Ursula Potrzebowski v. Petr Holub, 2012 HRTO 184

Human Rights Tribunal of Ontario

Between:

Ursula Potrzebowski Applicant

-and-

Petr Holub Respondent

Interim Decision

Adjudicator: Sheri D. Price Date: January 24, 2012 Citation: 2012 HRTO 184 Indexed as: Potrzebowski v. Holub

Appearances

Ursula Potrzebowski, Applicant ) Self-represented Petr Holub, Respondent ) Self-represented

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code"), alleging that the respondent discriminated against and/or harassed the applicant with respect to employment on the basis of her Polish origins while he was a member of the board of directors of the condominium corporation where the applicant worked as a property manager.

2A hearing of the Application was scheduled for January 23, 24 and 25, 2012.

3The purpose of this Interim Decision is to provide reasons for my January 23, 2012 oral decision to adjourn the hearing and to provide directions to the parties about the next steps to be taken with respect to the Application.

Request to Adjourn

4On January 23, 2012, the applicant and the respondent attended at the Tribunal for the hearing. At that time, the respondent informed the Tribunal that he was prevented from participating in the hearing by the terms of a June 18, 2009 Order of the Ontario Superior Court of Justice (the "Order"). The Order orders the respondent, among other things, not to communicate with the applicant in any manner, directly or indirectly, in person or through electronic devices. The respondent indicated to me on January 23, 2012, that he did not believe that he could be in the same room as the applicant without breaching the Order. (It should be noted that the respondent did not enter the hearing room where the applicant was located on January 23, 2012 for this stated reason.) The respondent also indicated that he believed that the Order prevented him from participating in a teleconference hearing with the applicant. The respondent asked that the hearing be adjourned in the circumstances.

5The Order, a copy of which was provided to the Tribunal, appears to have been made on an interlocutory basis in the course of a civil action for slander, defamation, and the tort of interference with economic relations against the respondent by Wilson Blanchard Management Inc., the property management company which employed the applicant during the relevant time frame.

6The Order states that its terms are in effect until the trial of the above-noted civil action. The respondent indicated on January 23, 2012 that the civil action is still ongoing, that the trial has not yet occurred and that the Order is still in effect. The applicant, who is not the plaintiff in the civil action, had no direct knowledge of the status of the civil action or the Order.

7On the face of the Order, it appears that the respondent is prohibited from having any direct or indirect communication with the applicant, from looking at the applicant, and even from standing near her, among other things. The Order does not appear to provide for any exception to these prohibitions that would allow the respondent to communicate with the applicant for the purposes of this proceeding.

8Pursuant to the rules of natural justice, a respondent to a human rights application has the right to hear the arguments and evidence against him, so that he can respond with his own evidence and arguments. A respondent also has the right to object to evidence as it is tendered, on various bases. In addition, a respondent to a human rights application has the right to test the evidence against him by cross-examining the applicant's witnesses, including the applicant herself. All of this means that in order for a hearing of this Application to proceed, the parties need to be in the same hearing room. Also, in order for the respondent, who is self-represented, to exercise his right to cross-examine the applicant, he must be able to speak to her and look at her. Thus, the Order appears to prevent the respondent from doing many of the things that he needs to do in order to participate in the hearing of the Application.

9It is unfortunate that neither the respondent nor the applicant raised the matter of the Order prior to the commencement of the hearing. Given that the Order was issued in 2009, the parties, particularly the respondent, had ample opportunity to raise the Order's impact on the hearing of this Application well in advance of the hearing date.

10Nonetheless, since it seemed to me that the terms of the Order effectively prevented the respondent from participating in the hearing of the Application, in the interests of natural justice, I adjourned the scheduled hearing dates of January 23, 24, or 25, 2012 on January 23, 2012.

Next Steps

11The hearing of the Application cannot proceed unless and until the terms of the Order are either no longer in effect or have been varied by the Court so as to allow the respondent to communicate with the applicant and to be in her physical presence for the purposes of the hearing of this Application under the Code.

12It seems to me that responsibility for varying the Order lies with the applicant. I come to this conclusion because the Order appears to have been made for the benefit of the applicant, at least in part, and because the applicant was instrumental in obtaining the Order in the first place. (According to the materials filed with the Tribunal in this matter, the applicant's affidavit outlining the respondent's communications with her during the period from March 2009 to June 2009 formed the basis for Wilson Blanchard Management Inc.'s motion for interlocutory relief.)

13If the applicant wishes to proceed with her Application to the Tribunal, then, within 90 days of the date of this Interim Decision, the applicant should seek to have the Order varied by the Ontario Superior Court of Justice so as to allow the respondent to participate in the hearing of the Application before the Tribunal. The respondent is directed to co-operate with the applicant's efforts to have the Order varied to allow for his participation in the hearing of the Application.

14The applicant is directed to inform the Tribunal and the respondent, in writing, that she has succeeded in having the Order varied within ten (10) days of doing so. At that time, the applicant should enclose documentation that confirms that the Order has been varied so as to allow the respondent to participate in the hearing of the Application.

15Upon receipt of such written confirmation and documentation from the applicant, the Tribunal will reschedule the hearing in this matter.

16If the applicant fails to comply with the above-noted directions within the time frames identified above, then her Application may be dismissed by the Tribunal as abandoned.

17I am not seized.