HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cindy Welykyi Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

Z.K. by his next friend T.S. Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

William Bowerman Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

T.S. Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

Mimi Marilyn Gow Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

Betty Jarvis Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

Elsie Biloki Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

Debora Crew Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

Harold (Mike) Large Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

The Estate of Rae Fuller Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: December 22, 2014 File Numbers: 2012-12293-I; 2012-12442-I; 2012-12444-I; 2012-12445-I; 2012-12622-I; and, 2012-12295-I Citation: 2014 HRTO 1813 Indexed as: Welykyi v. Rouge Valley Co-operative Homes Inc.

APPEARANCES

Cindy Welykyi, T.S., Z.K., Mimi Marilyn Gow, Debora Crew, Harold (Mike) Large, William Bowerman, Betty Jarvis, Elsie Biloki, and the Estate of Rae Fuller, Applicants

Karen Sanchez, Counsel

Rouge Valley Co-operative Homes Inc. / Board of Directors, Respondent

Kiel Ardal, Counsel

1These Applications are filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and allege discrimination with respect to occupancy of accommodation. Many of the allegations in the Applications concern the posting of offensive messages at the organizational respondent’s premises. The Applications also allege that the respondent’s efforts to identify the individual(s) responsible for posting the messages and prevent further postings were inadequate.

2By Interim Decision dated March 27, 2013, 2013 HRTO 519, the Tribunal consolidated these Applications, and by Interim Decision dated April 22, 2013, 2013 HRTO 667, the Tribunal denied a Request for Interim Remedy. In an Interim Decision dated May 24, 2013, 2013 HRTO 892, the Tribunal granted requests to increase the damages requested in several of the Applications. In Interim Decision 2013 HRTO 1119, dated June 25, 2013, the Tribunal granted requests to include the ground of reprisal to several of the Applications.

3The hearing of these Applications is scheduled for January 5, 6 and 7, 2015.

Request to Bifurcate

4This Interim Decision addresses a Request for Order During Proceedings (“RFOP”) filed by the respondent on December 3, 2014. The respondent seeks an order from the Tribunal bifurcating, or dividing, the hearing into two stages. The first stage would be limited to hearing evidence and submissions on the issue of liability, i.e., whether the respondent’s conduct amounts to a violation of the applicants’ Code rights. The second stage would involve hearing evidence and submissions regarding the appropriate remedy, assuming the Tribunal found that the respondent violated the applicants’ human rights after the first stage.

5First, the respondent submitted that the applicants have requested a wide range of unusual and complex remedies, including intrusive measures regarding the management of the respondent, evictions and orders requiring the involvement of the police. The respondent also noted that several of the applicants have requested unusually high amounts of monetary compensation. The respondent submitted the Tribunal has bifurcated hearings in other cases involving unusual and or complex remedies in order to ensure efficient and focussed hearings.

6Second, the respondent submitted that upon review of the witness statements provided by the applicants, it appears that only two of the applicants’ witnesses are expected to give evidence regarding liability issues, and that it appears that the evidence of the other seven witnesses will be restricted to the issue of remedy. The respondent submitted that it is unnecessary for the other seven witnesses to testify unless the Tribunal first determines that the applicants’ human rights have been violated.

Applicants’ Response

7The applicants filed a Response to a Request for an Order on December 5, 2014 in which they oppose the respondent’s request. The applicants submitted that the facts and issues in the Application are interrelated and that it would be difficult for the applicants to present their evidence in the manner suggested by the respondent. The applicants submitted that the applicants have the right to present their case in a manner that logically corresponds with the events that occurred and the discrimination they experienced. In any event, the applicants submitted that all of the applicants will testify regarding the events in question and, who, in their view, should have acted to stop the discriminatory postings and to prevent such behaviour in the future. Accordingly, the applicants submitted that all of their witnesses will testify on the issue of liability. The applicants filed amended witness statements on December 15, 2014 that reflect the applicants’ submission that all of the applicants are expected to give evidence related to the issue of liability.

8The applicants submitted that several of them suffer from serious disabilities that cause mobility restrictions and require special transportation accommodations. The applicants submit that it would be an undue burden to require them to attend to give evidence twice.

9The applicants take issue with the respondent’s position that the remedies the applicant request are unusual or complex. The applicants submitted that they are simply seeking damages for the respondent’s failure to address the harassment and discrimination experienced by the applicants and to order some public policy remedies to prevent future breaches of the Code. The applicants submitted that they are not seeking some of the remedies described in the respondent’s request.

Further Correspondence

10The respondent filed a letter purporting to reply to the applicants’ Response to a Request for an Order on December 12, 2014 and the applicants filed a letter purporting to reply to the respondent’s reply letter, also on December 12, 2014. The Tribunal's Rules of Procedure (the “Rules”) do not provide for Reply submissions regarding a RFOP (See Rule 19). Accordingly, I expect that the parties will not file Reply submissions with respect to any future Requests for Orders that may arise in this matter unless the Tribunal requests such submissions or grants leave to file them. Having said that, I have reviewed the reply submissions, and they did not alter my disposition of the respondent’s request.

Analysis and Decision

11Pursuant to section 43(3) of the Code the Tribunal may make rules governing the practice and procedure before it and Rule 1.7 of the Rules authorizes the Tribunal to determine and direct the order in which evidence will be presented. Accordingly, the Tribunal may bifurcate hearings in appropriate cases, and has done so on several occasions. However, I am not persuaded that there is any compelling reason in this case to depart from the general practice of hearing all of the evidence in relation to liability and remedy at the same time.

12Notwithstanding the applicants’ submissions, review of the Applications reveals that the applicants have requested all of the unusual/intrusive remedies described in the respondent’s request. These remedies include removing individuals from the respondent’s Board of Directors, evictions and directions regarding police involvement. To be sure, many of these remedies are unusual and there may be a question of whether they come within the Tribunal’s remedial jurisdiction that is restricted to compensatory measures, assuming the applicants are successful in establishing liability. However, these requested remedies appear to arise out of the applicants’ allegations that the respondent did not do enough to address the harassment and discrimination experienced by the applicants. This is a liability issue, regarding which both parties will present evidence. Accordingly, it does not appear that additional evidence will be required regarding these potential remedies if the applicants continue to pursue them at the hearing. The other evidence going to the issue of remedy will be the applicants’ testimony regarding the effect the alleged harassment and discrimination had on each of them. This is important evidence, but the applicants’ witness statements do not suggest that this testimony will add significantly to the hearing. It is not at all unusual for applicants to request very high damage awards, as some of the applicants in these matters have, but I do not consider this to be a relevant consideration in assessing whether bifurcation is appropriate.

13The applicants expect to present eleven witnesses, including all of the applicants, who are expected to testify regarding liability issues, which is confirmed by the amended witness statements the applicants filed. The respondent expects to present three witnesses. In these circumstances, it seems highly unlikely that all of the expected witnesses will be able to testify in the three hearing days scheduled – even if the hearing is bifurcated – and continuation dates will be required. In my view, bifurcation would not result in a more expeditious hearing and is therefore not appropriate in this case.

Order

14The request to bifurcate the hearing is denied.

Case Management

15I take this opportunity to advise the parties that I will offer the parties Mediation/Adjudication, pursuant to Rule 15A of the Rules, at the commencement of the hearing, as is my normal practice. I would be grateful if the parties would consider whether they are willing to attempt Mediation/Adjudication prior to the hearing.