R.J. Potomski v. The Corporation of the City of Windsor and Windsor Essex Community Housing Corporation, 2016 HRTO 602

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.J. Potomski

Applicant

-and-

The Corporation of the City of Windsor and Windsor Essex Community Housing Corporation

Respondents

DECISION

Adjudicator: Brian Cook

Date: May 5, 2016

Citation: 2016 HRTO 602

Indexed as: Potomski v. Windsor (City)

APPEARANCES

R.J. Potomski, Applicant

No one appearing

The Corporation of the City of Windsor and Windsor Essex Community Housing Corporation, Respondents

Kyla Fair and David McNevin, Counsel

Introduction

1This Application alleges discrimination with respect to housing because of receipt of public assistance, and age, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application was scheduled for a telephone conference call hearing on May 3, 2016. The applicant failed to appear. For the reasons that follow, the Application is dismissed because the applicant has abused the Tribunal’s process.

Background

3The applicant named two respondents, the Corporation of the City of Windsor (“The City”) and St. John’s Anglican Non-Profit Corporation (“St. John’s”).

4A Response was received from Windsor Essex Community Housing Corporation (“WECHC”). The Response advised that WECHC was the organization that is responsible for administering requests for community housing such as the request that the applicant made that generated the Application. A separate Response was received from St. John’s.

5The Responses from the respondents indicated that the applicant had applied for rent geared to income housing at St. John’s. Shortly before his application for housing, St. John’s had changed its eligibility rules in order to come into compliance with rules established by the Ministry of Housing, and that applicants now had to be 65 or over. St. John’s had a waiting list at the time it made this change which included people who were under 65. These people were “grandfathered” meaning that they were allowed to stay on the waiting list. After the applicant complained that his application had not been accepted, he too was added to the waiting list as he had made the application shortly after the rules changed.

6On the basis of the information from the parties, the Tribunal determined that it was necessary to hold a summary hearing to determine if the Application should be dismissed as having no reasonable prospect of success. A Case Assessment Direction dated November 13, 2015 directed that a summary hearing by telephone conference call would be held.

7The applicant subsequently sent a number of communications to the Tribunal. One of his concerns was the proper identification of the parties. The applicant noted that the Application had named the City of Windsor as respondent but that the City had not itself filed a Response. He argued that WECHC was a separate legal entity and had no proper status in respect of the Application. Counsel for WECHC explained that counsel was representing WECHC and the City of Windsor. The applicant also expressed various concerns about the way the Tribunal had processed his Application.

8The Tribunal was then advised by the applicant and St. John’s that the Application as against St. John’s was withdrawn. The Tribunal closed the file with respect to St. John’s.

9On May 2, 2016, counsel for St. John’s advised that the applicant had served a Contravention of Settlement Application (Tribunal Form 18) on St. John’s although it had not been filed with the Tribunal. The Registrar advised counsel that she could call into the hearing and the extent of any participation would be determined by the Vice-chair.

10In a Case Assessment Direction dated April 18, 2016, I confirmed that the summary hearing would proceed on May 3, 2016 as scheduled. I advised that the agenda for the summary hearing would include clarification of the issues in the Application and clarification of the appropriate respondent. As well, it would be an opportunity for the applicant to explain his concerns with the Tribunal’s process or the way his Application has been dealt with.

11The applicant subsequently asked that the hearing be adjourned and the Application be deferred until he had an opportunity to seek Judicial Review of unspecified matters. In a Case Assessment Direction dated April 29, 2016, the applicant was advised that this was not a reason to adjourn the hearing or defer the Application and that the hearing would proceed. He was further advised that if he failed to participate in the telephone conference call hearing, the Application may be dismissed as abandoned or because of abuse of the Tribunal’s process.

12On the morning of May 3, 2016, the applicant sent a Request for Reconsideration asking that the hearing scheduled for 1:30 that day be canceled on the basis that the applicant had made an appearance in Court asking the Court to intervene in the process although the Court had declined to do so on the basis of the information from the applicant. The Registrar advised the applicant that the hearing would proceed as scheduled.

13On May 3, 2016, at 1:30 in the afternoon, the hearing proceeded. Kyla Fair and David McNevin, counsel, were present. They advised that they were representing the City of Windsor and WECHC. Lena Vartanian, counsel, called in on behalf of St. John’s.

14The applicant did not call in and had not done so by 2:00 pm.

Clarification of the appropriate respondent

15Ms. Fair and Mr. McNevin were asked to clarify the relationship between the City of Windsor and WECHC. Counsel confirmed that they act for the City and WECHC. They noted that this has been confirmed to the applicant on several occasions. They referred to the original Response to the Application filed by WECHC, which noted that in May 2012, the City of Windsor entered into a service agreement whereby it delegated its responsibility for administering the Central Waiting List and the rent geared to income assistance program to WECHC, pursuant to the Housing Services Act, 2011, S.O. 2011, c. 6, Sched.1.

16Counsel confirmed that the original Response represented the Response of the City of Windsor and WECHC.

17Counsel confirmed that the WECHC is the organization that is responsible for responding to the allegations in the Application and that it would be appropriate for it to be added as a respondent to avoid any further confusion. I agree and the style of cause of the Application is amended accordingly.

18Ms. Vartanian confirmed that the Application had been withdrawn as against St. John’s. The Tribunal has not received a Contravention of Settlement Application from the applicant concerning St. John’s. St. John’s is no longer a respondent to this Application.

Abuse of Process

19In written submissions dated April 18, 2016, counsel argued that the Application should be dismissed as an abuse of process. The Case Assessment Direction of April 29, 2016 cautioned the applicant that the Application could be dismissed as an abuse of process if he failed to participate in the scheduled hearing.

20Rule A8.1 of the Common Rules of the Social Justice Tribunals of Ontario provides as follows:

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

21When the Tribunal first received the Application, it was not clear how the applicant had experienced any discrimination or infringement of his Code-protected rights. For that reason, a summary hearing was scheduled to determine if the Application should be dismissed as having no reasonable prospect of success. Rather than addressing that issue, the applicant has raised objections to various matters, mostly, it seems, concerning the issue of who the correct respondents to the Application are. In doing so he has engaged in a process that has consumed considerable Tribunal resources and resulted in significant costs for the respondents. He has continued to do this despite being told that he would have the opportunity to address his concerns at the scheduled hearing.

22The applicant has filed lengthy submissions, in which he has attempted to argue that the scheduled summary hearing should be canceled, based largely on the applicant's theories about the proper identification of respondents. He was advised that the hearing would continue but that he could raise these arguments at the hearing. He then submitted that the hearing should be deferred because he wished to pursue other legal avenues. He was advised that the hearing would not be deferred on that basis.

23The applicant was clearly and unequivocally told that the hearing on May 3, 2016 was proceeding and that he was expected to call into the hearing. He failed to do so.

24The applicant cannot seek to achieve the result of having the scheduled hearing not proceed by failing to attend. In the circumstances, I find that the applicant’s failure to attend the hearing represents an abuse of the Tribunal’s process, and I find that the Application should be dismissed on that basis.

Respondent’s request for order

25At the hearing, counsel for the City of Windsor and WECHC asked for an order that the applicant not be permitted to bring any further Applications against them without consent of the Tribunal.

26Rule A8.2 of the Common Rules of the Social Justice Tribunals of Ontario provides as follows:

Where the tribunal finds that a person has persistently instituted vexatious proceedings or conducted a proceeding in a vexatious manner, the tribunal may find that person to be a vexatious litigant and dismiss the proceeding as an abuse of process for that reason. It may also require a person found to be a vexatious litigant to obtain permission from the tribunal to commence further proceedings or take further steps in a proceeding.

27I find that it is not appropriate to consider the respondent’s request at this time because the applicant did not have notice of the request.

28The question of whether the applicant could be found to be a vexatious litigant could arise in future proceedings.

29The respondents also asked for an order awarding costs. I advised the respondents that the Tribunal does not have a rule that would permit an order awarding costs.

DECISION

30The Application is dismissed.