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
RECONSIDERATION DECISION
Adjudicator: Brian Cook
Indexed as: Potomski v. Windsor (City)
WRITTEN SUBMISSIONS
R.J. Potomski, Applicant
Self-represented
1The applicant has requested a reconsideration of Decision 2016 HRTO 602 (“the Decision”), dated May 5, 2016. The Decision dismissed the Application as an abuse of process after the applicant failed to attend a scheduled hearing. The applicant disagrees with several aspects of the Decision.
2The applicant has also filed another Request for Reconsideration in regard to a Contravention of Settlement Application that arises out of the instant Application. That Request for Reconsideration will be addressed in a separate Case Assessment Direction.
3Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.
[4] Rule 26 of the Tribunal’s Rules of Procedure states:
26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision.
26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that
(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
5The Tribunal’s Practice Direction on Reconsideration states in part:
Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
Background
[6] As noted in the Decision, the Application filed by the applicant named two respondents. The first was the City of Windsor and the other was St. John’s Anglican Non-Profit Corporation (“St. John’s”). The Response filed by St. John’s requested that the Tribunal schedule a summary hearing to determine if the Application as against St. John’s should be dismissed as having no reasonable prospect of success. The Tribunal did direct that a summary hearing be scheduled. The summary hearing was scheduled to deal with the entire Application, and not just the allegations against St. John’s.
[7] After the summary hearing was scheduled, the applicant withdrew the Application as against St. John’s as a result of settlement discussions between the applicant and St. John’s.
[8] The applicant believes that in these circumstances, the summary hearing should have been canceled. This belief rests on the theory that the summary hearing was scheduled at the request of St. John’s and the request was then vacated as part of a settlement with St. John’s. The Request for Reconsideration includes a reiteration of this theory.
[9] The applicant’s theory is incorrect for two reasons. First, it is up to the Tribunal to determine whether a summary hearing will be held. While a respondent may request that a summary hearing be held, the decision of whether to do so is made by the Tribunal. The Tribunal frequently determines that a summary hearing should be held even if there has been no request to do so by the respondent. Second, the summary hearing was not scheduled to deal only with the allegations as against St. John’s but rather with respect to the Application as a whole.
[10] Another concern that the applicant has expressed on a number of occasions prior to the summary hearing and again in the Request for Reconsideration has to do with the correct identification of the remaining respondent. The Response from the respondent the City of Windsor was received from Windsor Essex Community Housing Corporation (“Windsor Community Housing”). The Response noted that Windsor Community Housing is the correct respondent as it has authority administer the housing issues that were the subject of the Application. The applicant believes that it was improper for the Tribunal to allow Windsor Community Housing to file any Response or for its counsel to have anything to do with the Application.
[11] These and other concerns the applicant had raised prior to the summary hearing were addressed in a Case Assessment Direction dated April 18, 2016. It advised that the issues raised by the applicant, including his concerns about the correct respondent, could be raised at the hearing. The issue of the proper respondent was addressed at the hearing and this matter was clarified in the Decision.
[12] The April 18, 2016 Case Assessment Direction directed the parties to refrain from filing further documents prior to the May 3, 2016 summary hearing. In the Request for Reconsideration, the applicant suggests that this was a denial of justice because he was prevented from filing further documents in advance of the hearing. The reason for the direction was to try to avoid confusion that was resulting from the applicant’s multiple filings about various issues. In fact the applicant did file more documents after the April 18, 2016 Case Assessment Direction.
[13] On the morning of May 3, 2016, the applicant advised the Tribunal Registrar that he wanted the hearing scheduled for later that afternoon to be adjourned because he had asked the Court to intervene. The Registrar advised him that the hearing would continue as scheduled and that he could raise his concerns at the hearing.
[14] The hearing proceeded. The applicant did not appear. In the Decision, I said, at paragraphs 23 and 24:
The 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.
The 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.