnesses in the remainder of the hearing.
background
3The applicant on his Application and the respondent on her Response indicated that they were agreeable to participate in the Tribunal’s mediation services, which are voluntary. A mediation date was scheduled for May 16, 2011 pursuant to a Notice of Mediation dated April 7, 2011. On May 16, 2011, the applicant attended the mediation, but the respondent did not. Accordingly, the mediation could not commence and the matter was placed in the queue to be scheduled for hearing.
4A Notice of Confirmation of Hearing, dated January 13, 2012, was sent to the parties scheduling the hearing for July 18, 2012 at 9:30 am. This Notice was sent by regular mail to the respondent’s address as identified on both the Application and the Response as well as to the applicant. An Amended Notice of Confirmation of Hearing (To Reflect Correct Hearing Date), dated June 21, 2012, was sent to the parties at the same addresses advising that a typographical error had been made on the previous Notice and that the hearing date was actually July 20, 2012, commencing at 9:30 am. The Amended Notice also stated that if the parties were unavailable for this date, they should make a rescheduling request within 14 days of the Amended Notice. Neither party advised the Tribunal that they were unavailable and the Notices were not returned to the Tribunal.
5Prior to the hearing, and as neither party had complied with their disclosure obligations with respect to documents and witnesses (Rules 16 and 17 of the Tribunal’s Rules of Procedure), the Tribunal issued a Case Assessment Direction dated June 19, 2012 (“the June CAD”), which was sent to the respondent by regular mail. It was not returned to the Tribunal. In the June CAD, the Tribunal alerted the parties to the fact that they had failed to comply with their obligations under Rules 16 and 17, advised that there are serious consequences if these obligations are not met, and directed the parties to immediately comply. The applicant subsequently complied with the directions in the June CAD, but the respondent did not.
6The hearing commenced on July 20, 2012 at 9:30 a.m. As the respondent had not arrived at this time, but the applicant had, I held down the hearing for 30 minutes in accordance with its usual practice. When the respondent still had not arrived, I commenced the hearing at 10:00 a.m. The respondent, and her husband, Reddy Chavali, who is representing the respondent, arrived at the hearing at 10:32 a.m. and indicated that they wanted to participate in the hearing.
7Following a brief recess, I issued the following oral ruling:
The hearing in this matter was scheduled to commence at 9:30. However the respondent and her representative did not attend at 9:30 and the Tribunal held down the start of the hearing until 10:00. When the respondent and her representative still did not attend, the hearing commenced and the applicant’s evidence commenced. As of 10:00, the Tribunal had not heard from the respondent and in fact the respondent had not communicated with the Tribunal since she filed her Response to the Application. At 10:32, the respondent and her representative entered the hearing room and requested to participate in the hearing notwithstanding that they have not complied with their Rule 16 and 17 disclosure obligations and they indicated that they have several witnesses to call, although their witnesses are not present today, and have advised that they did not know that the matter was scheduled for hearing today. The applicant submits that the respondent should not be permitted to participate as she has disregarded the Tribunal’s communications and directions, including not attending a mediation that was scheduled in 2011.
On the facts of this case, I have determined that as the respondent has attended, she can participate and given that the applicant has testified for half an hour, he will be required to start his evidence again. I note that in making this direction, the respondent did attach various documents to her response. With respect to the issue of witnesses, it seems that the Tribunal will need to hear from the respondent herself and from the respondent’s description of the proposed evidence of her witnesses, they may not be relevant to the issues raised in the Application.
8After issuing this oral ruling at 11:15 a.m., Mr. Chavali advised that they had another hearing scheduled that day at 1:30 p.m. in Markham. He advised that they would need to leave the Tribunal hearing to attend the Markham hearing, and that they would need to give themselves enough time to go home to pick up their materials for the Markham hearing and then travel to Markham. The Markham matter, Mr. Chavali submitted, was a continuation hearing before a Justice of the Peace about a fire code violation. Mr. Chavali suggested that the Markham continuation date was set after learning about the Tribunal hearing. At 11:50 a.m., I gave the respondent and Mr. Chavali a 15 minute break to contact those involved in the Markham hearing and to make arrangements to adjourn that hearing. The Chavalis returned at 12:24 p.m. and Mr. Chavali advised that they were willing to forego with the Markham hearing and participate in the Tribunal hearing. With that the applicant’s examination-in-chief recommenced. The hearing adjourned for lunch at 1:25 p.m. and I stated that it would resume at 2:15 p.m. The respondent and Mr. Chavali did not return until 2:40 p.m., without an explanation for their delay, and I advised them that if they did not return on time, the hearing would proceed in their absence.
9As the hearing day concluded without the applicant’s cross-examination being finished, I canvassed the parties’ availability for further hearing dates, including August 17, October 25 and 30, 2012, and advised that a continuation of hearing notice would be issued to the parties, under separate cover, setting out the dates on which the hearing is to be continued. On July 25, 2012, a Notice of Confirmation of Hearing was issued to the parties advising that the hearing would continue on August 17 and October 25, 2012.
10Before the end of the hearing, I raised the fact that the respondent had not provided the applicant or the Tribunal with her documents and witness statements and orally directed the respondent to do so. I also raised the possibility of a section 45.1 of the Code issue and stated that I would hear submissions from the parties on this issue during their final submissions. Further, I discussed the Tribunal’s mediation-adjudication services with the parties, and provided them both with a copy of the Mediation-Adjudication Agreement when both parties indicated that they were agreeable to participate in it. I stated that I would issue a CAD directing the respondent to file her documents and witness material, setting out the section 45.1 issue and requiring the parties to file their signed mediation-adjudication agreement prior to the next hearing date.
11Subsequent to the hearing, a CAD dated July 30, 2012 (“the July CAD”) was issued. In addition to addressing the section 45.1 of the Code issue and the Mediation-Adjudication agreement, the Tribunal specifically addressed the issue of the respondent’s failure to comply with her Rule 16 and 17 disclosure obligations, both of which were reproduced within the body of the July CAD.
12The Tribunal specifically ordered, at paras. 7 to 9:
The respondent is directed to send to the applicant and file with the Tribunal within one week of this Case Assessment Direction any further documents upon which she intends to rely at the hearing, including any that she attached to her Response.
Further, the respondent is directed to send to the applicant and file with the Tribunal within one week of this Case Assessment Direction a list of witnesses that she intends to call, as well as a summary of their anticipated evidence. As the Tribunal stated during the hearing, it would expect that the respondent herself testify as a number of the allegations are about her personally.
The respondent is warned that continued failure to follow the Tribunal’s directions will result in the respondent being unable to present any documents and call any witnesses in the remainder of the hearing.
13The July CAD was sent to the respondent by regular mail and courier and has not been returned to the Tribunal.
14As of the date of this Interim Decision, the respondent has not filed any further documents, provided a list of witnesses or a summary of their anticipated evidence or otherwise communicated with the Tribunal. She has not returned a signed Mediation-Adjudication Agreement, although the Tribunal’s mediation-adjudication services are voluntary and not imposed on parties.
analysis
15Section 23(1) of the Statutory Powers Procedure Act, R.S.O, 1990, c. S. 22, as amended, provides the Tribunal with the power to “make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes”. Rule 1.7(v.1) of the Tribunal’s Rules similarly provides that “in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may … make such orders or give such directions as are necessary to prevent abuse of its processes and ensure that the conduct of participants in Tribunal proceedings is courteous and respectful of the Tribunal and other participants”.
16An application to the Tribunal is a legal proceeding. The parties to these proceedings are expected to make their best efforts to comply with the Tribunal’s Rules and directions with a view to ensuring a fair, just and expeditious proceeding. The respondent has been made aware on three occasions that she has not complied with her disclosure of documents and witness obligations, has been directed to comply with these obligations, and has been warned about the consequences of non-disclosure. Despite this, she has not complied with these directions and her conduct, subsequent to filing a Response, has been disrespectful towards the Tribunal and its processes, including arriving at the hearing an hour after it was scheduled to commence, advising that she and her representative would have to leave the hearing to attend to another legal proceeding, and even returning back into the hearing room 20 minutes after the expiry of their 15 minute break and 25 minutes after the end of the lunch break.
17In his Application, and in response to the question “Other Important Information the Tribunal Should Know”, the applicant wrote, “Landlord has a Supreme Court sanction against litigating others”. In reviewing www.CanLII.org, it appears that the respondent and Mr. Chavali have been involved in a number of legal proceedings as plaintiffs and appellants before different levels of courts, including the Ontario Court of Appeal, the Federal Court of Appeal and the Supreme Court of Canada, for some of which Mr. Chavali is the representative. Given their level of involvement in the administration of justice, it is not unreasonable to infer that they understand the necessity of compliance of timelines and directive as ordered by a court or administrative tribunal.
18The respondent’s failure to comply with the Tribunal’s directions and processes is not a trivial matter. The right of the parties participating in this process to have some level of disclosure of the other party’s case is central to a fair, just and expeditious adjudication of this matter. The respondent has shown a pattern of conduct that demonstrates a lack of respect for, and is abusive of, the processes established by the Tribunal. In other Tribunal cases in which a party has not complied with the Tribunal’s directions, has been disrespectful or abusive to its processes, the Tribunal has issued consequences to that party, including dismissing an Application (Felix v. Global Payments of Canada GP, 2011 HRTO 1983, Ouwroulis v. New Locomotion, 2009 HRTO 1498); and deeming a respondent to have waived all rights to participate and accept all allegations (Rocha v. Pardons and Waivers of Canada, 2012 HRTO 1490).
19Accordingly, and further to the July CAD, the respondent will not be able to present any documents, except for those attached to her Response, and she will not be able to call any witnesses, including herself, for the remainder of the hearing. She can conclude her cross-examination of the applicant.
20The hearing will resume on August 17, 2012.
Dated at Toronto, this 13^th^ day of August, 2012.
“Signed by”
Alison Renton
Vice-chair```