Potomski v. Menzies, 2016 HRTO 781

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 Date: June 7, 2016 Citation: 2016 HRTO 781 Indexed as: Potomski v. Menzies

WRITTEN SUBMISSIONS

Robert Potomski

Christopher Surowiak, Paralegal

Introduction

1A hearing in the above matters is scheduled in Windsor on June 14, 2016. The issues to be addressed at the hearing are set out in an earlier Interim Decision, 2016 HRTO 660, which also gave a number of directions to the parties.

2As of June 6, 2016, the applicant, Mr. Potomski, had not complied with any of the directions in Interim Decision 2016 HRTO 660. At 4:24 PM on June 6, Mr. Potomski filed a request to adjourn the June 14, 2016 hearing date on the basis that he had retained a representative, but the representative was unavailable due to a conflict in scheduling.

DECISION AND ANALYSIS

3The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states, in part:

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.

4The Tribunal has held that retaining a representative at a late date will not generally constitute exceptional circumstances. See Vallentyne v. Royal Canadian Legion, 2009 HRTO 534 at para 6. Mr. Potomski has had notice of the hearing date for over five months. He was, through Interim Decision 2016 HRTO 660, given additional time to respond to the various procedural issues to be determined at the June 14, 2016 hearing. He did not meet any of the timelines set out in the Notice of Hearing. He did not communicate with the Tribunal at all until three weeks after Interim Decision 2016 HRTO 660 was issued, and the communication was only to advise that he had retained a representative and was seeking an adjournment.

5Mr. Potomski has not raised any exceptional circumstances to justify granting the adjournment, and the adjournment request is therefore denied. The hearing will proceed on June 14, 2016.

Hearing of Application 2015-20990-I

6As noted in Interim Decision 2016 HRTO 660, the Tribunal intends to proceed with the scheduled hearing of Application 2015-20990-I on June 14, 2016 if time permits.

7As he had not complied with Rules 16 and 17 of the Tribunal’s Rules of Procedure, Mr. Potomski was directed to deliver and file his documents, witness list and witness statements for Application 2015-20990-I by May 27, 2016. He did not do so. As such, he is reminded that he may not be permitted to rely on any documents at the hearing, pursuant to Rule 16.4 of the Tribunal’s Rules of Procedure, which provides as follows:

No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.

8Mr. Potomski has also not provided a witness list or witness statements. Assuming he wishes to testify himself, he will be confined to testifying only with respect to the allegations set out in the Application and Reply to 2015-20990-I.

Response to Application 2015-22283-I

9Also in Interim Decision 2016 HRTO 660, at paras. 31-33, I stated the following with respect to Application 2015-22283-I:

Mr. 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.

Ms. 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.

Though 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.

10Mr. Potomski did not file a Response to Application 2015-22283-I in accordance with the above.

11Rule 5.5 of the Tribunal’s Rules of Procedure states:

5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

1. deem the Respondent to have accepted all of the allegations in the Application;

2. proceed to deal with the Application without further notice to the Respondent;

3. deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

4. decide the matter based only on the material before the Tribunal.

12The issue of which of the above steps are appropriate to take at this point will also be addressed at the June 14, 2016 hearing.

Orders and directions

13The request to adjourn is denied. The hearing will proceed on June 14, 2016 in Windsor to address the issues set out in Interim Decision 2016 HRTO 660, and to determine what steps are appropriate to take under Rule 5.5 in Application 2015-22283-I.