Feliz v. Margaret Laurence Housing Co-operative, 2013 HRTO 1509

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yandira Feliz

Applicant

-and-

Margaret Laurence Housing Co-operative, Julie Murphy, Debbie August-Moffat, Stephen English, Raymond Ouellet, Mark Smith, Napoleon Mulsa, Dum Siziba, Lisa Forestell, Jodie Huber, and Rick Pereira

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: September 6, 2013

Citation: 2013 HRTO 1509

Indexed as: Feliz v. Margaret Laurence Housing Co-operative

APPEARANCES

Yandira Feliz, Applicant ) No one appearing

Margaret Laurence Housing Co-operative, ) Julie Murphy, Debbie August-Moffat, ) Stephen English, Raymond Ouellet, ) Luke J. Saites, Counsel Mark Smith, Napoleon Mulsa, Dum Siziba, ) and Lisa Forestell, Respondents )

Jodie Huber and Rick Pereira, ) Kumail Karimjee, Counsel

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), but failed to appear for a summary hearing. After hearing oral submissions from the respondents, I issued an oral decision dismissing her Application with written reasons to follow. The following are my reasons.

BACKGROUND

2The organization respondent is a non-profit housing cooperative. The applicant was a member of the cooperative and lived in a unit in the building. The individual respondents are members, Directors of the Board (the "Board"), and/or staff of the cooperative.

3On October 8, 2010, the organization respondent served the applicant with a Notice of Eviction decision by the Board, which terminated her membership and occupancy rights effective November 7, 2010, and a further decision, which stated that the enforcement of the eviction decision would be cancelled if the applicant agreed to sign a performance agreement. The applicant did not sign a performance agreement, but appealed the eviction decision.

4On November 18, 2010, the Board passed a motion to adjourn the discussion of the appeal to allow for further negotiation of a performance agreement. On July 29, 2011, the organization respondent set a deadline of August 5, 2011 for the applicant to sign and return a performance agreement. The applicant did not sign and return a performance agreement.

5On August 15, 2011, the applicant filed an Application with this Tribunal under s. 34 of the Code, which alleged that the respondents discriminated against her with respect to housing because of her race, colour, disability, and family status.

6On September 1, 2011, the Board passed a motion, which upheld the eviction decision and terminated her membership and occupancy rights effective September 11, 2011. The applicant failed to vacate her unit by September 11, 2011, and continued to occupy it.

7On November 11, 2011, the organization respondent filed a Notice of Application with the Ontario Superior Court of Justice (the "Superior Court") for orders, among other things, declaring that the applicant's membership and occupancy rights are terminated, for a writ of possession (eviction of all occupants), and for costs.

8On February 29, 2012, the applicant filed a Responding Application Record with the Superior Court, which alleged, among other things, that the respondents were discriminating against her. She attached a copy of her human rights Application to the Record.

9On March 30 and April 5, 2012, the respondents filed Responses to the Application before this Tribunal, which requested, among other things, that the Application be dismissed on a preliminary basis because its subject matter is being dealt with in the proceeding before the Superior Court and it has no reasonable prospect of success.

10On May 23 and June 8, 2012, the applicant filed a Reply to the Responses and a Request for an Order During Proceedings, which made new allegations of discrimination, and sought to add the property management company and a manager whom the organization respondent had a contract with as respondents.

11On June 13, 2012, the Tribunal issued a Decision, 2012 HRTO 1163, which dismissed the Application as abandoned because materials that had been sent to the applicant were returned to the Tribunal as undeliverable, the Tribunal was unable to contact the applicant at the telephone number that she had provided, and the applicant failed to respond to correspondence from the Tribunal requesting her current address and telephone number.

12On September 20, 2012, the Superior Court issued a Judgment, which, among other things, declared that the applicant's membership and occupancy rights were terminated effective September 11, 2011, ordered that a writ of possession (eviction of all occupants) be issued, and ordered that the applicant pay the organization respondent $20,000 in costs. The applicant subsequently appealed the Judgment to the Divisional Court.

13On March 6, 2013, the Divisional Court issued an Order, which dismissed the appeal for delay, and ordered the applicant to pay the organization respondent $750 in costs. The applicant subsequently filed a motion before the Divisional Court to set aside the Order.

14On May 21, 2013, this Tribunal issued a Reconsideration Decision, 2013 HRTO 873, which reconsidered its June 13, 2012 Decision dismissing the Application as abandoned because it found that the applicant did not receive notice of the Tribunal's correspondence, and that she was, in fact, in contact with the Tribunal. The Reconsideration Decision also directed the parties to attend a summary hearing to address whether the Application should be dismissed, in whole or in part, because some or all of the Application has been appropriately dealt with by other legal proceedings and/or it has no reasonable prospect of success. The Reconsideration Decision also directed the parties to deliver to each other and file with the Tribunal copies of any further documents, written submissions or case law that they intend to rely upon no later than 14 days prior to the summary hearing.

15On May 22, 2013, the Divisional Court issued an Order, which dismissed the applicant's motion to set aside the Order dismissing her appeal. In its reasons, the Court noted, among other things, that no materials had been filed by the applicant, and that she had failed to appear at the hearing of her motion. The Court also ordered the applicant to pay the organization respondent $10,000 in costs.

16On June 10, 2013, the Tribunal issued a Notice of Summary Hearing to the parties, which informed them that a teleconference hearing was scheduled for September 6, 2013 from 9:30 AM to 12:30 PM. The Notice directed the parties to call a phone number and enter a conference identification number, both of which were provided in the Notice. The Notice also warned the parties that if they failed to attend the hearing, the Tribunal may take a number of steps, including dismissing the Application if the applicant failed to attend.

17On June 24, 2013, the applicant sent an email to the Tribunal, which confirmed that she had received the Notice of Summary Hearing. On August 20, 2013, the applicant sent the Tribunal a further email, which requested an extension of time until August 30, 2013 to submit her documents for the summary hearing. On August 21, 2013, the Tribunal granted the applicant's request. However, the applicant did not file any documents by August 30, 2013 or between August 30, 2013 and the date of the summary hearing.

18On September 6, 2013, the respondents called into the conference call at the time that was set out in the Notice of Summary Hearing, but the applicant did not. The Tribunal's standard practice where a party does not attend is to confirm in the Tribunal's file that the Hearing Notice was sent to the missing party at the address provided, and wait half an hour. If the party is still not present, the Tribunal proceeds in the party's absence without further notice to that party. Where the applicant is not present, this will generally lead to the dismissal of the Application. See Edward v. Moda at Home, 2009 HRTO 568 at para. 2.

19I confirmed that the Notice of Summary Hearing was sent to the applicant and that she received it, waited half an hour, and heard oral submissions from the respondents. The respondents requested that the Application be dismissed because the applicant received notice of the hearing, but failed to appear, and they have incurred significant costs in responding to the Application and participating in the process before the Tribunal. I then dismissed the Application.

ANALYSIS

20The applicant commenced a legal proceeding when she filed this Application with the Tribunal. It is the applicant's responsibility to attend the summary hearing and make submissions. In the absence of such submissions, the Tribunal is unable to proceed with the Application and there is no onus or responsibility on the respondents to provide submissions in response.

21Furthermore, the Tribunal has a duty to dispose of applications fairly, justly and expeditiously. See section 40 of the Code and Rule 1.1 of the Tribunal's Rules of Procedure. This duty is not only in relation to applicants, but also in relation to respondents, who may expend significant resources responding to human rights Applications, and to the public, whose tax dollars fund the Tribunal. In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated at paras. 4-7:

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.

22The respondents, who constitute a non-profit housing cooperative, have expended significant resources responding to the Application, and participating in the process before this Tribunal, including preparing for and attending the summary hearing. The Tribunal has also expended significant resources processing the Application, and scheduling and holding a hearing. Unlike the process before the Divisional Court, where the applicant also failed to file materials and appear for a hearing, the respondents are unable to recover any costs resulting from the process before this Tribunal because this Tribunal has no jurisdiction to award costs. See Dunn v. United Transportation Union, Local 104, 2008 HRTO 405. In these circumstances, it would not be fair, just and expeditious to reschedule the summary hearing.

ORDER

23The Application is dismissed.