HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Godfred Hiamey
Applicant
-and-
Toronto Community Housing Corporation
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Hiamey v. Toronto Community Housing Corporation
APPEARANCES
Godfred Hiamey, Applicant
Self-represented
Toronto Community Housing Corporation, Respondent
Orna Raubfogel, Counsel
1This Application alleges discrimination with respect to housing contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) because the applicant is in receipt of social assistance. A preliminary hearing was held by telephone conference to address a number of issues. The Tribunal provided the services of a French-English interpreter to assist the parties.
Background
2The applicant entered into a market rent lease with the respondent in September 2008. In 2010, because he was in arrears of his rent, the applicant successfully applied for a temporary allowance program which subsidized his rent for a maximum period of 24 months. This subsidy ended in August 2012 and the applicant continued to be in arrears of his rent.
3The respondent eventually applied to the Landlord and Tenant Board (“LTB”) to evict the applicant from his rental unit. On March 4, 2013, the LTB issued a Consent Order in which the parties agreed, among other things, that the applicant owed rent and would pay $2,219.00 by February 28, 2013 and that the applicant would move out of the rental unit by no later than March 31, 2013. The applicant did not move out of the rental unit and the Sheriff enforced the applicant’s eviction on June 17, 2013.
4This Application was filed on September 15, 2014 over 15 months after the applicant’s eviction. The applicant takes the position that he does not owe the respondent any rent and that he should not have been evicted because he qualified for a subsidy pursuant to the City of Toronto Social Housing Guideline 2012-6 (the “Guideline”). The applicant says that this Guideline was hidden from him and that he did not know of its existence at the time that he resided in the rental unit.
5The Tribunal directed that a preliminary hearing would be held to determine whether, the Application should be dismissed in whole or in part, on the basis that it is untimely, has no reasonable prospect of success, and is an abuse of process.
Bias
6I must first address the applicant’s allegations that I am biased and racist. The applicant has sent correspondence to the Tribunal indicating that he does not wish that I (or indeed any other adjudicator who has ruled on his previous applications) be assigned to adjudicate this Application. He further requested that the preliminary hearing be held in a public room before all of the Tribunal’s adjudicators excluding myself and two other adjudicators who have previously dealt with his applications.
7The applicant told me immediately after I introduced myself during the preliminary hearing that I had ruined his life because of my previous decisions involving the dismissal of various applications that dealt with the termination of his employment. He also told me that he believes that I am bothered by the colour of his skin and that is why I rule against him. He told me that he had filed complaints against me and that he had initiated a judicial review of my decisions before the Ontario Divisional Court. I let the applicant speak about these issues for at least ten minutes. I orally ruled that I would not recuse myself and that I would address this issue in my decision.
8My reasons for refusing to recuse myself follow. An assigned adjudicator must always consider whether she can hear a matter fairly and with an open mind. There have been some key principles established by the case law. First, there is a strong presumption of judicial impartiality and integrity, and this has been extended to administrative tribunals and adjudicators: R. v. Brown, 2003 CanLII 52142 (ON C.A.), at paras. 37-39; Chainauskas Estate v. Reed, (2009), 2009 ONCA 572, 251 O.A.C. 209 (C.A.) at para. 12.
9Numerous decisions have noted that the protection against bias or a reasonable apprehension of bias is intended to uphold public confidence in the fairness of administrative agencies and their decision-making procedures, and thus requires both independence and impartiality. As the Supreme Court said in Valente v. The Queen, 1985 CanLII 25 (S.C.C.), at p. 685:
Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word "impartial" ... connotes absence of bias, actual or perceived. The word "independent" in s. 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government (…)
10In Committee for Justice & Liberty v. Canada (National Energy Board, 1976 CanLII 2 (S.C.C.), the Supreme Court established the test for finding bias:
[…] the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. ….that test is “what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think it is more likely than not that the [board member], whether consciously or unconsciously, would not decide fairly?
11Because the person whose perception is being tested must be reasonable, that reasonable observer is presumed to have some knowledge and understanding of the judicial (or administrative) process and the nature of decision-making (R. v. S. (R.D.), 1997 CanLII 324 (S.C.C.) at para. 31), not to have a “very sensitive…conscience” (R. v. S. (R.D.), at para. 37), and be informed of and consider the context surrounding the impugned behaviour (Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at para. 77; Marchand v. Public General Hospital Society of Chatham, 2000 CanLII 16946 (ON C.A.).
12I am of the view that a reasonably informed observer who has some knowledge of the Tribunal’s process would not find that I am biased in this case. The administrative processes include the right of any party to file a complaint against an adjudicator and to file judicial review applications. In this case the applicant has availed himself of both of these rights. However, if this would automatically result in the disqualification of an adjudicator, then a party could pick and choose their adjudicator by either simply filing a complaint or a judicial review. I note that the Tribunal has very limited resources at its disposal, especially in cases in which the matter requires the expertise of a bilingual adjudicator. A party cannot insist that they be assigned or not assigned a particular adjudicator.
13In this case, the applicant seeks to remove any adjudicator, including myself, who has had any involvement in his files. The basis for this request is that he is dissatisfied with the previous procedural and substantive decisions that have been made in the past. This is not a basis to have an adjudicator removed from a file.
14I have considered the applicant’s submissions and I remain of the view that I am not biased against him, for any reason including the colour of his skin and that I can adjudicate this matter fairly and with an open mind.
Conduct of the Hearing
15After the hearing commenced it became clear that the applicant was not listening to my instructions, was speaking over me and was unwilling to start the preliminary hearing. I told the applicant that there were two parties present and that the respondent’s representative had yet to introduce herself. I advised the applicant that he had the absolute right to make his objections but that I had ruled on them and that we needed to move on. I advised the applicant that we would take a five minute break and that, when we reconvened, he should be prepared to proceed with the preliminary hearing.
16When the parties reconvened after the five minute break, the applicant was respectful of my authority and we were able to continue the hearing in an orderly appropriate manner.
No Reasonable Prospect of Success
17The Tribunal explains the nature of summary hearings in the decision of 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.
18I find that the applicant has not articulated a theory of discrimination in this Application. In this case, the applicant alleges that he was evicted from the rental unit because he was in receipt of public assistance. I note that the applicant had been in receipt of public assistance for a number of years and was not evicted from the premises at that time. This respondent has made available a number of rental subsidies for individuals who are unable to pay their rent, and indeed are in receipt of public assistance. The applicant benefited from one of these subsidies for a period of two years. The applicant was evicted because he was in default of his rental obligations for a number of months. The Code does not require a landlord to continue to rent an apartment to a tenant who is unable to pay rent, whether they are in receipt of public assistance or not.
19The applicant relies on the fact that he believes that there was a Guideline in place at the time that would have entitled him to a rent subsidy. The Guideline refers to a number of conditions that a tenant must meet in order to be considered for the subsidy which includes that the tenant has been subject to a market lease for at least five years and is not in rent arrears. The applicant acknowledged that he did not meet either of these two conditions at the time but he believed that these conditions should have been waived by the respondent. I cannot understand the applicant’s insistence that he should have been allowed a subsidy under this Guideline when, on a plain reading of this document, it does not apply to him because he was in arrears of his rent and had not been in the market rental for five years.
20In light of the above I am of the view that the Application should be dismissed on the basis that it has no reasonable prospect of success.
Abuse of Process
21Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that this Tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. The respondent alleges that the Application is an abuse of process because the applicant seeks to relitigate the issue that was before the LTB.
22The Supreme Court of Canada summarized the doctrine of abuse of process in British Columbia (Worker’s Compensation Board) v. Figliola, (“Figliola”) 2011 SCC 52 at para 34:
At their heart, the foregoing doctrines exist to prevent unfairness by preventing “abuse of the decision-making process” (Danyluk, at para. 20; see also Garland, at para. 72, and Toronto (City), at para. 37). Their common underlying principles can be summarized as follows:
It is in the interests of the public and the parties that the finality of a decision can be relied on (Danyluk, at para. 18; Boucher, at para. 35).
Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings (Toronto (City), at paras. 38 and 51).
The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk, at para. 74).
Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision (TeleZone,at para. 61; Boucher, at para. 35; Garland, at para. 72).
Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources (Toronto (City), at paras. 37 and 51).
23Having considered the matter, I am of the view that it is an abuse of process for the applicant to initiate this Application. The LTB issued a Consent Order in which the applicant acknowledges that he owes rent to the respondent, that the rental tenancy would be terminated and that he would vacate the rental unit. This entire Application is premised on a contrary position that he does not in fact owe rent because he was entitled to a subsidy and he should not have been required to vacate his rental unit. This is completely contrary to the agreement of the parties that is reflected in the Consent Order.
24Though this agreement is not signed by the applicant, his agreement is reflected in the Consent Order, which I note the applicant has never sought to appeal or vary. In essence, the applicant is asking the Tribunal to vary the LTB’s Consent Order and find that the applicant does not owe the rent. This is a relitigation of the same issue that was before the LTB and a collateral attack on the LTB’s Consent Order. Assuming that the applicant is successful in this Application, there would be one order from this Tribunal finding that he does not owe the rent and the LTB Order saying that he does in fact owe the rent. Which order would prevail? This is exactly the type of mischief that the doctrine of abuse of process seeks to address and avoid.
25In these circumstances, I am of the view that the Application should also be dismissed on the basis that it is an abuse of process.
Delay
26The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 states:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
27The first issue that the Tribunal must determine is the date of the last incident of alleged discrimination. The Application indicates that the last incident of alleged discrimination occurred in June 2013. If I accept without deciding that the last incident of discrimination occurred on June 13, 2013, when the applicant’s eviction was enforced by the Sherif . I must now determine if there is a good faith explanation for the delay.
28The Tribunal has extensive case law which has addressed the issue of whether the delay in filing an application was incurred in good faith. An applicant must provide a reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. A reasonable explanation must substantiate that the applicant acted with all due diligence. See, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 and Pelletier v. Nortrax Canada, 2011 HRTO 1495.
29The applicant takes the position that he was not aware of the existence of the Guideline until July 2014 and that is why he did not file the Application within one year of the last incident of discrimination. He found out about this document when he overheard two people talking about it. Once again I note that this Guideline does not apply to the applicant because he was not in the rental unit for a period of five years and he was in arrears of his rent. Regardless, I am of the view that, had the applicant made diligent enquiries about his rights, he could have located this Guideline within one year of his eviction. In light of this, I am of the view that the applicant has not established a good faith in the delay in filing the Application.
30The Application is also dismissed because it is untimely.
Order
31For all of the above reasons, the Application is dismissed.
Dated at Toronto, this 17th day of September, 2015.
“Signed By”
Geneviève Debané
Vice-chair