Glover v. 571566 Ontario Inc. et al., 2007 CanLII 59347

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Martha Glover

Complainant

• and -

Ontario Human Rights Commission

Commission

• and-

571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac Tavern, Vladimir (a.k.a. Walter) Perin Sr., Walter Perin Jr.

Respondents

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: December 11, 2007

Citation: 2008 HRTO 3

Indexed as: Glover v. 571566 Ontario Inc. et al.

Human Rights Tribunal of Ontario 400 University Avenue, 7th 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

1This decision provides further procedural direction in regard to several preliminary requests brought by the Complainant Martha Glover.

Background

2At the Initial Conference Call held on September 4, 2007, after hearing from the parties, the Tribunal made a number of determinations and directions, which were then confirmed in correspondence from the Tribunal dated September 21, 2007. I determined that the breach of settlement complaint that was initiated by the Commission (HR-1207-06) and the breach of settlement complaint that was initiated by Ms. Glover (HR-1331-07) should be combined and heard together. I also determined that the motion that had been brought by Ms. Glover in complaint HR-1207-06 to have her added as a party-complainant was moot, and therefore would not proceed.

3In addition, I provided procedural directions in light of several preliminary requests raised by counsel for Ms. Glover on the ICC. Those requests included:

a. that the Commission and its Director of Legal Services be added as respondents

b. that the hearing before the Tribunal in the instant complaints include all allegations which formed the basis of Ms. Glover’s original complaint (HR-0910-05), which was settled and which settlement forms the basis of the instant breach of settlement complaints

c. that the Tribunal find that the Commission and its Director of Legal Services engaged in an abuse of process, and that the abuse requires “immediate and ongoing remedial relief.”

4I directed that counsel for Ms. Glover file the requests in writing within 30 days of the Initial Conference Call. I also directed that once the requests were filed, the Tribunal would hold a follow-up conference call to set a timeframe to respond and an opportunity for oral submissions.

5After two requests by counsel for Ms. Glover for extensions to file her submissions (the first granted and the second denied), the written requests were filed November 28, 2007.

6The submissions set out the three requests identified on the Initial Conference Call, as well as two others, that are in the nature of requests for remedial relief in respect of the alleged abuse of process, and are set out below:

a. funding by the Commission and its Director of Legal Services for Ms. Glover’s independent legal representation

b. “Further remedial relief for Ms. Glover as may be appropriate during the hearing and after a complete hearing of her complaint on the merits in order to ensure that all prejudice occasioned to Ms. Glover by the abuse of process has been remedied.”

Decision

7I have considerable difficulty with the notion that the Tribunal should conduct a hearing with respect to two of the requests made by Ms. Glover. I also have concerns with the apparent scope of the remedial request in respect of the alleged abuse of process.

8Ms. Glover seeks an order that the hearing into the breach of settlement complaints include an inquiry into, and presumably a remedy for, all of the allegations that formed the basis of her original harassment complaint. This request was made by Ms. Glover at a hearing on May 4, 2006, and by decision dated May 10, 2006, I rejected that request. It is unclear upon what basis Ms. Glover seeks to re-argue the request.

9In addition, Ms. Glover seeks to add the Commission and its Director of Legal Services as respondents in respect of the breach of settlement complaints. This request was previously made in a motion brought by Ms. Glover in respect of HR-1207-06. In a decision dated January 22, 2007, I declined to entertain the request. I noted that HR-1207-06 was initiated by the Commission and that it would not make any sense to have the Commission as a complainant and a respondent in the same case. I also noted that the matter before the Tribunal was the alleged breach of settlement, and it was not apparent from the allegations set out in the complaint, even if accepted to be true, how the Tribunal could find that the Commission and the Director of Legal Services had breached the settlement in file HR-0910-05. Again, nothing in the submissions filed provide a factual or legal basis as to why the Tribunal could or should come to a different conclusion than it had in the previous decision.

10I appreciate that in light of my procedural directions of September 4, 2007, counsel for Ms. Glover has not had the opportunity to fully set out her client’s position in regard to the above. However I am not prepared to require the other parties to be put to the time and expense of filing responding submissions and attending a hearing on issues that were the subject of previous Tribunal decisions. Likewise, in the context of scarce Tribunal resources, it would be irresponsible to permit a hearing into matters that appear to have been already determined, without requiring the requesting party to establish the legal and factual basis for doing so.

11Turning to the remedial requests, Ms. Glover appears to be seeking broad remedies for the alleged abuse of process. Apart from the request to provide funding for her independent counsel, Ms. Glover seeks “immediate and ongoing remedial relief” and “further remedial relief …as may be appropriate during the hearing and after a complete hearing of her complaints on the merits….”

12As counsel for Ms. Glover correctly points out in her submissions, the Tribunal does not have supervisory authority over the conduct of the Commission. It has been held however that the Tribunal may have regard to what has happened at the pre-referral stage in order to prevent an abuse of the Tribunal’s process. It would follow therefore, that any appropriate remedies that might flow from a finding of an abuse of process in this context, would be remedies designed to ensure that the Tribunal was able to fully and fairly determine the subject matter of the complaint before it. A party who feels aggrieved by alleged improper actions of the Commission may have a variety of avenues open to address those concerns, but the Tribunal’s jurisdiction in dealing with such alleged abuse of process is limited to ensuring a full, fair and expeditious hearing.

13In reviewing the requests submitted November 28, 2007, I am concerned that Ms. Glover may be seeking much broader remedial relief than would flow from the Tribunal’s limited jurisdiction over alleged Commission abuse of process at the pre-referral stage. While the request for funding for independent counsel could arguably flow from a finding of abuse in these circumstances, the other remedies appear on their face to be overly broad or too imprecise. Before the Tribunal permits an inquiry and full hearing into the alleged abuse of process, Ms. Glover will be required to specify the precise remedies she is seeking and particularize the material facts upon which she intends to rely.

14In view of the above, I make the following procedural directions:

a. The Tribunal will schedule a three hour conference call at which time the Complainant, Ms. Glover, must provide reasons why the Tribunal should entertain the requests set out in sub-paragraphs a and b of paragraph 3 above – that is the request to add the Commission and its Director of Legal Services as respondents and the request to inquire into and seek a remedy for all of the allegations which formed the basis of the settled complaint in file HR-0910-05.

b. Ms. Glover shall have up to one hour to make oral submissions on these issues. The Commission and its Director of Legal Services shall have up to one hour for responding submissions. The Respondents shall have up to fifteen minutes to respond. Ms. Glover shall have up to fifteen minutes for any reply.

c. The parties may, but are not required to submit written materials in advance of the conference call hearing. Any such materials must be served on all other parties and filed with the Tribunal no later than ten days prior to the conference call.

d. Notwithstanding the above, Ms. Glover will be required, at least twenty days prior to the conference call hearing, to set out in writing the precise remedies she is seeking in respect of the abuse of process allegations as well as any material facts upon which she intends to rely, as provided in paragraph 13 above.

e. The purpose of hearing the parties as set out above is solely to determine whether the Tribunal will entertain the requests in sub paragraphs 3a and 3b, not whether the requests will be granted. If the Tribunal decides that it will entertain the requests, they will be heard along with the remaining requests.

f. During the conference call, the Tribunal will also set a schedule for the filing of response submissions for the remaining requests set out in Ms. Glover’s November 28, 2007 submissions, along with a hearing date.