HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Michael McKinnon

Complainant

-and-

Her Majesty the Queen in Right of Ontario

(Ministry of Correctional Services), and Frank Geswaldo,

George Simpson, Phil James and James Hume.

Respondents

INTERIM Decision

On a Motion to Stay the Proceedings

Brought on behalf of James Duncan and Sherree Cybulski

Adjudicator: H. Albert Hubbard

Date: November 7, 2005

Citation: 2005 HRTO 48

Human Rights Tribunal of Ontario

400 University Avenue, 7^th^ Floor

Toronto ON M7A 1T7

Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946

TTY (416) 314-2379 / 1-800-424-1168

E-mail hrto.registrar@jus.gov.on.ca

Website www.hrto.ca

APPEARANCES

James Duncan and Sherree Cybulski, applicants ) Neena Gupta, Counsel

Michael McKinnon, Complainant ) Kate Hughes, Counsel

Her Majesty the Queen in Right of Ontario, )

Ministry of Correctional Services, Frank ) Kate Stephenson, Counsel

Geswaldo, George Simpson, Phil James and )

James Hume, Respondents )

INTRODUCTION

1In a letter to the Ministry of Correctional Services written on January 26, 2005 (Exhibit 42), counsel for the complainant alleged that "conduct of harassment, discrimination and a poisoned environment for Mr. McKinnon" continued. The examples of such conduct set out in that letter implicate both Mr. James Duncan and Ms. Sherree Cybulski—the former as having allegedly suggested to recruits that they be wary of the complainant's penchant for keeping notes about others, and the latter as having allegedly said (in effect) that the complainant "was nothing but trouble". Having obtained confirmation by electronic mail at the end of August of 2005 that it was the complainant's intention to ask the Tribunal to make findings of fact concerning these allegations (regarding which the complainant's considerable evidence had long since been adduced, presumably for that very purpose), counsel for the Ministry so advised Mr. Duncan and Ms. Cybulski, and the Ministry undertook to cover their legal expenses. This led them to engage counsel, whose motion for standing on their behalf was denied by the Tribunal in its decision of September 28, 2005.

2On October 11, 2005, the Tribunal heard a motion brought on behalf of Mr. Duncan and Ms. Cybulski for a stay or an adjournment of these proceedings pending the judicial review of its September 28 decision. After the submissions of the parties were heard, that motion was denied, with these written reasons for that decision to follow in due course.

3The relevant Rules of Practice of the Ontario Human Rights Tribunal regarding such a motion are as follows:

73. An appeal from a final decision of the Tribunal operates as a stay of the final decision unless a court orders otherwise

74. An application for judicial review under the Judicial Review Procedure Act is not an appeal within the meaning of Rule 73 and does not operate as a stay of a decision of the Tribunal unless the Tribunal or a court rules otherwise. Any notice of application for judicial review must be served on the Registrar or counsel of the Tribunal.

ANALYSIS

4In support of her motion, counsel for the applicants referred to RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, which sets out a three-part test to be applied in respect of applications for such interlocutory relief. That test can be summed up as follows: the applicant must demonstrate that there is a serious question to be tried, that irreparable harm will result if the relief is not granted, and that the balance of convenience favours granting the relief sought. It was submitted on behalf of the applicants that their entitlement to full legal representation as parties in these proceedings is a serious question to be decided on the judicial review, that irreparable harm will be caused if a stay or an adjournment is not granted in that their reputations would be irredeemably harmed if adverse findings are made, and that the balance of convenience favours allowing the motion because the Tribunal's systemic orders are not expected to be fully complied with until the end of 2009 in any case. The Ministry, of course, supported the application. Counsel for the complainant submitted that, having regard to the interests of her client, the balance of convenience dictates the denial of a stay of these proceedings, and that any harm thus occasioned to the applicants would not be irrevocable.

5Having referred to the RJR-MacDonald case simply as the source of the test to be applied, counsel for the applicants relied primarily on the decision of the Ontario Board of Inquiry in Iness v. Caroline Co-operative Housing Inc. [2001] O.H.R.B.I.D. No. 28, which she described as a "mirror image" of the case before me in that the applicant wanted to be removed (rather than added) as a party to the proceedings. In Iness, having been added as a respondent by way of an interim decision of the Board, Canada Mortgage and Housing Corporation applied to the Court for a judicial review of that decision, and applied as well to the Board for a stay or, alternatively, an adjournment of the proceedings pending that judicial review. The Board in Iness made the following observations regarding the principles that should guide it in the exercise of its discretion to grant either a stay or an adjournment of the proceedings:

17. The fact that all the parties consent to a stay or an adjournment … does not relieve the Board of ensuring that a stay or adjournment is appropriate in all circumstances. There is no automatic stay of the Board's proceedings when a judicial review application is made. A stay is an extraordinary remedy. If a stay is granted, the Board essentially abdicates control over its process and must await the results of a potentially lengthy appeal process. Whether the proceedings are stayed or adjourned is a discretionary matter.

18In Moffat, Vice-Chair McKellar dealt with a request to adjourn the proceedings while the Complainant pursued a judicial review application. In distilling the results of the review of the law in that decision she adopted the following principles, subject to one qualification:

(a) Administrative tribunals are designed to provide for the expeditious resolution of disputes. Delays or interruptions to that process are to be avoided.

(b) Such delays or interruptions occasioned by judicial review proceedings should be avoided except in 'exceptional circumstances'.

(c) The mere fact that the matter is jurisdictional in nature does not constitute an exceptional circumstance ... [In this regard, see the Tribunal's decision of September 28 in which it is pointed out (in paragraph 1) that: "Ms. Gupta also sought a declaration that the Tribunal lacks jurisdiction either to make negative or adverse findings of fact against her clients or to make an order negatively impacting upon their employment."]

(d) In determining whether exceptional circumstances exist such that an adjournment should be granted, the Board should consider whether the issue grounding the judicial review application is a substantial one being worthy of judicial deliberation, and in so doing the Board should assess the strengths and weaknesses of the case for judicial review.

(e) 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.

19. The only caveat that was given was that 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 the law.

6In my opinion, far from supporting the applicants' motion, the reasoning in Iness leads to the opposite conclusion in the present case. Although the Board in Iness, which denied the motion for a stay, adjourned the proceedings, it did so on strict conditions, including a review of the adjournment by way of a conference call scheduled for some five months later. The circumstances leading to that decision are in sharp contrast to those before me. Unlike Iness, in which the parties agreed to a stay, thereby acknowledging that the balance of convenience favoured CMHC, the complainant in the present proceedings is opposed to a stay or an adjournment on the ground that he would suffer substantial harm thereby and, for reasons to which I will come, I do not think the balance of convenience favours the applicants before me.

7When one contrasts the facts herein with the series of circumstances set out in Iness as factors justifying, not the stay (which was denied), but merely an adjournment on strict conditions, the scope and nature of the critical differences between the two situations becomes quite apparent. The marked differences between the two cases can be shown in point form as follows (the quoted passages being taken from paragraph 27 of Iness):

1. In Iness, it was pointed out that "The essential facts in this case are not in dispute." In the case before me, the truth of the allegations regarding the applicants is the very crux of the matter.

2. In Iness, it was said that "Absent further evidence, this does not appear to be a case where delay will prevent a fair hearing." In the case before me, the complainant has completed his evidence regarding the matters in dispute and further delay will tend to diminish the ability of the Ministry's witnesses to recall events. As was said in Brillinger v. Brockie [1999] O.H.R.B.I.D. No. 6 (at paragraph 17): "In any litigious proceeding, the length of time that elapses between the actionable events and the adjudication with respect to them, is a matter of concern as it may affect the quality of the evidence that is presented."

3. In Iness, it was stressed that "There have been no dates set for the hearing on the merits, unlike many of the cases in which the Board has refused a request for a stay or an adjournment." In the case before me, the hearing of the complainant's evidence-in-chief has been completed and dates have been set for the hearing of the Ministry's evidence.

4. In Iness, it was emphasized that "The hearing of this Complaint, unlike others, is still at a preliminary stage." The hearings in the matters between the parties before this Tribunal commenced in 1996, and the issues giving rise to these renewed hearings are tied to the Tribunal's 1998 and 2002 decisions and affect the complainant's right to be returned to a racist-free workplace as soon as possible.

8As the jurisprudence makes plain, a stay or potentially prolonged adjournment is an extraordinary remedy, and "the party requesting it must clearly demonstrate that the balance of convenience overwhelmingly favours the granting of it" (Fiorini v. DiPoce Management Ltd. [1997] O.H.R.B.I.D. No. 4; emphasis added). In my opinion, the circumstances before me are not exceptional: they do not warrant the delays or interruptions that would likely occur were the applicants' motion allowed. As was said in Brillinger (supra, at paragraph 17):

17. If a stay is granted pending the outcome of the judicial review application, it is conceivable that the hearing before the Board of Inquiry will not conclude before the year 2000 at the earliest. While I am advised that argument on the judicial review application is likely in November [i.e. some six months later], that does not guarantee that date, or that a decision will be released immediately. The Divisional Court may well reserve its decision and any of the parties to this proceeding may decide that a further appeal is appropriate.

9There can be no assurances of timeliness in the judicial review process, as the parties to the present proceedings must be painfully aware. After all, these decade-old proceedings have already been interrupted for very considerable lengths of time in consequence of previous (unsuccessful) applications for judicial review, one of which was appealed to the Court of Appeal. I am not reassured in this regard by counsel's statement on behalf of the applicants that "we do intend to at least attempt to get [the application] in front of a single judge of the Superior Court on the grounds of urgency and on the grounds that hearing dates have been set and, to the best of my effort, I will try to expedite the judicial review process as much as the courts permit".

10I am not persuaded that "the issue grounding the judicial review application" is substantial, particularly "having regard to such factors as whether it relates to a 'settled' or 'novel' area of the law." I believe that the point at issue is settled by the decision of the Court of Appeal in Hurd v. Hewitt, 1994 CanLII 874 (ON CA), 20 O.R. (3^rd^) 639, and my view in that regard is found in these paragraphs of the September 28 decision:

22It is inevitable in lengthy and prolonged proceedings such as this that negative and/or adverse findings be made against persons who are neither parties to nor witnesses therein. If such findings are dictated by the evidence and are essential to the resolution of an issue, if they are not simply gratuitous, then most certainly the Tribunal has jurisdiction to make those findings; indeed, [as per Hurd, supra] "the duty of the tribunal is to reach that conclusion if those facts are relevant to the decision". Thus, in my view, it is not open to the Tribunal to declare that it lacks jurisdiction either to make negative or adverse findings of fact regarding non-parties or non-witnesses or to make orders that may have a negative impact on them in terms of employment or otherwise.

25In my opinion, to grant standing to anyone who asks for it on the basis that evidence has been given that might cast aspersions on them, or otherwise show them in an unflattering light, would be to invite chaos. It seems to me that the evidentiary issue that concerns Mr. Duncan and Ms. Cybulski is simply whether the allegations made in Exhibit 42 are substantially true. Whether they are called as witnesses is up to the parties; but, if they are called, each will have ample opportunity to testify fully regarding the issue of fact that concerns him or her.

11Even if the issue to be judicially reviewed were substantial, the applicants have not satisfied me either that a denial of their motion for a stay or an adjournment of these proceedings would result in irreparable harm or that the balance of convenience favours allowing that motion. One of the harms that they suggest would be risked by a failure to put these proceedings on hold until the Divisional Court has disposed of their application for judicial review is damage to their reputations; another is the unnecessary incurrence of expense. Of course, should their application for judicial review prove unsuccessful, no harm to them would have been caused by the denial of the motion before me.

12As to the potential harm to their reputations, it is to be noted that counsel for the Ministry intends to call the applicants as witnesses, and their evidence will be heard before findings of fact regarding their conduct are made. Whether their evidence would be different if adduced by counsel of their choice is a matter of conjecture, as is the question whether the evidence of witnesses already heard would be different if they were recalled for cross-examination by the applicants' counsel.

13In any case, since the hearings of the various matters presently being dealt with will not be concluded until some time in January of 2006, at the earliest, and given the length of the hearing, the Tribunal's decision is unlikely to be handed down before March. Hence, if the judicial review is completed as expeditiously as counsel for the applicants hopefully suggested would be the case, the Divisional Court's decision may intervene, postponing the findings of fact until it is complied with.

14Even if the Tribunal were to make adverse findings of fact regarding the applicants before the Divisional Court decided their application for judicial review, in my opinion, the nature of that harm is not such as to require an adjournment in order to avoid risking its occurrence (see Hurd, supra). Nor would the harm be of an irreparable character since, ex hypothesi, the matter would be reopened and the findings reversed if the evidence thus adduced so warranted.

15As to possible financial harm to the applicants, if they were to succeed before the Divisional Court, witnesses would have to be recalled. Although that has financial implications, as pointed out by counsel for the complainant, such consequences are not regarded as irreparable harm in the present context. Moreover, if their application for judicial review were to succeed, witnesses who have already testified regarding the applicants' conduct would have to be recalled whether or not these proceedings were stayed or adjourned. Thus, the only witnesses whose recall would result in expenses that would not be incurred if an adjournment were granted are the applicants themselves.

16On the other hand, if these proceedings were stayed or adjourned pending the judicial review, the complainant's hurtful predicament would be prolonged and exacerbated. Not only is the stress upon him and his wife difficult to bear, but the longer they remain away from work the less likely it is that they will obtain meaningful opportunities for career advancement, such as their contemporaries have enjoyed. While they need not return to the workplace until it is safe for them to do so, it does not follow (as counsel for the Ministry suggested in addressing the complainant's opposition to the motion) that all of the Tribunal's systemic orders must be fully complied with some four years hence before that can occur. Hopefully, the situation at the Toronto East Detention Centre will be sufficiently improved to allow them to resume work long before then, and the resolution of the "Duncan incident" would appear to be crucial to their being able to do so.

17Finally, whereas both counsel for the Ministry and counsel for the applicants referred to Booth v. Huxter (1993), 68 O.A.C. 125, in which an application for a stay of a Coroner's inquest was allowed by the Divisional Court, I did not find the circumstances of that case sufficiently analogous to those before me to have any persuasive value. As pointed out in Booth (in paragraph 9): "For reasons given on November 10, 1993, and November 16, 1993, the Coroner refused to adjourn the inquest until the application for judicial review had been determined on December 16, 1993. However, the Coroner agreed to adjourn the inquest until today, November 19, 1993, at 10:00 a.m., to await the outcome of this motion to stay." Thus, the adjournment sought from the Coroner would have been for about one month. Then (in paragraph 27) the Court concluded as follows: "In summary, if the stay is not granted, there is a real danger of the denial of natural justice. If it is granted, inconvenience and a delay of a month or so are the only consequences that will ensue."

18As indicated in the Tribunal's decision of September 28, I am of the opinion that natural justice does not require that the applicants be made parties to these proceedings. For the same reasons, I am of the view that denying the applicants' motion for a stay or an adjournment does not risk a denial of natural justice in the case before me. Unlike a delay that is known at the time of the application for the adjournment to be simply in the order of "a month or so", at the time of the application to this Tribunal for a stay or an adjournment the inconvenience and delay that would be occasioned thereby was potentially a major interruption of these proceedings, and it remains so.

DECISION

19For all the above reasons, the motion made on behalf of Mr. James Duncan and Ms. Sherree Cybulski for a stay or an adjournment of these proceedings pending the judicial review of the Tribunal's decision of September 28 was denied after hearing the parties' submissions at the hearing on October 11, 2005.