HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tiara Ramnarine-Smith
Applicant
-and-
Havcare Investment Inc. and Carolyn Goodman
Respondents
A N D B E T W E E N:
Craig Smith
Applicant
-and-
Havcare Investment Inc. and Carolyn Goodman
Respondents
reconsideration Decision
Adjudicator: David Muir
Indexed as: Ramnarine-Smith v. Havcare Investment Inc.
APPEARANCES
Tiara Ramnarine-Smith and Craig Smith, Applicants
Benjamin Ries, Counsel, and
Erich Schultze, Law Student
Havcare Investment Inc. and Carolyn Goodman, Respondents
Reena Basser, Paralegal
[1] These Applications allege discrimination with respect to housing because of family status, receipt of public assistance, association with a being a member of a protected group and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The Applications were filed on April 11, 2016. On the same date the applicants filed a Request for Interim Remedy and Request to Expedite (“Requests”).
3The Applications together with the Requests were delivered to the respondents on April 12, 2016. In correspondence included with the Applications, the applicants proposed that these Applications be heard together with related matters before the Landlord and Tenant Board (“LTB”).
4The respondents were directed to file a Response to the Requests by April 19, 2016. The respondents did not file Responses to the Requests as directed. The respondents were also directed to file a Response to each Application by May 19, 2016. The respondents did not file Reponses as directed.
5The parties to the LTB cases appeared before that Board on April 26, 2016.
6The LTB issued an Interim Order on July 4, 2016. The Interim Order described the April 26, 2016 hearing as follows:
Background
This application was first before the Landlord and Tenant Board ('LTB') on February 12, 2016. At the Landlords' request, and on consent of the Tenant, the application was adjourned, subject to interim order TST-70258-16 issued on the same day.
By correspondence dated April 8, 2016, Tenant's counsel requested that this application be heard jointly with pending Human Rights Tribunal Ontario ('HRTO') applications on the basis that the issues in the applications before the LTB and the HRTO are overlapping.
By email dated April 25, 2016, the Social Justice Tribunals Ontario ('SJTO') informed Tenant's counsel that the matter would proceed before the LTB, as scheduled on April 26, 2016, as the SJTO was not prepared to address the request for a joint hearing before receiving the Landlord's response to the Tenant's Request for Interim Remedy and Request to Expedite the HRTO application.
April 26, 2016 Hearing
At the April 26, 2016 hearing before the LTB, Carolyn Krebs, the Landlords' Agent, and the Tenant were present. The Tenant was represented by Ryerson Neal and Madeleine Burkhardt-Jones, law students, and Benjamin Ries, staff lawyer, Downtown Legal Services.
The Tenant sought the opportunity to make submissions on the issue of whether the SJTO could join the applications filed with the LTB and the HRTO. The Landlords, who were unrepresented before the LTB but had retained counsel for the proceedings before the HRTO, were not prepared to make submissions on that point. In the circumstances Tenant's counsel asked for a further adjournment to permit both parties to provide submissions. The Landlords opposed that request.
Given the significance of the decision for both parties I agreed it was reasonable to adjourn the hearing and provided the following directions:
The Landlord was directed to file her responses to the Tenant's Request to Expedite and Request for Interim Relief in the HRTO proceeding.
Following receipt of the Landlord's HRTO responses another interim order would be issued directing the form and timeline for submissions on the question of the SJTO's authority to join the LTB and HRTO applications.
By correspondence dated June 24, 2016, Tenant's counsel informed the SJTO that, to date, the Landlords have not filed a response to either request before the HRTO.
Interim Order
In the circumstances I will not wait any longer for the Landlords to comply with my directions and make the following order to maintain the status quo while the parties address the consequences of the Landlords' failure to respond in the HRTO process.
7On July 18, 2016 the Tribunal issued a Case Assessment Direction (“CAD”) outlining the background above, with the exception of the LTB’s Interim Order, which was not provided to the Tribunal. The Tribunal did note that it was aware that at a related hearing before the LTB, the respondents indicated that they intended to respond to these issues, including the question of whether or not these Applications should be heard together with the Applications before the LTB. The respondents also indicated before the LTB that they had retained counsel to represent them in these cases.
8In the July 18, 2016 CAD, the Tribunal directed that the respondents file their Responses no later than July 25, 2016. The Tribunal set out the potential consequences for the respondents if they failed to file their response as directed at para. 8 of the CAD:
Where no Response is filed, the Tribunal will proceed to determine the Application in the absence of the respondent. In all but the rarest of cases, the Tribunal will deem the respondent to have waived its right to participate in the proceeding and deem the respondent to have accepted all of the allegations set out in the Application. Similar considerations obviously apply when a party fails to respond to other matters raised in the course of the proceeding as has been the case here.
9Due to an administrative error the July 18, 2016 CAD was not delivered to counsel identified by the respondents at the LTB hearing. In a subsequent CAD issued on July 28, 2016, this administrative error was acknowledged and an amended direction was issued as follows:
In the circumstances the Tribunal amends its Directions made in the CAD as follows. If the respondents wish to participate in these proceedings they shall deliver and file their Responses to the Request for Interim Remedy, Request to Expedite and their Response to the Application (Form 2) no later than 12:00 Noon, Thursday August 4, 2016 failing which the Tribunal will take some or all of the steps outlined in the Notice and Rule 5.5.
10The respondents did not file Responses as directed. In Interim Decision 2016 HRTO 1042, issued on August 5, 2016, after describing the background above, the Tribunal concluded that the respondents were aware of these Applications and had refused or had chosen not to participate further in the proceedings. The Tribunal made the following Orders and Directions:
Order
The Tribunal makes the following Orders:
a. The respondents are deemed to have accepted all of the allegations set out in the Application; and
b. The respondents are deemed to have waived all rights to notice or participation in these proceedings.
Therefore, the Applications will proceed without further notice to the respondents.
Next Steps
The Tribunal went on in Kearns, above, to explain that, for several reasons, it will not generally make an order under Rule 5.5 (d) (which permits the Tribunal to make a decision based upon the material filed at that point), without first providing an applicant with an opportunity to indicate whether he or she wishes to file further materials and/or make oral submissions.
Accordingly, the Tribunal will schedule a one hour case management teleconference call to discuss the following:
a. Does the applicant wish to have an oral hearing or have the Tribunal decide the Application based upon the written materials filed?
b. Does the applicant intend to call witnesses and in what format?
c. What documents does the applicant intend to rely upon and in what format?
d. What are the issues raised in the Applications?
e. What remedies is the applicant seeking from the Tribunal if the Tribunal finds that harassment or discrimination occurred, and what, if, any evidence, does the applicant intend to rely upon in support of these remedies?
f. Does the applicant plan to make any legal submissions and does the applicant plan to rely upon any case law?
g. A timetable for the applicant to file the items set out in points a. to f. above, will be discussed and set during the case management teleconference call; and
h. If the applicant is seeking an oral hearing, the availability of the applicants and their witnesses will also be canvassed to schedule a hearing date so the applicants should have their calendars present during the case management teleconference call.
The Tribunal will also entertain the applicants’ submissions with respect to their Requests for Interim Remedy and Request to Expedite during the conference call.
The Tribunal will issue to the applicants a notice of case management teleconference call setting out the date and time of the call and providing call-in instructions. There will be no evidence called during the case management teleconference call, the applicants are not required to file any materials with the Tribunal prior to the case management teleconference, and are not expected to have their legal submissions and/or case law ready for the teleconference call.
11Due to further administrative error no steps were taken by the Tribunal to schedule the conference call described above.
12On January 12, 2017, the Tribunal received correspondence from Reena Basser indicating that she had been retained to represent the respondents in these cases, including reference to the file numbers above. The representative did not address any of the outstanding issues and did not indicate that the respondents had not received the Applications or any of the other materials described above.
13In a Case Assessment Direction issued on June 8, 2017, the Tribunal outlined the history above and directed that a conference call would be held to consider amongst other things whether the respondents should be entitled to participate in the proceeding in light of the Interim Decision.
14On June 8, 2017, the respondents wrote to the Tribunal claiming that the respondents had never received a copy of the Applications and requested that the Tribunal provide copies to them.
15At the case conference held on June 14, 2017, the applicants indicated that they were opposed to the respondents’ participation in the proceeding in light of the Interim Decision and their view that the respondents were misleading the Tribunal about their not being in receipt of the Applications prior to their request of June 8, 2017.
16Amongst other matters, the respondents were directed to deliver and file Requests for Reconsideration of the Interim Decision, which they have done, and the applicants have responded to the respondents’ Request.
17In a Case Assessment Direction issued on June 30, 2017, I directed that a hearing be held to hear the evidence and submissions of the parties on the Request.
18The hearing on the Request was held on July 27, 2017. All parties participated. I heard the evidence of the personal respondent and two of her employees. The applicant’s evidence was introduced by witness statement and two affidavits with cross-examination offered to the respondents. Ms. Burkhardt-Jones and Ms. Ramnarine- Smith were cross-examined by the respondents. The affidavits of Dania Majid and Ryerson Neal were entered without cross-examination.
The Request for Reconsideration
19The Request for Reconsideration provides the following reason why the Tribunal should reconsider its Decision:
Other factors exist which outweigh the public interest in the finality of Tribunal decisions.
20As indicated the applicants oppose the Request.
THE LAW
21Section 45.7 of the Code and Tribunal Rule 26 set out the framework for the Reconsideration process at the Tribunal. The ability to seek Reconsideration is generally limited to final decisions of the Tribunal, although this includes a decision finally disposing of a party’s rights as is arguably the case with the interim decision being challenged. Although the respondents were directed to file their request by way of the Reconsideration process, during the course of writing these reasons it has also occurred to me that this request might have proceeded by way of a simple request to vary the interim ruling. This is potentially significant because reconsideration must be sought within 30 days of the decision being challenged and the basis for a reconsideration request must fall within one of a number of enumerated criteria set out in the tribunal’s rules. As set out below the respondents did not satisfy the criteria for reconsideration, but I want to be clear that I would have reached the same conclusion whether this request had proceeded by way of a general request to vary the interim order. That said, I turn first to the reconsideration framework.
22Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decision in accordance with Tribunal’s Rules.
45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.
(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.
23The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008, last amended April 2014). Most relevant to this Decision is Rule 26 which 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.
24The Tribunal’s Practice Direction on Reconsideration includes the following statements:
Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.
25As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.
26In this case there is a threshold question of whether or not the Request should be entertained at all because it has been filed well beyond the 30-day time limit contemplated in Rule 26.1.
27Rule 26.5.1 provides
26.5.1 A Request for Reconsideration made more than 30 days following the Decision will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
28This Request is out of time and should not be entertained unless, first, the respondents are able to establish a good faith explanation for the dely. If there is a good faith explanation for the delay then I must consider whether no substantial prejudice would result to any party from the delay if the Request were granted.
29The respondents did not directly address these points in their Request; however, their position is that they never received any of the materials in these Applications, including the Interim Decision, and remained unaware of the fact that these Applications had been filed until some unspecified date in late 2016 or January 2017. Although the Request relies on Rule 26.5 (d), in fact the only basis for the Request is the respondents’ assertion that they were unaware of these Applications until January 2017 and is therefore more properly a claim under Rule 26.5(b). This claim goes to both the threshold questions as well as the merits of the Request.
30The respondents assert and at the hearing the personal respondent testified that the respondents did not receive any of the following materials:
• The Notice of Applications; Requests for Interim Remedy and Request for Expedited Proceeding delivered to her by the Tribunal on April 12, 2016.
• The Notice of Applications; Requests for Interim Remedy and Request for Expedited Proceeding delivered to her by the applicant on April 8, 2016.
• Correspondence dated April 13, 2016 from counsel for the applicants to the respondents including correspondence between the applicants and the Tribunal and LTB concerning the processing of this Application. The letter makes specific reference to the fact that the Social Justice Tribunal of Ontario (which includes both the Tribunal and LTB) was awaiting a response from the respondents to the applicants’ request that these Applications be heard together with the LTB matters.
• Case Assessment Direction issued on July 18, 2016.
• Case Assessment Direction issued on July 28, 2016.
• Interim Decision issued on August 5, 2016.
31The materials sent from the Tribunal would have been addressed to the corporate respondent c/o of the personal respondent and separately to the personal respondent c/o of the corporate respondent.
32The July 28 CAD and the Interim Decision were sent to both the personal respondent by regular mail and, because of her representations to the LTB, to her counsel by mail and email.
33The personal respondent also testified that she was not sure whether or not she had seen an Interim Order of the LTB dated July 4, 2016 which makes explicit reference to these Applications and makes directions to the respondents about these cases, in part6 confirming the discussion at the LTB hearing in April 2016.
34The personal respondent testified that she was completely unaware of these Applications and the various documents referred to above until an unspecified date in late 2016 or January 2017. She was unable to say how or precisely when the fact of these two Applications came to her attention. The personal respondent testified that when she became aware she immediately retained a representative. As indicated earlier, the respondents’ representative wrote to the Tribunal on January 17, 2017, citing the correct file numbers.
35I do not accept the respondents’ evidence that none of these materials relating to the Application were received and I do not believe that the personal respondent was unaware of these Applications prior to the release of the Interim Decision. I also do not believe that the personal respondent did not receive the Interim Decision. I find that the personal respondent was aware of the existence of these Applications and related Request for Interim Remedy and Request for Expedited proceeding, likely on April 8, 2016, but in any event prior to the proceeding at the LTB on April 26, 2016, and therefore prior to the Interim Decision. Moreover, I find that the personal respondent has engaged in a flagrant abuse of process by her deliberate attempt to mislead the Tribunal by asserting ignorance of these Applications and her false claim to having received none of the materials enumerated above.
36In all of the circumstances the personal respondent’s claims are not remotely believable.
37It is true as noted by the respondents that the address which the Tribunal used to send materials to the respondents included an error. The address provided to the Tribunal by the applicants was 500 Dawes Road E, Toronto, ON M4B 2G1. There is no “E” (or East) Dawes Road in Toronto; the correct address is simply Dawes Road (sometimes indicated with “East York” because it is in the former East York area of Toronto). Aside from the inclusion of “E” the address used by the Tribunal to deliver material to the respondents was correct and there is no record of any of these materials being returned to the Tribunal. In addition the July 28, 2016 CAD as well as the Interim Decision, based on the representation made by the personal respondent before the LTB that she had retained counsel, were also sent to her solicitor. More significantly, I also note that the correspondence sent to the respondents by counsel for the applicants on April 8 and April 13, 2016 was not incorrectly addressed and was not returned to the applicants.
38Even in the absence of my additional findings below, I find the respondents’ general claim that they received none of the material incredible; this would have had to include the mail sent to the respondents’ counsel, the mail sent to 500 Dawes Road and the mail sent to 500 Dawes Road “E”. Even the error in the address that occurred regarding some of the mailings was a redundant one; that is, there is no 500 Dawes Road “E” (or “East”, or “West”) in Toronto that the mail could have been delivered to in error, so it seems as least as likely that Canada Post would have delivered the mail to the correct address at 500 Dawes Road. It is even more unlikely, if all of this mail was undeliverable (including the mail that was correctly addressed), that none of it was returned as undeliverable to the Tribunal or the applicants.
39The personal respondent offered several theories in an effort to explain the unlikely circumstances of her receiving none of the enumerated material.
40At the hearing the personal respondent testified that challenges with mail delivery had occurred in the last year or so. She described in vague and general terms how mail is not being received by her at the address in question including direct payment of rent from social transfer agencies. She testified that many of her tenants receive social benefits in the form of a cheque payable to the respondents for rent. These often go astray according to the personal respondent. She specifically testified that these cheques are not delivered to her but are also not returned to the sender. The personal respondent testified that she has had to track down her tenants’ case workers to find out where the payments were going. This evidence was contradicted by her employee who actually deals with the mail and who testified that some mail goes astray but that she learns of it when she gets a telephone call from the tenants’ case workers about returned mail.
41The personal respondent also proposed that the mail would not have been received by her because it was addressed to “Carolyn Goodman” and that her staff do not know her by that name. Although not clearly explained by the personal respondent in her submissions before me, in A.B. v. Havcare Investments Inc., 2014 HRTO 1087, the Tribunal found that although the personal respondent’s legal name is Carolyn Goodman, she sometimes operates her business under the aliases Marian Linton and/ or Carolyn Krebs. Notwithstanding the source of any confusion about the personal respondent’s identity, her evidence that staff do not know her by her legal name was contradicted by one of her employees who she called and who testified that he knew that this was one of the names that she used and that if had seen such mail he would give it to his wife (who handled the mail), who would give it to the personal respondent. It is also significant that the April 13 correspondence from applicants’ counsel to the respondent is addressed to the personal respondent using all of her currently known aliases. I would also observe that it is not appropriate to avoid delivery of materials by the use of multiple names, some of which may not be known to those who handle your correspondence. I also find that the respondent is not entitled to rely on any confusion she has created by her apparently strategic use of aliases. On this point I find that it cannot be said that an alleged failure of notice was not the fault of the respondents if some of this material was misdirected because of the personal respondent’s use of multiple aliases to avoid service.
42Aside from these obvious problems with the respondents’ evidence, I find that the personal respondent was not a credible witness. For example, according to the respondents, they became aware of these Applications at some unspecified date and immediately retained a representative who sent the January 17, 2017 correspondence to the Tribunal citing the correct file numbers. The personal respondent offered no explanation for when or how she became aware of the Applications. She was unable to explain why she was able to provide her representative with the correct file numbers for these Applications but had been completely unaware of them for many months at that point. This evidence is not credible.
43In assessing the personal respondent’s credibility, I have also considered the fact that the personal respondent appears to have mislead the LTB. In what appears to be a pattern for the personal respondent, she claimed to retain counsel for these Applications but in fact did not. At the hearing she said that she thought about retaining David Strashin to represent her to respond to these Applications. However, at the LTB hearing, she confirmed that she had retained him on the Friday before the hearing. The entire passage is set out below but this is part of what the personal respondent said about retaining counsel before the LTB:
So that’s why I contacted Mr. Strashin last week, and I did hire him finally on Friday. He was able to get a retainer on Friday.
In fact the respondents did not retain counsel to respond to these Applications.
44Most problematic for the personal respondent’s credibility is the fact that she is on record at the LTB acknowledging receipt of these Applications. Despite completely incredible attempts to explain this away and hold to their story that none of the materials in these Applications was received by the respondents and they were completely unaware of them until months after the release of the Interim Decision, a fair reading of the transcript of the LTB hearing in the related proceedings can lead to no other reasonable conclusion than that the personal respondent was perfectly aware of these Applications; had received them; and despite undertakings before the LTB, chose not to respond to them or otherwise participate in these proceedings until long after the Interim Decision had declared the respondents in default.
45It is clear from the outset of the LTB hearing that the issue that day was largely these Applications; the outstanding Request for Interim Remedy and Expedited Proceeding and the request of the applicants that they be heard together with the LTB application(s).
46There are repeated explicit references in the transcript of the April 26, 2016 LTB hearing to the human rights applications and related Requests as well as explicit references to the Human Rights Tribunal by the Associate Chair presiding, the representatives of the applicants, and the personal respondent.
47At 0:59, Associate Chair Bugby, in response to opening remarks from the applicant’s representative about the state of the Tribunal’s process:
What you are waiting to hear back on is the human rights tribunal - their decision on whether that should be expedited and whether there should be an interim relief granted. That is what you are waiting for. Which is a little bit different than whether they should be heard jointly or not. At this point, it is my understanding that the decision has been made that this matter would proceed on its own, and the human rights matter would proceed on its own at a later date.
48At 3:00, Associate Chair Bugby asks the personal respondent if she is aware of the human rights application:
Bugby - Okay, we can, but let’s just finish with this discussion. You are aware, I am asking, that there was a human rights application filed also with respect to the same tenancy?
Goodman - yes
49At 3:20, Associate Chair Bugby asks the personal respondent if she is aware of the request of the applicants that these Applications be heard together with the LTB matters:
Bugby - Okay. And also, I assume you are aware, I believe it was served on you, there was a request made to have the hearing, uh, this application and that application joined?
Goodman - yes
50The Associate Chair then asks the personal respondent her thoughts about whether or not these Applications could be heard together with the LTB matters:
3:25 – Goodman - Well, I definitely think it should not happen.
3:27 – Bugby - Why is that?
3:29 – Goodman - It seems like there are two totally separate court entities with two totally separate jurisdictions, and does that mean that the Human Rights Tribunal is going to conduct side by side with an adjudicator here? Or does that mean that an adjudicator here, from the Landlord and Tenant Board, is going to go down to the Human Rights tribunal and sit side by side with them? There was just too many questions. But basically, yeah. The whole point of this hearing is that Craig Smith is not a tenant in the property. He is not a tenant. This is what it is all about.
The discussion continued:
4:28 – Bugby - You said earlier there were too many questions in your mind, in terms of if both matters were heard together, in terms of how that might happen. So, if it were going to happen it could happen in several ways. Is one way agreeable to you and the others are not, or no form is agreeable to you of having them joined?
4:48 – Goodman - Um, I think no forms are agreeable to me. But as it is, I just got a letter from the tenant’s lawyers saying that is what they want to happen. So I did not receive the email saying that they are thinking about it or it is in the process.
5:07 – Goodman - I did get the big fat package that said they wanted them joined together and it has to be right away. But I am agreeable to an adjournment.
51At 7:04, the Associate Chair engages with the applicant’s counsel about next steps:
Bugby - So the order in which the applications were filed were the Landlord and tenant matter was filed first, the Human Rights application was filed afterward. That process is much longer than this process. The- and the thing that I haven’t heard anything about is that it appears that there are serious substantial allegations in the application that you are seeking to have dealt with, and- there is- it is before a Vice Chair that there is a request to expedite, but there is no guarantee that it will be expedited in preference to other matters, so your issues don’t get dealt with in that way. The, if that’s what seek to have happen.
The Associate Chair turns to the personal respondent again for her views on whether or not these Applications could be heard together with the LTB matters:
11:36 – Goodman - Well I believe that they should be heard separately as I have said before. They were filed separately; it was just the human rights one was just filed recently. There’s, it’s as if you are saying like they are two totally separate courts. It’s like saying you want to do small claims court and criminal court simultaneously, well small claims court has certain jurisdictions and criminal court has other jurisdictions and they also have their own separate remedies so it does not make sense at all to have the Landlord and Tenant go with the Human Rights Tribunal, and, even if there are similar issues, there is no prejudice to either party if they are heard separately
52The applicant’s representatives advise the LTB that they believe that the respondents were intending to seek an adjournment having just retained counsel. The Associate Chair presiding at the hearing asks the personal respondent if she is seeking an adjournment:
21:29 – Goodman - Originally, because they filed with the human rights, and with the human rights I need a lawyer to go too.
21:32 – Goodman - Because of the human rights application, I did hire Mr. Strashin. And because the tenant’s lawyers said they wanted everything together as a joint, I wasn’t sure whether today was going to be the human rights and the T2s all together or not, because I hadn’t heard from these most recent ones. So I asked Mr. Strashin, he said he couldn’t be here. I had always intended, totally, to represent myself on the T2 applications, I have no problem with proceeding with the T2 applications. It was just the human rights matter that got me all confused. The first time I had sent my son I think for a faster hearing I was in a different court. I couldn’t be in two courts at the same time. But with a T2 I have no problem with representing myself, well, representing the corporation, and having our own witnesses. So if they want to proceed today, I am okay with that, or if they want to ask for an adjournment, I am okay with that either. But it was just, like I said, it was the human rights, I need a lawyer for human rights and that’s why I hired Mr. Strashin. Even though, and if it would all be together, then he would do the whole thing together. And right now it’s sort of like floating around, I am not 100% sure.
53As noted above the applicants delivered the Applications, Request for Interim Remedy and Request to Expedite as well as their request to have these Applications heard together with the LTB cases, directly to the respondents, followed up with their correspondence dated April 12, 2016. At the LTB hearing the personal respondent acknowledges receipt of the applicants’ request that the cases be heard together on several occasions. See at 4:48; 5:07 and 21:32 above as well as:
22:49 – Goodman - I do not. I did not realize I had an option because the package I had been sent by the opposing lawyers said they were requesting it, they were talking to Vice Chairs, and it sounded as if they knew what they were talking about and they were going to get granted and have it together. So that’s why I contacted Mr. Strashin last week, and I did hire him finally on Friday. He was able to get a retainer on Friday. And, um, as I said, it was always my intention to argue against the T2s on my own.
54Despite these clear reference to correspondence sent by the applicants to the respondents (which was sent together with the Applications and two Requests), the personal respondent denied ever receiving any of the materials enumerated above. Given the clear reference to correspondence from the applicants in the transcript of the LTB proceeding, this evidence is not believable.
55The discussion returns to the status of these Applications. The Associate Chair presiding asks the personal respondent about representation for these Applications:
20:35 –Bugby - So ma’am, you have retained Mr. Strashin?
30:36 – Goodman - Yes we did.
30:37 – Bugby - And he is aware that the submissions are past due to the Human Rights Tribunal with respect to the tenant’s submissions on expediting the hearing as well as interim relief, both of which they are seeking. He is aware of that?
31:03 – Goodman - Um, he only became my lawyer on Friday, when I gave him all the pile, but as I say, the reason I hired him is for the Human Rights tribunal, so I would be willing to proceed right now with the tenant’s application.
31:16 – Bugby - I understand that too, but remember I said I like to just deal with one issue at a time, and then we will tie it all up at the end.
31:21 – Goodman - Okay.
31:22 – Bugby - So, he is aware.
31:23 – Goodman - He is, I don’t know how aware he is, because I just hired him on Friday afternoon, I gave him the mountain of the human rights tribunal, I gave him the two tenant’s rights applications, and I don’t know what he has read since Friday late afternoon until today because I haven’t spoken with him.
56At 42 minutes into the hearing the Associate Chair presiding sums up the issues to be determined at that stage:
The fourth issue is how we should proceed with respect to your request to make legal argument which is why you need your representative for whether or not this board and human rights tribunal have the legislative authority to join the two proceedings together. So we’ll work our way backwards this way through them. So with respect to that issue I do not wish to bind the human rights tribunal to some process that I set in place. So I propose that we proceed as follows: Mr. Strashin either is aware or will be aware, because you are going to let him know, that the submissions to the Human Rights Tribunal are pending on interim relief, requested by the tenants, and an expedited hearing. I’ll put that in the interim order as well, just so that everybody has that, okay, because there will be some sort of an interim order (and I can’t see without my glasses) So I’m not going to say he has to make that submission, but I will just put that in there by way of timeline reference. Thereafter, in consultation with the human rights tribunal, they may wish to follow their own process or they may wish to set another process whereby someone would have a pre-hearing conference and would hear that argument orally. They may wish to take those decisions in writing and base a decision upon that. And that in itself, the form of that decision, may in itself be interesting because I am not sure which board is going to make that decision. My suggestion is that either by the way of my interim order, or by way of their process, if they prefer, that opportunity will be given to make those submissions…
57In my view there is no reasonable reading of the content of these discussions and the remarks of the personal respondent that could lead to the conclusion that the personal respondent was not aware of and in receipt of the Applications and related Requests.
58At the hearing the personal respondent testified that she was confused and thought that what was being discussed were the two tenant-initiated applications at the LTB – however the explicit reference by all participants in the LTB hearing to the human rights applications and human rights tribunal completely belies that testimony. There are, as the personal respondent argued, two separate proceedings in two different “courts”. I do not accept the personal respondent’s evidence on these points.
59In response to the very explicit references to retaining counsel for the human rights matters the personal respondent had no real answer. When asked about the package being delivered to her by the tenants’ lawyers, she testified that she had received a big fat package from other lawyers but not the applicants/tenants representatives. She testified that she did not open the package. As set out above that is not what the personal respondent said before the LTB and I do not accept it.
60When asked about the “pile” of human rights material that she delivered to her counsel, the personal respondent testified that she gave him the material from her prior Application. This is not believable and clearly not what she meant to convey to the Associate Chair presiding at the LTB.
61Finally on this issue, the Interim Order of the LTB dated July 4, 2016, which was discussed at length before the LTB, includes the following references to the discussion at the April 26, 2016 hearing:
By correspondence dated April 8, 2016, Tenant's counsel requested that this application be heard jointly with pending Human Rights Tribunal Ontario ('HRTO') applications on the basis that the issues in the applications before the L TB and the HRTO are overlapping.
By email dated April 25, 2016, the Social Justice Tribunals Ontario ('SJTO') informed Tenant's counsel that the matter would proceed before the L TB, as scheduled on April 26, 2016, as the SJTO was not prepared to address the request for a joint hearing before receiving the Landlord's response to the Tenant's Request for Interim Remedy and Request to Expedite the HRTO application.
April 26, 2016 Hearing
At the April 26, 2016 hearing before the LTB, Carolyn Krebs [aka Carolyn Goodman], the Landlords' Agent, and the Tenant were present. The Tenant was represented by Ryerson Neal and Madeline Burkhardt-Jones, law students, and Benjamin Ries, staff lawyer, Downtown Legal Services.
The Tenant sought the opportunity to make submissions on the issue of whether the SJTO could join the applications filed with the LTB and the HRTO. The Landlords, who were unrepresented before the LTB but had retained counsel for the proceedings before the HRTO, were not prepared to make submissions on that point. In the circumstances Tenant's counsel asked for a further adjournment to permit both parties to provide submissions. The Landlords opposed that request.
62The Interim Order also records directions made to the respondents at the LTB hearing with respect to these Applications:
Given the significance of the decision for both parties I agreed it was reasonable to adjourn the hearing and provided the following directions:
The Landlord was directed to file her responses to the Tenant's Request to Expedite and Request for Interim Relief in the HRTO proceeding.
Following receipt of the Landlord's HRTO responses another interim order would be issued directing the form and timeline for submissions on the question of the SJTO's authority to join the LTB and HRTO applications.
By correspondence dated June 24, 2016, Tenant's counsel informed the SJTO that, to date, the Landlords have not filed a response to either request before the HRTO.
63The respondents did not comply with the LTB’s directions and in the Interim Order the LTB noted that:
In the circumstances I will not wait any longer for the Landlords to comply with my directions and make the following order to maintain the status quo while the parties address the consequences of the Landlords' failure to respond in the HRTO process.
64The personal respondent when asked about the Interim Order was not sure that she received it. She offered no explanation for why she would not have received it and there is no reason to conclude that she did not.
65The fact that the personal respondent could not explain when or how she became aware of these proceedings does not enhance her credibility. I do not accept her claim that she only became aware of these proceedings months after the release of the Interim Decision. I also note again that the personal respondent was unable to explain how, despite having not received any of the materials generated in this file, she was able to give her representative the correct file numbers.
66The inescapable conclusion based on all of the above is that the respondents were completely aware of these Applications and simply chose not to respond to them. There is also no reason to conclude that the respondents were not in receipt of the Interim Decision and chose not to take steps at point to seek to participate in the process.
67In my view the personal respondent has deliberately attempted to mislead the Tribunal. Her claim that she was unaware of these Applications until months after the release of the Interim Decision is not believable. Moreover, her attempts to explain away the plain meaning of the discussions at the LTB and her representations to the LTB are not believable and are a further deliberate attempt to mislead this Tribunal. I agree with the applicants that the personal respondent has lied to this Tribunal.
68In my view this conduct of the personal respondent is an egregious abuse of process. The respondent is a sophisticated litigant who appears, she has said, weekly at the LTB. The personal respondent has been involved in a prior Application before this Tribunal. The false statements she has made are not properly characterized as misstatements that could be credibly explained away as faulty memory of events in which the personal respondent was involved. Witnesses often misremember and reimagine the actual events for many reasons which often are more about reliability than credibility. In this case the personal respondent’s misstatements and lies were about the receipt of materials in these Applications and, more damning, the clear and plain meaning of her statements before the LTB. Even assuming that the personal respondent could have forgotten all about being delivered with the materials enumerated above, her continuing to deny any knowledge of these Applications or having received them in April 2016 when faced with the transcript of the LTB was completely unbelievable. I have never witnessed such a spectacle in 25 years of adjudication.
69I have also considered that the conduct of the personal respondent in this case resonates with her conduct in the prior case here as well as other matters described in the affidavit of Dania Majid. See A.B. v. Havcare Investments Inc., 2014 HRTO 1087, also cited above. I also observe that the respondents breached undertakings made at the LTB as well as the directions of the LTB in the Interim Order set out above.
DECISION
70If I were to treat the default finding in the Interim Decision as a type of final decision, this Request ought to have been filed on or about September 5, 2016, 30 days after the release of the Interim Decision. It was only received on June 20, 2017, after I directed that it be filed. Although represented since January 17, 2017, the respondents, despite their claims to have received none of the materials in these cases, took no steps to apprise themselves of their status. Given my conclusions that the respondents have attempted to mislead the Tribunal about their receipt of the materials in this case and the further inaction even after they supposedly first learned of them, there is in my view no good faith explanation for the delay in filing the Request and that is one basis on which I would dismiss the Request.
71Even if, despite the lengthy delay, I were to entertain this as a Request for Order without any of the timing or other criteria arising from the Tribunal’s Reconsideration Rules, I agree with the applicants that to grant a Request in these circumstances would not be appropriate. To begin with, the primary reason offered by the respondents that could have supported a variation or reconsideration – that of lack of notice – has been rejected.
72The respondents also argue that these cases are in their “infancy”. It is true that due to administrative error these Applications were never scheduled for their final hearing. However, I agree with the applicants that to grant this Request would be to condone an egregious abuse of process by the respondents and would render the Tribunal’s Rule 5.5 a dead letter such that a respondent could at any point, and despite any misconduct on their part, join the process at any stage. What is critical in this case is what I have found was a deliberate attempt to mislead this Tribunal. I agree with the applicant when in response to my question about whether or not the Tribunal has ever denied a respondent’s request to respond to an Application after a default declaration, the applicant’s representative offered that if these circumstances did not justify such an order, what circumstances would.
73If the respondents had at any point admitted what in fact has occurred here, the result might well have been different; however, in this case the attempt to mislead continued even after the applicants made it plain that they intended to prove, and a reasonable person might have thought they could prove, that the personal respondent was lying to the Tribunal. Rather than admit to what had in fact occurred the personal respondent came to the Tribunal and deliberately gave false evidence.
74I would also observe that the Tribunal has denied requests such as this, albeit after a final decision had been issued, when it was determined that the respondent had received notice of the Application prior to the release of the interim decision declaring them in default and chose not to respond. See Pelletier v. 1894773 Ontario Inc. (Andy Myers Lodge), 2015 HRTO 1441.
75The Tribunal has also previously made orders finally disposing of a party’s rights when confronted by an attempt to mislead the Tribunal in circumstances not unlike those here. In Nyonzima v. Idlewyld Manor (“Nyonzima”), 2011 HRTO 1517, the Tribunal determined that the applicant had fabricated two witness statements in an attempt to bolster her case.
76In Nyonzima, having found that the applicant had fabricated two witness statements the Tribunal considered, at paras 40 to 51, whether it was appropriate to dismiss the Application as requested by the respondent:
Section 23(1) of the Statutory Powers Procedure Act, R,S.O. 1990, c. S.22, as amended, gives the Tribunal the power to “prevent abuse of process”. An abuse of process is “something that would shock the public, conduct which would violate those principles of fundamental justice which underlie the community’s sense of fair play and decency or is vexatious or oppressive in character.” Patel v. Minto Developments (No. 2) (1996), 1996 CanLII 20055 (ON HRT), 26 C.H.R.R. D/444 (Ont. Bd. Inq.). See also Jeffrey v. Dofasco, (2001), 2001 CanLII 26216 (ON HRT), 9 C.C.E.L. (3d) 133, 39 C.H.R.R. 500.
The Tribunal’s Rule 1.1 provides:
These Rules apply to all proceedings before the Tribunal under Part IV of the Code and will be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it.
The Tribunal’s Rule 1.7(v.1) (Now A8.2) states that the Tribunal may:
make such orders or give such directions as are necessary to prevent abuse of its processes and ensure that the conduct of the participants in Tribunal proceedings is courteous and respectful of the Tribunal and other participants.
In Giguere v. Popeye Restaurant, 2008 HRTO 2, the Tribunal found that the applicant had attempted to have a friend give false testimony to the Tribunal in exchange for $2,000 of the financial award she was expecting to receive upon the completion of the proceedings. In response the Tribunal denied the applicant all damages. The Tribunal stated that the applicant’s deliberate attempt to mislead the Tribunal was “one of the gravest abuses a party can commit. It undermines the Tribunal’s ability to determine complaints based upon the facts and true merits of the case.” (at para. 80).
In Quattrochi v. Boz Electric Supply, 2009 HRTO 1082, the Tribunal considered the respondent’s allegation that the applicant had made false statements in his pleadings. The applicant had made differing claims about the date of termination of his employment and the amount of termination pay he received in his application and reply in comparison with his oral testimony at the hearing. The Tribunal found that these false statements were an abuse of process designed to mislead the Tribunal and maximize his claim for lost income. As the hearing had already been completed, the Tribunal discounted the applicant’s $5,000 award to $3,500 and ordered the respondent to allocate the remaining $1,500 to a charity.
In File No. TSL-26416-SA, a decision of the Ontario Rental Tribunal, the Tribunal found that the drafting of the witness statements by the landlord and effectively forcing the tenants to sign them was a form of fabricating evidence and an abuse of process that justified the dismissal of the landlord’s application. In addition, the Tribunal ordered the landlord to pay costs of the proceedings in favour of the tenant in the amount of $500.00.
In my view, the applicant engaged in a scheme to subvert and abuse the Tribunal’s process by fabricating the two Statements in order to bolster her case. This is an extremely serious breach of the Tribunal’s process. It undermines the Tribunal’s ability to determine applications based upon the facts and true merits of a case.
In Giguere v. Popeye, supra, the then Chair of the Tribunal, Michael Gottheil, addressed the issue of abuse of process with the following remarks:
A complainant who engages in this type of behaviour also demeans the human rights process and the Code itself. Human rights statutes are quasi-constitutional legislation, and the rights protected under the Code are rights of critical importance in our society. A human rights complaint, which seeks to enforce those critically important rights, is a serious matter. It is a serious matter for the complainant who believes that her rights have been infringed. It is a serious matter for a respondent who has been accused of discrimination. And it is a serious matter for society, because the violation of human rights is a public wrong in addition to an individual wrong. A human rights complaint should not be used as a kind of “get rich” scheme, or a process where a party can employ any strategy to “win”.
What is the appropriate response to this abuse of process? In Giguere v. Popeye and Quattroci v. Boz Electric Supply, supra, the abuses came to light during the course of the hearing on the merits. In both cases the Tribunal found that the appropriate response to the abuse of process was to deny the successful applicants all or a portion of the damage awards to which they were otherwise entitled. In the present case the abuse of process has come to light prior to the hearing on the merits. Consequently the remedies in Giguere and Quattroci are neither available nor appropriate.
As was ordered by the Rental Housing Tribunal in File No. TSL-26416-SA (supra), a cost order in favour of the respondents might have been an appropriate response to this abuse of process. I am of the view, however, that the Tribunal does not have the authority to award costs (see for example, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940; Farris v. Staubach Ontario Inc., 2011 HRTO 979; Clennon v. Toronto East General Hospital, 2010 HRTO 506; and M.O. v. Ottawa Catholic District School Board, 2011 HRTO 1174).
To respond to the abuse of process by simply ruling that the applicant cannot use the Statements at the hearing on the merits is of little consequence since there are no real witnesses behind them in any event.
In the circumstances, I find it to be neither fair nor just to require the respondents to continue to participate in this process in the face of the applicant’s conduct. I find that the appropriate response to the applicant’s abuse of process is the dismissal of the Applications.
77The Decision was upheld on judicial review in Nyonzima v. Human Rights Tribunal of Ontario, 2012 ONSC 5120; the Divisional Court addressed the decision to dismiss the Application:
With respect to the ultimate decision itself, that is to say the decision to dismiss the applicant’s complaint as an abuse of process, the question is whether that was too heavy handed or whether it was within the range of what is reasonable. Ultimately the adjudicator concluded that the appropriate remedy in this case was to dismiss the applications. That conclusion, in our view, is protected by the deferential standard of review.
The decision to dismiss the applicant’s complaints because of an abuse of process was well within the Tribunal’s power. The Tribunal may make such orders as are necessary to prevent abuse of its processes. The Code authorizes the Tribunal to control its own process and practices. Whether the Tribunal should exercise its discretion to dismiss an application as an abuse of process is a question at the heart of both its statutory mandate to control its own proceedings and its specialized expertise. The adjudicator reviewed other potential remedies and concluded at paragraph 48 of the Decision that they would be ineffective in this case.
78In my view the circumstances here are very similar. In both cases the Tribunal concluded that a party had engaged in a deliberate and egregious abuse of process – a deliberate attempt to mislead the Tribunal. In the Nyonzima case the Tribunal dismissed the Application, an extraordinary and in every sense a completely dispositive outcome. In this case, denying the respondents’ Request means that they cannot participate in the proceeding any further but it does not automatically follow that the applicants will be successful. The Tribunal will still be required to make a determination of the Code issues on the applicants’ evidence and the law. For the applicant in Nyonzima her case was dismissed with no hearing – it was over for her.
79I have considered this decision carefully and particularly whether any other order would be appropriate to remedy the abuse or process and prevent it being repeated. The respondents made no suggestions. Having considered the matter carefully, and having regard to the Tribunal’s Decision in Nyonzima, I am persuaded that the only appropriate and effective order to remedy what I have found was a deliberate attempt to mislead the Tribunal by the respondents is to deny this Request and uphold the Tribunal’s earlier decision finding the respondents in default and not entitled to further participation. To put it another way, to grant the substance of this request would be to countenance an egregious abuse of process by the respondents and render the Tribunal’s Rule 5.5 a dead letter. In my view such a result would not be appropriate in these particular and highly unusual circumstances.
80For all of these reasons the Request of the respondents is denied and the Interim Decision is undisturbed.
81This case will proceed to the next stage in the Tribunal process.
82I am not seized with these cases.
Dated at Toronto, this 24th day of October, 2017.
“Signed by”
David Muir
Vice-chair