Glover v. 571566 Ontario Inc., 2008 HRTO 165

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Complainant

-and-

571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac Tavern,

Vladimir (a.k.a. Walter) Perin Sr., and Walter Perin Jr.

Respondents

AND 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., and Walter Perin Jr.

Respondents

INTERIM DECISION

Adjudicator: Ian Anderson

Date: October 16, 2008

Citation: 2008 HRTO 165

Indexed as: Glover v. 571566 Ontario Inc.

Human Rights Tribunal of Ontario

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Decision

1The Tribunal is in receipt of a letter dated July 10, 2008 from counsel for the Commission. (The Commission is participating in these proceedings in two capacities and is separately represented in each of those capacities: Mr. Rajan appears as counsel for the Commission as party referring the complaint; Ms. Twohig appears as counsel for the Commission, and Mr. Schwartz, as potential responding parties. I continue the practice I adopted in the May 29, 2008 decision of referring to the Commission when appearing in the former capacity as the “Commission”, while referring to the Commission when appearing in the latter capacity as a “potential responding party”. The letter in question originated from Mr. Rajan.)

2Counsel for the Commission takes the position that I am without jurisdiction to hear this matter. Counsel notes that these complaints had originally been assigned to the Chair of the Tribunal, Michael Gottheil. On January 17, 2008, Mr. Gottheil issued a decision, Glover v. 571566 Ontario Inc. 2008 HRTO 5,, which stated:

For purely practical reasons, and in an effort to reduce the number of collateral issues in these proceedings, the Tribunal will reassign these complaints to a different adjudicator. The dates for the conference call hearing and the oral hearing set out in the December 20, 2007 decision are vacated.

The Tribunal subsequently reassigned the complaints to me.

3The Commission references section 33(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which provides:

If a panel of the Tribunal is unable for any reason to exercise or perform the powers or duties of the Tribunal, the chair of the Tribunal may assign another panel in its place.

4The Commission argues that in Le Conseil Des Ecoles Francaises de la Communaute Urbaine de Toronto v. OHRC; Moffat v. Kinark Child & Family Services, [1996] O.J. No. 1301, the Divisional Court held, in interpreting a nearly identical provision under the old Code, that such reassignments are only permissible in “exceptional or rare circumstances”. The Commission argues that the reasons provided by Mr. Gottheil in deciding to reassign the complaints do not meet this test with the result that I am without jurisdiction and the complaints must remain with Mr. Gottheil.

5Assuming without deciding that Le Conseil Des Ecoles Francaises continues to govern the reassignment of complaints before the Tribunal, prior to the hearing of any evidence and notwithstanding the provisions of the new Code, the Tribunal’s Rules of Procedure and the current provisions of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, I am not persuaded by the Commission’s argument. The reassignment of these complaints did, in my view, take place in exceptional and rare circumstances. The history of these complaints is summarized in my decision dated May 29, 2008. In short, a number of procedural issues have been raised in these complaints. Mr. Gottheil issued a number of decisions in relation to these issues. On December 21, 2007, Ms. Glover brought a motion that Mr. Gottheil recuse himself on the basis of alleged bias and that all of his decisions be quashed. Such an allegation of bias is both exceptional and rare. It is collateral to the substance of the complaints. Mr. Gottheil’s decision of January 17, 2008 to reassign the complaints was issued in response to this motion.

6A decision with respect to issues argued on June 19, 2008 will issue shortly. The hearing scheduled for October 22, 2008 is cancelled.