Hiamey v. Toronto Community Housing Corporation, 2016 ONSC 4372

CITATION: Hiamey v. Toronto Community Housing Corporation, 2016 ONSC 4372

DIVISIONAL COURT FILE NO.: 574/15

DATE: 2016-07-19

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Del Frate J.

BETWEEN:

Godfred Kwaku Hiamey Applicant (Moving Party)

– and –

Toronto Community Housing Corporation Respondent

Godfred Kwaku Hiamey, self-represented

Orna Raubfogel, for the Toronto Community Housing Corporation Margaret Leighton on behalf of the Social Justice Tribunals for Ontario

HEARD: June 28, 2016

DECISION ON MOTION

1The applicant, “Mr. Hiamey” brings this motion seeking to strike the responding materials served and filed by the Toronto Community Housing Corporation (“Toronto Community”) to prevent the landlord from participating in the judicial review application. Alternatively, Mr. Hiamey seeks damages of $50,000 and costs of $5,000 if the landlord is permitted to continue to defend this application.

Background

2Mr. Hiamey brought an application to the Human Rights Tribunal against the Toronto Community alleging that it violated his human rights by terminating his tenancy when he did not pay the full rent owed. Alternatively, the Toronto Community failed to grant him a rental subsidy when he lost his job and was no longer able to pay the unsubsidized market rate for his unit as required by his lease.

3After a full hearing, the Tribunal dismissed his application for the following reasons:

a. it had no reasonable prospect of success;

b. it was an abuse of process; and

c. it was statute barred due to a time limitation.

4A subsequent request for reconsideration of the decision was dismissed as well.

5On November 9, 2015, Mr. Hiamey commenced a judicial review application seeking remedies and damages, reinstatement of his employment, accommodation in the old apartment from which he was evicted, or an equivalent apartment, erasing the arrears of rent owing on his rental account and requiring the Toronto Community to reimburse him for any rental arrears already paid by him or on his behalf. He is also seeking a declaration that the Tribunal’s decision was discriminatory. He is also seeking to add the Tribunal as a respondent to the judicial review application.

6That application was filed on December 11, 2015, but not perfected until April 12, 2016. The Toronto Community received the documents in December 2015 but since it was not clear whether the materials filed by Mr. Hiamey were perfected, the Toronto Community did not file any responding materials at that time.

7On January 19, 2016, the Toronto Community contacted the Divisional Court’s administrative offices and was informed that the application filed was unperfected and that the Toronto Community should not file responding materials at that time.

8The Toronto Community continued to check with the Divisional Court and on April 12, 2016, was informed that Mr. Hiamey had perfected his application. On April 13, 2016, the Toronto Community filed the responding materials.

Position of Mr. Hiamey

9Mr. Hiamey submits that the pleadings ought to be struck since Rule 68.04(4) has not been followed. By filing the documents on April 13, 2016, the Toronto Community violated the 30-day time limit prescribed by Rule 68.04(4). Accordingly, his position has been prejudiced since the hearing date has still not been set, and as a result, he suffers from anxiety and loss of sleep because of the uncertainty about his future.

Position of the Toronto Community

10It submits that Mr. Hiamey’s position is totally unfounded since what triggers the 30-day time limit is the filing of the perfected materials as opposed to the original notice of application. It has acted in good faith and has taken all reasonable steps to comply with the rule. It called the administrator at Divisional Court on numerous occasions to determine when the perfected materials would be filed. Once the perfected materials were filed, it responded promptly.

11Alternatively, the Toronto Community submits that if it were a late filing, Mr. Hiamey has not sustained any prejudice since he himself did not perfect the application until April 12, 2016. The matter would not have been heard in any event until such time as the application was perfected.

12Lastly, the Toronto Community submits that the relief of striking the responding materials is an extreme remedy which is not warranted on the facts of this case.

Position of Human Rights Tribunal

13The Tribunal is present solely because it was given notice that at some point it would be added to these proceedings. It has not filed any materials. However, its position is that the responding materials were filed within the 30 days that the application was perfected. Further, there has been no prejudice to Mr. Hiamey even if I were to find that the response was not filed within the 30 days of the notice of application.

Discussion

14Rule 68.04(4) states:

68.04(4) The respondent shall deliver an application record and a factum within thirty days after service of the applicant’s application record and factum. R.R.O. 1990, Reg. 194, r. 68.04(4).

15On a strict interpretation of this rule, the responding materials should have been served by January 11, 2016.

16The position advanced by the Toronto Community is that it was not clear from the materials filed that these would be the materials to which it had to respond. The Record itself was not proper and was stapled as opposed to bound. Accordingly, it contacted the Divisional Court office to determine whether the application was perfected. The reply is that it was not and the Toronto Community should wait until the application had been perfected. Once informed of its perfection, it promptly served and filed the responding materials.

17In my view that is a totally reasonable and responsible course of action. Otherwise, had it filed the response by January 11, 2016, it may have had to amend its response once the perfected documentation had been served. Rule 1.04(1) states that the rules “shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” It appears to me that the wait would have met this objective.

18Rule 2.01.1 permits the court to … “grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute.”

19At most, and I do not make such a finding, failure to file the response by January 11, 2016, may be considered “an irregularity”. The conduct exhibited by Toronto Community was not unreasonable nor in bad faith. By waiting until the application was perfected, Toronto Community knew exactly what it had to respond to. Further, even if it were “an irregularity”, there is no justification for not permitting Toronto Community to participate and defend the allegations brought by Mr. Hiamey, especially when there is no prejudice.

20The relief being sought by Mr. Hiamey, i.e. that the response be struck and damages of $50,000 plus $5,000 in costs be awarded if I were to permit the Toronto Community to continue, is totally unrealistic and without foundation.

21Mr. Hiamey’s submission that he has been prejudiced by the supposed delay, is not well founded. Although he states that he is not trained in law, he has had extensive and intimate experiences with all levels of courts and tribunals as a self-represented litigant. Further, according to submissions, he is involved with ongoing litigation on numerous fronts on which he is self-represented. Although he may be stressed, I cannot conclude that all of his stressors are related to the alleged late filing of the responding materials.

22Accordingly, I find that he has not been prejudiced and his claim for damages is dismissed. Further, the application to strike the responding materials is dismissed.

23The Toronto Community seeks costs in the sum of $2,103.10. It appears that two hours were required to prepare the responding materials in this motion. It also claims $1,500 for the attendance. The attendance was less than one hour. The amount claimed by the Toronto Community is excessive. Accordingly, I award costs of $800 plus HST and disbursements of $103.10 inclusive of HST on the disbursements.

24Order to issue as per Reasons. Should Mr. Hiamey not approve the Order within 15 days of its service, the Registrar may issue the Order without Mr. Hiamey’s approval provided it complies with the Reasons.

The Honourable Mr. Justice Robert G.S. Del Frate