HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Potomski
Applicant
-and-
Alexander Menzies
Respondent
A N D B E T W E E N:
Kit Cheung
Applicant
-and-
Robert Potomski
Respondent
A N D B E T W E E N:
Robert Potomski
Applicant
-and-
Alexander Menzies, Kit Cheung, and Robert Kenney
Respondents
INTERIM DECISION
Adjudicator: Bruce Best
Indexed as: Potomski v. Menzies
WRITTEN SUBMISSIONS
Robert Potomski
Self-represented
Kit Cheung
Svetlana Sevillano, Representative
Alexander Menzies, Respondent
Shawn Weston, Representative
Robert Kenney, Respondent
Danny Brandoff, Representative
1This Interim Decision addresses a number of issues in three related Applications before the Tribunal. The parties in the various Applications are as follows:
Applicant
Respondent(s)
Affected Person
2015-20391-I
Robert Potomski
Alexander Menzies, Kit Cheung
2015-20990-I
Robert Potomski
Alexander Menzies
2015-22283-I
Kit Cheung
Robert Potomski
Alexander Menzies
2016-23744-I
Robert Potomski
Alexander Menzies, Kit Cheung, Robert Kenney
2Application 2015-20391-I was consolidated with 2015-20990-I by an earlier order of the Tribunal, 2015 HRTO 1092, but was subsequently withdrawn by Mr. Potomski on consent. It is, however, relevant to the present matters, as Mr. Potomski’s subsequent Applications are alleging reprisal for his having commenced Application 2015-20391-I.
3A one-day hearing has been set for June 14, 2016 in Windsor in file 2015-20990-I. This hearing date will proceed as scheduled and will address issues in all three Applications, as set out below.
4This Interim Decision will address the following matters:
A)
The Tribunal’s proposal to consolidate or hear together Applications 2015-20990-I, 2015-22283-I, and 2016-23744-I
B)
Request to dismiss Application 2015-22283-I under Code s.34(11), or proposal to defer under Code s.45
C)
Requests for extension of time to file Responses in 2016-23774-I
D)
Production of documents and witness statements in 2015-20990-I
E)
Requests to declare Robert Potomski a vexatious litigant
A) Proposal to consolidate or hear Applications together
5The parties to all three Applications (“the parties”) were advised that the Tribunal intended to consolidate or process the Applications together, and invited submissions from the parties. Mr. Potomski did not file any submissions. All other parties advised the Tribunal that they did not oppose the matters being consolidated or heard together.
6In my view, the issues, parties and evidence that may be called in the three Applications are sufficiently related that it is appropriate for the Applications to be heard and processed together. However, though there is clear overlap between Application 2016-23744-I and the other two Applications, the issues in 2015-20990-I and 2015-22283-I are quite distinct from each other, and it may not be appropriate to consolidate all three Applications at this time.
7The issue of whether the Applications should be consolidated, and, if so, how, will be determined at the hearing in Windsor on June 14, 2016.
B) Request to dismiss Application 2015-22283-I
8In a Response (Form 2) filed on April 20, 2016, Mr. Potomski asked the Tribunal to dismiss Application 2015-22283-I on the basis that Ms. Cheung has brought an action in small claims’ court which also addressed issues arising out of incidents in the workplace. He provided a copy of the statement of claim issued on October 8, 2015, and a copy of a request to note him in default for failing to file a statement of defence. His submissions stated in full “Abuse of process; submitting sames [sic] issues in two different forums. for adjudication; Respondent denies any and all allegations.”
9Ms. Cheung was given until May 11, 2016 to make submissions on the request. Both Ms. Cheung and Mr. Potomski were also given, at the direction of the Tribunal, until May 11, 2016 to provide submissions on whether Application 2015-22283-I should, if not dismissed, be deferred pending the conclusion of the small claims’ court action.
10Ms. Cheung filed written submissions arguing that Application 2015-22283-I should not be dismissed as it has a different factual background than the action, in particular that the action and the Application are based on different incidents.
11The action is based entirely on incidents of physical contact in the workplace from 2013 to the fall of 2014 where she alleges Mr. Potomski would touch her clothes, hair or hand while purporting to help her fix problems with her computer. It also included an incident on February 14, 2015, where Ms. Cheung alleges Mr. Potomski physically pushed her out of a room and slammed a door in her face. In the action, she is seeking damages of $15,000 based on the tort of battery, an amount which Ms. Cheung argues is reasonable based on the Ontario Court of Appeal decision Piresferreira v. Ayotte, 2010 ONCA 384 which ordered $15,000 as damages for battery for a single incident very similar to the incident of February 14, 2015.
12Ms. Cheung does specifically indicate in the statement of claim that she felt that she was being sexually harassed by the unwanted touching. She has, however, not made a claim under Code s.46.1 based on this allegation. She further submits that even if she had, it would not trigger Code s.34(11) because these incidents were not raised in the Application, and in fact could not have been raised because the last incident occurred more than one year prior to her filing her Application, and as such would have been out of time under Code s.34(1).
13She further indicates that she made a deliberate choice to pursue the allegations of unwanted touching as an action for battery rather than as a Code claim of sexual harassment because of the lower evidentiary burden required for the former. To be successful under the Code, she would have to both prove that the incidents in question happened, and that they were related to her gender. To be successful in the action, she must merely establish that they happened.
14None of the incidents which form the basis in the action are included in Application 2015-22283-I. Rather, the factual basis for the claims in the Application are a series of alleged demeaning comments that occurred from 2012 until October 2014 about her marriage, about gender and ethnic stereotypes, and an incident in December 2014 where Mr. Potomski was allegedly “making fun” of her accent and English communication skills. In the Application, she is seeking damages of $30,000, an apology, and an order that Mr. Potomski undergo training in human rights.
15She further submits that given that the factual issues to be determined are different, there is no basis to defer Application 2015-22283-I, as there is no danger of inconsistent findings of fact.
16Mr. Potomski did not provide any further submissions.
Decision on dismissal / deferral
Dismissal under s.34(11)
17Section 34(11) states:
34.(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,
(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or
(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.
18As noted in Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para 10:
Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.
19The Tribunal has generally held that an overlap of the factual foundations alone would not in and of itself be sufficient to bar an application. Where the alleged violations and legal theories raised in the proceedings are distinct, and the remedies sought do not intersect, the Tribunal has consistently held that s.34(11) does not apply. See Taylor v. Fastenal Canada Ltd., 2012 HRTO 1067 at para. 10, Roycroft v. Premier Salons Ltd., 2013 HRTO 573 at paras. 22-24, Manradge v. Calvary House (Markham) Corporation, 2013 HRTO 799 at paras. 13-14, and St. Louis v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1637 at paras 9-10.
20In the present case, the only overlap between the allegations in the action and those in Application 2015-22283-I is that they all occurred in the same workplace between the same individuals. However, there is no overlap between the specific incidents; the factual foundations are not the same. Furthermore, the legal basis for the action and the Application are quite distinct. Ms. Cheung is not seeking an order in the action with respect to any infringement under the Code; the action is based strictly on common law causes of action.
21The case law is clear that s.34(11) is limited to eliminate duplicative proceedings. Given that in the present case the factual and legal foundations for the two proceedings are not the same, I find that Application 2015-22283-I is not barred by s.34(11).
Abuse of Process
22Mr. Potomski’s Response also raised abuse of process as a basis for dismissing Application 2015-22283-I. It is true that Ms. Cheung could, under s.46.1, have included in her statement of claim the allegations she has raised before the Tribunal. The fact that it was available to her to do so, however, does not make her choice to pursue some incidents at the Tribunal and other incidents in small claims’ court an abuse of process.
23There may be valid legal reasons for pursing the issues separately. As noted above, Ms. Cheung raised the fact that there is a higher evidentiary burden for establishing a Code claim than a civil claim arising out of the same facts. A claim under s.46.1 could also presumably be raised in an action up to two years after the claim arose, whereas an application to the Tribunal under s.34 would generally have to be raised within one year.
24Another reason is the different remedies available. Ms. Cheung, for example, is seeking an order in Application 2015-22283-I requiring Mr. Potomski to undergo training in human rights. The power of the Tribunal to order such a remedy arises under s.45.2(1)3, commonly referred to as a “public interest” remedy. As there is no common law tort of discrimination, see Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), the court’s power to award a remedy for a breach of the Code is limited by what is in the statute. Code s.46.1(1) does not give a court the power to order public interest remedies.
25In my view, there is no basis for the claim that the filing of both the small claims’ court action and Application 2015-22283-I is an abuse of process.
Deferral
26Though in my view it is clear that s.34(11) does not apply in the present case, it may nonetheless still be appropriate to defer consideration of Application 2015-22283-I pending the outcome of the action. The question is whether there is a danger of inconsistent findings of fact should the two matters proceed at the same time.
27Ms. Cheung submits that there is no such danger, given that the two proceedings are dealing with different allegations and different incidents.
28Mr. Potomski did not make any submissions on deferral.
29The following passage from Baghdasserians v. 674469 Ontario, 2008 HRTO 404 is often referred to by the Tribunal in determining whether it is appropriate to defer, at paras 17-19:
The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative (Rule 14.1).
Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.
30It is possible that there may be some overlap with respect to the evidence that could be presented in the two proceedings, given that the allegations in both are about the relationship between Mr. Potomski and Ms. Cheung in the workplace. However, because the incidents forming the basis of the claims are different, it is unlikely that any overlap will be with respect to issues central to either claim. In my view, there is not sufficient potential for inconsistent findings of fact central to either proceeding, and as such it is not appropriate to defer.
Next Steps in Application 2015-22283-I
31Mr. Potomski first received a copy of Application 2015-22283-I in November 2015. He has filed a number of submissions seeking procedural orders, and two Responses seeking dismissal or deferral on the basis of other proceedings, and despite numerous directions to do so from the Tribunal, he has not filed a Response to the substance of the allegations beyond the one sentence “Respondent denies any and all allegations” which was included in the Response filed on April 20, 2016.
32Ms. Cheung has also filed two Requests to amend Application 2015-22283-I to add incidents of reprisal and to increase the monetary remedy sought. Mr. Potomski did not respond to the first request within the timeframe required under the Rules.
33Though Mr. Potomski has had ample opportunity to respond to the substance of the allegations over the past 7 months, given my findings above I am prepared to give him a brief additional time period to respond. Mr. Potomski shall file a Response to the substance of the allegations in Application 2015-2283-I, including the additional allegations raised in the two Requests to Amend, by May 27, 2016. If he fails to do so, the Tribunal may take any of the steps listed in Rule 5.5 of the Tribunal’s Rules of Procedure.
C) Request for Extension of Time to file Responses in 2016-23774-I
34Mr. Kenney is a party only to Application 2016-23774-I, and as such has asked that he be provided with copies of files 2015-20990-I and 2015-22283-I prior to filing his response, as the allegations against him are related to the issues raised in those Applications. In my view, it is appropriate to provide Mr. Kenney with copies of the files, and to give him additional time to file his Response to May 27, 2016.
35Mr. Menzies has also requested an extension of time to file his Response to Application 2016-23744-I. As he is a party to 2015-20990-I, he already familiar with the underlying facts. He is not, however, a party to 2015-22283-I, though he has been named as affected party by Mr. Potomski. Mr. Menzies was previously given until May 20, 2016 to file his Response to 2016-23744-I. However, I am prepared to extend that time to May 27, 2016.
36Ms. Cheung filed a Response to Application 2016-23744-I, in which she denied the allegations, and further sought to have that Application dismissed as against her.
37Mr. Potomski is entitled to file a Reply in order to make submissions on any new issues raised by the Respondents in Application 2016-3744-I, including the request to dismiss the Application as against Ms. Cheung.
38If Mr. Potomski wishes to file a Reply to any of the Responses for Application 2016-23744-I, or respond to any preliminary issues raised by any of the respondents, he shall do so by June 6, 2016.
39The Request to dismiss Application 2016-23744-I against Kit Cheung will be addressed at the hearing on June 14, 2016.
d) Production of documents and witness statements in 2015-20990-I
40Mr. Menzies has filed a Request for an Order requiring Mr. Potomski to provide his arguably relevant documents in Application 2015-20990-I. Mr. Potomski has not responded to this Request, nor has he filed a Form 23 confirming that he has delivered his arguably relevant documents to Mr. Menzies.
41The Tribunal, in its letter of May 3, 2016, indicated that the parties to Application 2015-20990-I were not required to file their documents or witness statements as required under Rules 16.2, 16.3 and 17 until otherwise directed by the Tribunal. The letter also reminded the parties that they were still required to comply with Rule 16.1 if they had not already done so. Mr. Menzies had, at that point, already filed his documents and witness statements. Mr. Potomski had not, nor had he filed a Statement of Delivery indicating that he had provided his arguably relevant documents to Mr. Menzies in accordance with Rule 16.1.
42I direct Mr. Potomski to now comply with the requirements of Rules 16 and 17 with respect to Application 2015-20990-I.
43By no later than May 27 2016, Mr. Potomski must deliver to Mr. Menzies and file with the Tribunal: (1) a list and copy of the documents he intends to rely upon at the hearing in Application 2015-20990-I, (2) a list of his witnesses; and (3) a brief statement describing what his witnesses will say when they testify.
44Furthermore, if Mr. Potomski has in his possession any other arguably relevant documents that he does not intend to rely on at the hearing with respect to the allegations in Application 2015-20990-I, he must also deliver them to Mr. Menzies by May 27, 2016 (and file a Statement of Delivery with the Tribunal).
45Mr. Potomski is reminded that he must also deliver and file a witness statement for himself, assuming he intends to testify at the hearing. However, if he only intends to testify about the facts already contained in his Application and Reply, and is not intending on calling any other witnesses, it is sufficient for him to confirm this in writing with the Tribunal and Mr. Menzies by May 27, 2016.
46If Mr. Potomski has not complied with these directions by May 27, 2016, or communicated with the Tribunal at all, Application 2015-20990-I may be dismissed as abandoned.
E) Requests to declare Robert Potomski a vexatious litigant
47Ms. Cheung has also asked the Tribunal, in both Applications 2015-22283-I and 2016-23744-I, to find Mr. Potomski a vexatious litigant. Mr. Potomski did not respond to the first request within the timeframe required under the Rules. However, though the request is essentially the same, it was restated in Application 2016-23744-I, and I am prepared to give Mr. Potomski a further opportunity to respond at this time.
48Mr. Potomski is given until June 6, 2016 to reply to the request that he be declared a vexatious litigant.
49The request to declare Robert Potomski a vexatious litigant will be addressed at the hearing on June 14, 2016.
Orders and directions
50The request to dismiss Application 2015-22283-I under s.34(11) is refused.
51Alexander Menzies shall file his Response to Application 2016-23744-I by May 27, 2016.
52Robert Kenney shall file his Response to Application 2016-23744-I by May 27, 2016.
53Robert Potomski shall, by May 27, 2016:
a. In Application 2015-22283-I file his Response, including his Response to the two Requests to Amend.
b. In Application 2015-20990-I deliver to Alexander Menzies and file the documents on which he intends to rely on at the hearing, along with his list of witnesses and witness statement or statements, in accordance with Rules 16 and 17.
c. In Application 2015-20990-I, Deliver to Alexander Menzies any additional arguably relevant documents in his possession that he does not intend to rely on at the hearing.
54Robert Potomski may, by June 6, 2016:
a. File his Reply, if any, to the Responses in Application 2016-23744-I, including the Request to dismiss the Application as against Kit Cheung, and any other preliminary issues raised by any of the respondents.
b. File submissions on the requests to declare him a vexatious litigant.
55At the hearing on June 14, 2016 the Tribunal will address the following matters:
a. Whether the Applications should be consolidated;
b. Whether Application 2016-23744-I should be dismissed as against Kit Cheung;
c. Whether Robert Potomski should be declared a vexatious litigant; and,
d. If time permits, the merits of Application 2015-20990-I.
56The Registrar will provide notice of the location and time of the June 14, 2016 hearing to all parties in the three Applications.
57The Tribunal will offer mediation/adjudication services to the parties at the outset of the hearing on June 14, 2016. The parties may wish to review Rule 15A of the Tribunal’s Rules of Procedure and the Mediation Adjudication agreement in advance, both of which are available on the Tribunal’s website.
Dated at Toronto, this 16th day of May, 2016.
“Signed By”
Bruce Best
Vice-chair