Moffatt v. Kinark Child and Family Services (No. 2)
1995-12-13
ONTARIO BOARD OF INQUIRY
Date: 19951213 File No.: BI-0056-95 Decision No.: 95-053-I
BETWEEN:
Ontario Human Rights Commission Commission
AND:
James Moffatt Complainant
AND:
Harry Oswin and Kinark Child & Family Services Respondents
Adjudicator: Mary Anne McKellar
Counsel for the Commission: Ena Chadha
Counsel for the Complainant: Brian Kelsey and William S. Challis
On his own behalf: James Moffatt
Counsel for the Respondents: Brian D. Mulroney, Lucy Siracco and Jane Dawes
INTERIM DECISION
THE ISSUE
1By decision dated December 6, 1995 [CHRR Doc. 95-193], I dismissed the Complainant's motion objecting to my jurisdiction to hear this matter ("the Jurisdictional Decision"). The Complainant now requests that I adjourn these proceedings while it pursues an application for judicial review in respect of the Jurisdictional Decision.
2The Ontario Human Rights Commission ("the Commission") and the Respondent oppose the adjournment request.
THE DECISION
3The December 1995 hearing dates are adjourned. If the conditions set out in the final paragraph of this decision are satisfied the January hearing dates will be adjourned as well.
THE BACKGROUND
4The matters set out in the following four paragraphs are canvassed more fully in the Jurisdictional Decision itself. I am including this summary version of events here for the sole purpose of permitting this decision to be read as a stand-alone document.
5In the Jurisdictional Decision, I held that the Chair of the Board of Inquiry ("BOI") acted within the authority conferred upon him by s. 35(8) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended ("the Code") when he reassigned this case to me after another adjudicator had commenced the hearing by conference call. Accordingly, I found that I had jurisdiction to hear the matter. The Complainant's position was that the original adjudicator had to continue the hearing.
6When the hearing reconvened on December 11, 1995, Counsel for the Complainant indicated his intention to make an application for judicial review of the Jurisdictional Decision.
7Counsel for the Complainant also suggested that his intended application for judicial review might be heard together with an application made in respect of the preliminary decision of the BOI in the Abouchar case [reported [1999 CanLII 35168 (ON HRT), 35 C.H.R.R. D/185]. The Abouchar decision also deals with the extent of the Chair's authority under s. 35(8) of the Code, specifically whether it authorizes the reassignment of a case in circumstances where the initial assignment was made prior to the proclamation of the amendments to the Code establishing the BOI as a statutory tribunal and vesting reassignment power in the Chair.
8The reassignments in both Abouchar and in this case were predicated on what might broadly be termed "scheduling considerations". In addition to the issue outlined in the preceding paragraph, Counsel for the Complainant, who is also counsel for the applicant in the Abouchar judicial review, indicated that his argument to the Court in Abouchar may raise the issue of whether s. 35(8) permits reassignments based on scheduling considerations, although that issue did not form the basis of the challenged decision. That issue did form the basis of the challenge to my jurisdiction, and is precisely the issue addressed in the Jurisdictional Decision.
9The judicial review application in Abouchar is scheduled to be heard on February 15, 1996. Counsel for the Complainant has not yet taken any steps to attempt to have the judicial review of the Jurisdictional Decision listed for hearing at the same time as Abouchar, but he has indicated his intention to do so.
THE ANALYSIS
10There was no dispute between the parties that I have the jurisdiction to determine whether to adjourn this hearing pending the outcome of the anticipated judicial review proceedings, and that such determination involves an exercise of my discretion. The real point of departure for the Complainant and Respondent was with respect to how I should exercise that discretion. I should note at this point that while Commission Counsel opposed the adjournment request, she made no further submissions in support of her position.
11Complainant Counsel's argument was simply that this hearing becomes a nullity if he is successful on his judicial review application. He submits that, because of this possibility, it would be undesirable to have the parties risk litigating the matter twice, once before me, and then once before the properly constituted panel (i.e. the adjudicator originally assigned). Furthermore, he argued that much of the delay that might otherwise be occasioned by an adjournment pending judicial review can be avoided if the intended judicial review application in this case can be heard together with the one in Abouchar on February 15, 1996.
12In his very able and thoughtful submissions, Respondent Counsel took me through a close reading of the following cases: Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183 (1971), 1971 CanLII 341 (ON CA), 22 D.L.R (3d) 40 (Ont. C.A); University of Toronto v. C.U.E.W Local 2 (1988), 1988 CanLII 4757 (ON HCJ), 65 O.R (2d) 268 (Div. Ct.); Roosma v Ford Motor Co. of Canada Ltd. (1988), 1988 CanLII 5633 (ON HCJDC), 66 O.R (2d) 18 [[1988 CanLII 4851 (ON HCJ), 10 C.H.R.R. D/5761] (Div. Ct.); Ghosh v. Domglas lnc. (1991), [1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16 (Ont. Bd. Inq.)]; and Great Atlantic & Pacific Co. Of Canada Ltd. v. Ontario (Minister of Citizenship) et al. (1993), 62 O.A.C. 1 [[1993 CanLII 16525 (ON CTGDDC), 18 C.H.R.R. D/97] (Div.Ct.). The following principles emerge from that reading:
Administrative tribunals are designed to provide for the expeditious resolution of disputes. Delays or interruptions in that process are to be avoided.
Such delays or interruptions occasioned by judicial review proceedings should be avoided except in "exceptional circumstances".
The mere fact that a matter is jurisdictional in nature does not constitute an exceptional circumstance, nor does it alleviate the need for a "factual grounding", without which the reviewing court cannot properly asses the jurisdictional issue.
In determining whether exceptional circumstances exist such that an adjournments should be granted, I should consider whether the issue grounding the judicial review application is a substantial one worthy of judicial deliberation, and in so doing I should assess the strength or weakness of the case for judicial review.
If the issue is a substantial one, the question of whether to grant an adjournment should then be decided on the basis of the balance of convenience.
13I adopt the above principles, with one reservation, which will become apparent below.
14I am not comfortable second-guessing my own decision in order to assess the likelihood of success on judicial review, particularly when the issues raised before me were somewhat novel and have not previously been commented on by the courts. In my view, the "substantial" nature of the issue for judicial deliberation can be measured not just by assessing the strength or weakness of the judicial review application, but also by having regard to such factors as whether it relates to a "settled" or "novel" area of law and whether the outcome of the judicial review may impact significantly on the tribunal's delivery of services. The fact that the Jurisdictional Decision deals with a section of the Code conferring new powers on the Chair, along with the potential impact on delivery of service that any determination of the scope of the Chair's authority to reassign cases may have, persuades me that the "substantial issue" test has been met.
15I am cognizant of the delay that is attendant upon any adjournment of proceedings, and note that a delay of any duration may have undesirable consequences in a case where many of the important findings, so I am told, will be resolved on the basis of credibility. I am also cognizant of the Respondent's. desire for some closure in these proceedings, which initiated with a complaint filed in 1991. Nevertheless, I have determined that on the peculiar facts of this case, the balance of convenience at this time favours the granting of the adjournment. There are three factors which compel me to this result.
16This case is not like most cases in which preliminary jurisdictional matters are raised and judicial review of those jurisdictional determinations sought. In the typical case, the jurisdictional challenge relates to the jurisdiction of the tribunal, not the jurisdiction of the particular adjudicator. In those situations, the impact of the tribunal refusing an adjournment request pending judicial review and then having its decision quashed, is that the case dies. It does not get remitted to another panel of the tribunal because the finding is that the tribunal itself has no jurisdiction over the matters raised. As it turns out, the parties may have participated needlessly in one hearing, but at least they do not have to duplicate their efforts before another panel. By contrast, because the jurisdictional challenge in this case relates to the jurisdiction of a particular adjudicator to hear the matter, and not to the jurisdiction of the BOI over the subject matter of Mr. Moffat's complaint, the outcome of a successful judicial review application here would involve the entire matter being reheard. In that respect, this case is conceptually similar to Great Atlantic & Pacific Co. Of Canada Ltd. v. Ontario (Minister of Citizenship) et al., in which the Divisional Court quashed the adjudicator's refusal of an adjournment pending judicial review in circumstances where one of the issues for the Court's review was her decision not to remove herself on the basis of a reasonable apprehension of bias.
17In assessing the balance of convenience, I have also had regard to the fact that the parties wish to adduce evidence from witnesses who are out of the jurisdiction. I was advised that one witness resides in northern British Columbia, and the other in Australia. A Notice of Motion has been filed seeking permission to have their evidence adduced by conference call, but this motion is opposed, and has yet to be argued. In this case, then, not only is there the possibility that the hearing would be duplicated, but that such duplication would be extraordinarily costly should the parties be required to call these witnesses twice.
18Finally, the balance of convenience at this time appears to favour granting the requested adjournment because of the possibility of "piggybacking" the intended judicial review application of the Jurisdictional Decision on the Abouchar matter and minimizing the delay that might otherwise accompany such an adjournment.
19The factors I have taken into account in paragraphs 17 and 18 above may change with the passage of time. For example, the parties could reach agreement on the issue of my receipt of electronic evidence, and that agreement could influence me to consent to hearing the testimony in that fashion. More significantly, the expedition with which I have been willing to assume that this judicial review application will be commenced and heard could prove to be illusory. The Complainant could fail to take out a judicial review application, or take steps to attempt to have it heard with Abouchar, or any attempts it does make in that direction could be unsuccessful. These considerations have informed my order, which I have attempted to make sufficiently flexible to take account of these or other changes in circumstance which may alter the balance of convenience to favour proceeding with the hearing.
THE ORDER
20The hearing is adjourned subject to the following conditions. Should the Complainant fail to take out its application for judicial review forthwith; serve it on the other parties by December 22, 1995; and perfect it prior to the first scheduled hearing date in January, 1996, the hearing will proceed as scheduled on January 8, 1996. I expect the other parties to cooperate with the Complainant in his attempts to secure an early hearing date for the judicial review application. I direct the parties to advise me in writing as soon as practicable of the return date for the judicial review application. If the matter cannot be heard at the same time as Abouchar or, failing that, prior to March 31, 1996, then the hearing will resume. If any of the parties is of the view that there has been a change of circumstances that would alter my determination that the balance of convenience in this case favours the adjournment, those issues may be raised by written Notice of Motion pursuant to the BOI Interim Rules of Practice.