Elizabeth Balanyk v. Niagara Hospitality Hotels Inc., 2015 HRTO 1230

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Balanyk

Applicant

-and-

Niagara Hospitality Hotels Inc.

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: September 16, 2015

Citation: 2015 HRTO 1230

Indexed as: Balanyk v. Niagara Hospitality Hotels Inc.

WRITTEN SUBMISSIONS

Elizabeth Balanyk, Applicant

Self-represented

Niagara Hospitality Hotels Inc.,, Respondent

William Hayter, Counsel

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and age. This Interim Decision deals with requests for order made by both parties following the last half day hearing block held in this matter.

2Following the last hearing date, the Tribunal received a Form 10, Request for Order During Proceedings (“RFOP”), from the respondent seeking dismissal of the Application as an abuse of process and, in the alternative, direction from the Tribunal relating to a summons to appear concerning a former personal respondent in this matter or an order that the Application will be dismissed if the applicant makes any direct contact with the former personal respondent or his family.

3The respondent alleges that on December 2, 2014, the applicant engaged in harassing and intimidating conduct towards Vince Kerrio, formerly a personal respondent in this matter, and his family, during a ceremony during which Mr. Kerrio was being sworn in as a City Councillor following his re-election to that office. The ceremony was open to the public.

4The respondent alleges that rather than sitting down during the swearing in ceremony, there being ample seating available, the applicant paced back and forth at the back of the room, glaring at Mr. Kerrio and his family and that she told a third party that she had a “lawsuit” against Mr. Kerrio, despite the fact that he had been removed as a personal respondent to the Human Rights Tribunal of Ontario (“HRTO”) Application and no other legal proceedings involving the parties is underway.

5The respondent also argues that the applicant’s decision to call Mr. Kerrio as a witness is part of a pattern of vexatious and abusive conduct as it was made only after Mr. Kerrio was removed as a personal respondent in this matter. The respondent further argues that the manner in which the applicant is attempting to compel Mr. Kerrio’s attendance is harassing in nature.

6In addition to filing a response to the respondent’s RFOP (Form 11), the applicant also filed a request for order, asking for dismissal of the respondent’s RFOP because the style of cause was incorrect. She attached similar submissions made as part of the Form 11 to this Request for Order.

7The applicant opposes dismissal of the Application as an abuse of process and makes numerous arguments suggesting it is the respondent that is behaving in a vexatious, harassing and abusive manner.

8The respondent has filed a brief Form 11 in which it states that there is no basis in fact or law for the order sought by the applicant and points to the Form 10 as a further instance of abuse of the Tribunal’s processes by the applicant.

decision

9The Tribunal’s power to control its process arises from the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, as amended (“SPPA”) as well as the Tribunal’s Rules of Procedure (“Rules”). The following provisions are relevant to the Requests filed by the parties.

10Section 23(1) of the SPPA provides:

A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

11The following provisions of the Tribunal Rules are also relevant:

1.7 In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

(v.1) 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.

1.12 All written communications with the Tribunal, including e-mail correspondence, must be addressed to the Registrar, with a copy delivered to all other parties.

1.12.1 All materials filed with the Tribunal must be courteous and respectful of the Tribunal and other participants.

1.21.1 When a party has a representative, documents must be delivered to the representative.

12The Tribunal has commented on the responsibilities of parties appearing before it in several decisions. See, for example, Rosario v. Thunder Bay Police Services Board, 2013 HRTO 392 (“Rosario”); Felix v. Shoppers Drug Mart, 2010 HRTO 2179 (“Felix”); Ouwroulis v. New Locomotion, 2009 HRTO 335 at paras. 4-7; and Cochrane v. Workplace Safety and Insurance Board (“Cochrane”), 2010 HRTO 913 at paras. 8-9.

13In Cochrane, above, at paras. 8-9, the Tribunal stated as follows:

Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal’s process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.

It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal’s process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.

14Making insulting, abusive or discriminatory comments has been found to constitute an abuse of the Tribunal’s process, resulting in dismissal of an application or request for reconsideration. See, for example, Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667; Vizcaya v. University of Toronto, 2010 HRTO 916; Nouraghighi v. Toronto Catholic District School Board,2009 HRTO 2085.

15It is clear that the Tribunal has the power to make orders controlling the abuse of its process and ensuring that the Tribunal process is free from abusive comments by any participant.

16However, as the respondent has acknowledged, the Tribunal does not have general injunctive powers to restrain the conduct of parties in their general interactions with one another. See, for example, Felix, above, at para. 14 and Rosario, above, at para. 11 and 16.

17The respondent suggests that the circumstances in this case can be distinguished from those present in Felix and Rosario, as it is not seeking an injunction per se, and argues that there are some circumstances where the conduct is connected to the litigation before the Tribunal and to permit the applicant to continue in the circumstances would amount to an abuse of process. The respondent argues that this is such a case, given the connection between the conduct of the applicant and the participation of the parties in a proceeding within the Tribunal’s jurisdiction.

18I am mindful that the applicant has engaged in conduct during the hearing that has negatively impacted the fair, just and expeditious resolution of this Application. As the respondent points out, in a previous Interim Decision, I have made clear to the applicant that further outbursts or abusive conduct during the hearing or other aspects of the Tribunal’s processes may result in a dismissal of this Application.

19However, the alleged conduct of the applicant at an event unconnected to the Tribunal’s process, no matter how egregious, is not a matter within the mandate of this body. As the respondent is aware, the former personal respondent is able to pursue any complaint he may have about the conduct of the applicant at his swearing in ceremony with the appropriate authorities. The respondent’s request for an order dismissing this Application as an abuse of process is, therefore, denied.

20I will, however, make an order that the applicant refrain from seeking a summons from the Registrar requiring Mr. Kerrio to appear before this Tribunal as it is unnecessary for her to do so. Counsel for the respondent has provided an undertaking that he will ensure that Mr. Kerrio will be present and available to give evidence when required by the Tribunal. That is sufficient in the circumstances and, given the assurances provided by counsel, I am satisfied that Mr. Kerrio will attend when required.

21As Mr. Kerrio is the applicant’s final witness, two additional half days of hearing will be scheduled by the Registrar in consultation with the parties. Cross examination of the applicant will continue on the first of those dates. Mr. Kerrio will appear to give his evidence on the second of the two dates, following which the Tribunal will consider whether further cross-examination of the applicant is necessary.

22Finally, I take this opportunity to reiterate my previous reminder to the applicant that any further outbursts or abusive conduct during the Tribunal’s process may result in dismissal of this Application. In addition, over the course of the hearing, the applicant’s conduct has been highly disruptive and has resulted in unnecessary delays as she has, on a number of occasions, insisted on taking several lengthy pauses to reread materials filed in support of her own Application either by her former representative or by herself before answering simple questions. She is directed to familiarize herself with the materials filed in support of her own case before the next hearing date so the hearing can proceed more expeditiously.

23Further directions may be issued as necessary as the hearing proceeds.