Feliz v. Margaret Laurence Housing Co-operative, 2013 HRTO 873

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-Moffatt, Stephen English, Raymond Ouellet, March Smith, Napolean Muisa, Dumo Siziba, Lisa Forestell, Jodie Huber and Rick Pereira

Respondents

Reconsideration DECISION

Adjudicator: Ena Chadha Date: May 21, 2013 Citation: 2013 HRTO 873 Indexed as: Feliz v. Margaret Laurence Housing Co-operative

WRITTEN SUBMISSIONS

Yandira Feliz, Applicant

Self-Represented

Jodie Huber and Rick Pereira, Respondents

Karimjee Greene, Counsel

Margaret Laurence Housing Co-operative, Julie Murphy, Debbie August-Moffatt, Stephen English, Raymond Ouellet, March Smith, Napolean Muisa, Dumo Siziba and Lisa Forestell, Respondents

Luke J. Saites, Counsel

1This Application was filed on August 15, 2011, 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 on the basis of race, colour, disability and family status.

2The respondents filed Responses requesting that the Application be dismissed under s. 45.1 of the Code as being appropriately dealt with by the Ontario Superior Court of Justice in on-going eviction proceedings.

3On April 18, 2012, the Tribunal sent the respondents’ Responses and notice of the respondents’ requests to dismiss to the applicant care of the address provided by the applicant to be used for contacting her. The letter required the applicant to file submissions in response to the requests for dismissal.

4On May 15, 2012, the Tribunal’s materials were returned to the Tribunal as undeliverable. On May 18, 2012, the Tribunal attempted to contact the applicant and sent a letter to the applicant directing her to provide an up-to-date mailing address. The letter indicated that if the applicant failed to do so, the Application would be deemed as abandoned and the file closed.

5The Tribunal’s May 18, 2012 letter was not returned to the Tribunal. As a result, on June 13, 2012, the Tribunal issued Decision 2012 HRTO 1163 dismissing this Application as abandoned.

6It appears that, due to an administrative error, the applicant’s Reply, filed on June 8, 2012, was not before the Tribunal when it made its decision to dismiss the Application.

7On June 20, 2012, the applicant filed a request for reconsideration. The applicant asserts that there are new facts or evidence which were not available before and that she did not receive proper notice, namely that as a result of the alleged discrimination she was experiencing difficulties with respect delivery and access to her residential unit.

8The respondents filed responses opposing the reconsideration request. The respondents maintain that the Application was appropriately dealt with through the eviction proceedings before the Ontario Superior Court. In the alternative, the respondents also request a summary hearing of the Application.

Reconsideration

9Section 45.7 of the Code provides the Tribunal with authority to reconsider its decisions. Rule 26.5 of the Tribunal’s Rules of Procedure provides that 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.

10The applicant alleges that she did not receive the Tribunal’s materials as a result of her housing unit’s buzzer not functioning, which the applicant alleges is part of difficulties she has experienced with the respondents. The applicant provided copies of correspondence suggesting that she alerted the respondents to her concerns regarding the unit buzzer being out of service. The applicant indicates that she was in regular contact with the Tribunal.

11I find that it is appropriate to reconsider the decision dismissing the Application. The respondents do not dispute the applicant’s explanation for why she allegedly did not receive the Tribunal’s correspondence. It also appears that the applicant had filed a Reply on June 8, 2012 that was not before the Tribunal when it made its decision that the Application was abandoned.

12I find that the applicant did not receive notice of the Tribunal’s correspondence and that she was in contact with the Tribunal. I am satisfied that the applicant did not intend to abandon the Application. In my view, in the circumstances of this case, the issues of fairness flowing from the of lack of notice outweighs the public interest in the finality of Tribunal decisions.

Section 45.1 and Summary Hearing

13The request for Summary Hearing is granted. A teleconference hearing will be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

14The respondents assert that the legal proceedings before the Ontario Superior Court appropriately dealt with the substance of the Application. As such, the parties should also be prepared to address at the teleconference hearing the issue of whether the Application should be dismissed pursuant to s. 45.1 of the Code as requested by the respondents.

15Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

16Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

17The Registrar will schedule a half-day hearing by teleconference. The applicant will proceed first during teleconference. The applicant shall make argument about why some or all of the Application should not be dismissed as having no reasonable prospect of success and/or as having been appropriately dealt with by other legal proceedings.

18No witnesses will give evidence during the teleconference hearing.

19If the Tribunal determines that some or all of the Application has no reasonable prospect of success or was appropriately dealt with by the other legal proceeding, some or all of the Application will be dismissed. If the Tribunal does not find that all or parts of the Application should be dismissed under Rule 19A, it will continue in the Tribunal process.

20A notice of teleconference hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents, written submissions or case law they intend to rely upon no later than 14 days prior to the teleconference hearing.

21The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.

Outstanding Issues

22On May 22, 2012, the applicant filed a Request for an Order during Proceedings (“RFOP”) seeking to add another individual and corporate respondent as respondent parties to the Application. It is unclear whether or not the applicant provided this RFOP to the existing and proposed respondents as no Form 23 Statement of Delivery was filed with the Tribunal.

23Rule 1.12 of the Tribunal’s Rules of Procedure (“Rules”) requires that all written communications with the Tribunal must be copied to the other parties and, in accordance with Rule 1.23, a party responsible for delivering a document must confirm delivery to the other parties by filing a statement of delivery with the Tribunal.

24Given the Tribunal’s decision to first proceed with the issues of section 45.1 and no reasaonble prospect of success, the applicant’s RFOP will be considered, if necessary, at a later of stage of the Tribunal process.

25Pursuant to Rule 1.13 of the Tribunal’s Rules of Procedure, all parties are required to notify the Tribunal and other parties of any change in contact information.

26It is unclear whether or not the applicant has provided the Tribunal and the other parties with her current contact information. The applicant is directed to comply with Rule 1.13 and to promptly provide the Tribunal and other parties with her up-to-date contact information.

Orders

27The Tribunal orders as follows:

i. The reconsideration request is granted and the Tribunal will continue to process the Application;

ii. Within seven days of the date of this reconsideration decision, the applicant is required to write to the Tribunal, copied to all respondents, providing her current contact information, including postal delivery address and email address;

iii. The Registrar will schedule a half-day teleconference hearing to address the issues of whether some or all of the Application has been appropriately dealt with by other legal proceedings and/or whether there is no reasonable prospect of success and

iv. The parties shall deliver to each other and file with the Tribunal copies of any further documents, written submisions or caselaw they intend to rely upon no later than 14 days prior to the teleconference.

28I am not seized.