Court File and Parties

Citation: Constantinos v. Kubota Canada Ltd, 2024 ONSC 5477

Divisional Court File No.: 284/24

Date: 2024-10-03

Superior Court of Justice – Ontario

Divisional Court

Re: Georgiou Constantinos, Applicant -and- Kubota Canada Ltd., Respondent

Before: F.L. Myers J.

Counsel: Georgiou Constantinos, for himself Jeffrey B. Simpson and Ioana Pantis, for the Respondent Maija-lisa Robinson, for the Human Rights Tribunal of Ontario

Heard at Toronto (by Zoom): October 2, 2024

Case Conference Endorsement

[1] I provided written scheduling directions for this application for judicial review on June 21, 2024. At that time, I did not appreciate that Mr. Georgiou had not served the Human Rights Tribunal of Ontario with his Notice of Application. Mr. Simpson and Ms. Pantis have now kindly provided a copy of the Notice of Application to Ms. Robinson. No further service is required.

[2] The Human Rights Tribunal may now appear or not as it chooses. If it wishes an order amending the Title of Proceedings to add itself as a party, it should seek the consent of the parties and submit a consent order. If consent of all parties is not readily forthcoming, the order may be sought in writing by sending an email to me (in care of my Judicial Assistant) and I will set a very brief schedule for written submissions if necessary.

[3] With the Tribunal now on notice of the proceeding, dates must be re-set to allow it time to prepare its Record of Proceedings.

[4] Mr. Constantinos has sent several emails to the Court criticizing staff for not helping him enough. I advised Mr. Constantinos during the case conference that the Court endeavours to be helpful and provide guidance to self-represented parties. But the Court must be fair to all parties. It cannot give legal advice to a party or do his work for him. As discussed further below, it is up to Mr. Constantinos to learn the necessary steps and follow the guidance provided.

[5] Mr. Constantinos is reminded that he must not communicate with the Court without copying the others involved. Documents to be filed must be served on the other parties first (and the Tribunal if it is not yet a party). Emails to Court staff, if necessary, must be copied to the others as well.

[6] In his emails to staff, Mr. Constantinos makes frequent reference to his desire for accommodation. Accommodation is readily available for any limitations on Mr. Constantinos’ ability to participate fully in this proceeding caused by disabilities. But it is not a catch-all for generalized complaints. I explained to Mr. Constantinos that the Court has an Accommodation Coordinator who is available to have an accommodation dialogue with Mr. Constantinos at his request. The Court regularly provides accommodation as requested.

[7] I understand that judicial review proceedings are complicated. The Court provided its Guide to Judicial Review Proceedings to Mr. Constantinos. The document sets out in some detail the procedural requirements of a judicial review application including a description of the necessary Application Record. In addition, in my June directions, I made specific reference to the need for Mr. Constantinos to prepare and deliver an Application Record. I directed him to the relevant rule in the Rules of Civil Procedure that describes the contents of an Application Record. Yet, at the case conference yesterday, Mr. Constantinos said that it was the first time he had heard of the requirement that he deliver an Application Record. That tells me that Mr. Constantinos is either not reading what he is sent, or he is not understanding the import of the guidance provided.

[8] As I am setting a new timetable, Mr. Constantinos does not need leave to extend the time limit to deliver his factum that was set out in my prior endorsement. But I also explained to Mr. Constantinos that I read his Revised Factum. While it discusses the substance of his complaints against his former employer (the Respondent) it does not set out any basis to review the order of the Human Rights Tribunal of Ontario.

[9] Mr. Constantinos’ factum does not address the correct issue. As discussed in the Guide to Judicial Review Proceedings and orally reiterated yesterday morning, in this judicial review lawsuit, the Court will not be deciding if Mr. Constantinos should win his human rights claims against his former employer. That is the role of the Human Rights Tribunal.

[10] In this proceeding, the Court will consider whether the Tribunal made an unreasonable or unfair decision when it dismissed Mr. Constantinos’ claims due to his failure to deliver evidence and documents within the time required by the Tribunal. Mr. Constantinos will need to show that the Tribunal’s decision was “unreasonable” or “unfair”. Both of those words have specific meanings in judicial review proceedings. An “unreasonable” decision is defined in the Supreme Court of Canada’s decision called Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653, https://canlii.ca/t/j46kb. An “unfair” decision is described by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, https://canlii.ca/t/1fqlk. Those two decisions are just the starting points. There are many other court precedents that deal with how a court assesses a tribunal decision to dismiss a claim based on non-compliance with the tribunal’s processes and procedural rules.

[11] Mr. Constantinos will need assistance accessing and understanding the relevant principles of law involved in this proceeding. Some help may be available to Mr. Constantinos through Pro Bono Ontario using their Hotline: 1-800-668-8258. He may also be able to obtain some assistance understanding how to deal with legal issues by consulting the online resources of the National Self-Represented Litigants’ Project at https://representingyourselfcanada.com/. The Primer on that website may be especially useful to Mr. Constantinos. It can be found at https://representingyourselfcanada.com/wp-content/uploads/2016/11/NSRLP-CanLII-Primer-V1.pdf.

[12] The following schedule replaces the prior schedule and shall be followed unless an order is obtained to allow changes. Mr. Constantinos consented to the timing set out below. But, despite my advice to him that his factum does not address the correct issue, Mr. Constantinos said that his factum is completed so he does not need additional time. I offered him an additional month in case he chooses to revise his factum so that it can speak about the issue that is before the Court.

[13] The new schedule is as follows:

a. The Tribunal will deliver its Record of Proceedings on or before October 31, 2024;

b. Mr. Constantinos will deliver his Application Record and his factum on or before November 30, 2024;

c. The Respondent will deliver its factum and a Respondent’s Application Record, if so advised, on or before January 10, 2025;

d. The Tribunal may deliver a factum on or before January 24, 2025; and

e. The Registrar is requested to move the date for the hearing before a three-judge panel to the first available date after January 31, 2025 (for two hours).

[14] Mr. Constantinos has uploaded some documents to Case Center. The documents deal with the substance of his complaint against his former employer. They do not address his efforts to comply with the Tribunal’s procedural rules. In addition, the documents are not attached to an affidavit. I do not know if they were admitted in evidence before the Tribunal. I told Mr. Constantinos at the case conference that if he wants to put documents before the Court for the hearing of his application for judicial review, he will likely need an order of a judge allowing him to do so. Some evidence can be admissible on an application for judicial review without leave of the court. In any event, any documents to be submitted to the Court must be proved in evidence by sworn affidavit. Mr. Constantinos will likely need assistance with these steps as well.

[15] I also feel the need to advise Mr. Constantinos that if he does not succeed in his application in this Court, he will likely be ordered to pay some portion of the employer’s legal fees incurred in this legal proceeding. Costs orders typically amount to several thousand dollars. This is a real financial risk for Mr. Constantinos.

[16] Mr. Constantinos already had his case dismissed by the Tribunal due to his inability to follow the applicable procedural rules. I do not know if he understands the rules of the Court any better or if he understands the real financial risk he faces in this proceeding.

[17] Based on what I have seen and now heard from Mr. Constantinos, I strongly recommended that he retain a lawyer to conduct this proceeding for him. It is not realistic to expect someone who has no legal training or education to be able to research and argue the issues of law raised in this judicial review proceeding. While retaining a lawyer is expensive, participating in a lawsuit without one may be equally or more expensive at the end of the day if Mr. Constantinos is ordered to pay a portion of the legal fees incurred by the former employer to pay its counsel.

[18] At the very least Mr. Constantinos needs to speak to a lawyer to ensure that he knows what is required of him in this proceeding and that he understands the potential risks and benefits of the proceeding that he has brought in this Court. I strongly urge Mr. Constantinos to consult a lawyer soon to discuss these issues.

F.L. Myers J.

Date: October 3, 2024