Silverberg v. Nixon Lau, 2016 HRTO 123

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sara Silverberg

Applicant

-and-

Nixon Lau and Valeri Motchenov

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 28, 2016

Citation: 2016 HRTO 123

Indexed As: Silverberg v. Nixon Lau

1A hearing in respect of this Application took place on October 26 and 27, 2015, at which time the applicant called her evidence. After the Tribunal scheduled further dates in this matter, the applicant brought a Request for an Order During Proceedings (“Request”) to (1) add a respondent; (2) replace the existing adjudicator; and (3) obtain a copy of the tenancy agreement between the two existing respondents.

2Neither of the existing respondents filed a Response to the Request. I would note that the applicant did not file a Statement of Delivery (Form 23) for this Request. In her email to the Tribunal, she does include Mr. Lau’s email address in the “Cc” line and it would appear that she has delivered her Request to him. However, she appears not to have copied the other respondent, Valeri Motchenov and the proposed respondent on her Request. I deal with the consequences of that failure below.

3More recently, the Tribunal received an email from Alex Adler, a paralegal, who advised that his firm had just been retained by the applicant. He requested an adjournment of the upcoming February 5, 2016 hearing because of a scheduling conflict. This Interim Decision also addresses this request for an adjournment.

Decision and analysis

Adjournment

4The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments provides states in part as follows:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

5While this Practice Direction refers to a Notice of Hearing, the sentiment expressed in it refers also to a Notice of Continued Hearing. This is particularly so, because the parties were consulted on their availability. When a party has been given adequate notice of the hearing, it is their responsibility to ensure that they, and their representatives, are available and able to proceed on those dates. Last minute retention of a representative does not constitute exceptional circumstances. When retaining a representative, it is a party’s obligation to ensure that the person retained is available on the dates set out for the hearing.

6The request for an adjournment of the February 5, 2016 is therefore denied.

Recusal

7The applicant asks that I be replaced by another adjudicator. This is, in essence, a request that I recuse myself for bias. If successful, such a request would mean that the hearing would have to start afresh before another adjudicator, since the new adjudicator would not have been present for the first two days of evidence. The Tribunal will address this issue at the outset of the resumption of the hearing on February 5, 2016. In the meantime, the applicant is directed to deliver a copy of her Request to Valeri Motchenov, by sending it to his last-known email address.

8The parties should be prepared to proceed with calling their evidence and making final argument in the event that the hearing is not adjourned.

Adding a Respondent

9The applicant seeks to add another respondent, namely Mr. Motchenov’s partner. This request must fail. As noted above, the hearing has proceeded for two days, over which I have heard the applicant’s evidence and one of the other respondent’s witness. At this juncture, it would be unfair and a breach the rules of natural justice to add a respondent, who has not been given an opportunity to: (1) hear this evidence; (2) object to the introduction of some or all of it; and (3) cross-examine the witnesses.

10In the event that I recuse myself, the hearing will have to start afresh before another adjudicator, at which point, the applicant would be in a somewhat better position with respect to her request to add a respondent. However, I cannot rule on this request after recusing myself. That is, if there is to be another hearing because I have recused myself, I would be functus with respect to this and all other matters associated with this Application.

Disclosure

11The applicant seeks the lease between the two respondents. She has not explained why it is arguably relevant in her Request, but on the face of it, it may explain which of the two respondents was responsible for the remediation that applicant alleges was required in her rental unit. The respondent, Nixon Lau, is ordered to bring a copy of the lease to the continuation of the hearing on February 5, 2016.

Valeri Motchenov’s Failure to Participate

12Mr. Motchenov failed to attend the first two days of the hearing, and did not advise the Tribunal in advance that he would not be attending. Indeed, he has not communicated with the Tribunal in over two years and did not file any documents in advance of the hearing. Moreover, mail to the last known address for Mr. Motchenov has been returned to the Tribunal with the notation “moved,” “unknown” and “return to sender.”

13On November 14, 2014, the Registrar sent Mr. Motchenov an email, at the address he provided to the Tribunal, asking him to provide updated contact information. Mr. Motchenov did not respond to this email. All subsequent regular mail to him has been returned to the Tribunal.

14For a brief period in the late summer of 2015, emails being sent to the email address provided by Mr. Motchenov in his Response (Form 2) were being returned with the notation “unable to determine IP address for delivery.” However, more recent emails to him have been sent without any apparent delivery problems.

15Rules 1.13 of the Tribunal’s Rules of Procedure specifies that “a party must notify the Tribunal and all parties and their representatives, in writing, of any change in their contact information, as soon as possible.” It would appear that Mr. Motchenov’s failure to appear at the hearing and his failure to provide updated contact information are indications that he has chosen not to participate in these proceedings. However, until these proceedings are concluded, or Mr. Motchenov indicates that he does not wish to have documents and correspondence delivered to him, the parties are directed to send this material to Mr. Motchenov’s email address.

order

16In sum, I make the following orders/directions:

a. The applicant’s request to adjourn the February 5, 2016 hearing date is denied;

b. The applicant’s request to add a third respondent is denied;

c. The applicant’s request to have me recuse myself will be addressed at the outset of the February 5, 2016 hearing;

d. The parties are directed to be prepared to conclude the hearing in this matter on February 5, 2016 in the event that I do not recuse myself;

e. The respondent Nixon Lau is directed to bring the lease between him and the respondent Valeri Motchenov to the February 5, 2016 hearing;

f. The applicant is directed to deliver her November 30, 2015 Request for an Order During Proceedings (Form 10) to the respondent Valeri Motchenov via email as soon as possible after receipt of this Interim Decision; and

g. The respondent Valeri Motchenov is directed to provide to the Tribunal, and other parties, a mail and email address at which documents can be delivered to him, and to advise the Tribunal

whether he wishes to participate and/or be served with documents in this proceeding.