Glover v. 571566 Ontario Inc. et al., 2008 HRTO 32

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: Ian Anderson Date: May 29, 2008 Citation: 2008 HRTO 32 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@ontario.ca Website www.hrto.ca

APPEARANCES:

Martha Glover, Complainant ) Geri Sanson, ) Counsel

571566 Ontario Inc. o/a Cadillac Tavern, ) 1528433 Ontario Ltd. c.o.b. Cadillac ) Michelle Packer, Tavern, Vladimir (aka Walter) Perin Sr. ) Counsel and Walter Perin Jr., Respondents )

Ontario Human Rights Commission, ) Prahbu Rajan, as party referring the complaint ) Counsel

Ontario Human Rights Commission and ) Kim Twohig, Hart Schwartz, as potential Respondents ) Counsel

INTRODUCTION

1Tribunal File No. HR-1207-06 is a complaint initiated pursuant to section 32(2) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the "Code") by the Ontario Human Rights Commission (the "Commission's complaint"). It seeks certain orders in relation to the settlement of a human rights complaint by Martha Glover against 571566 Ontario Inc. o/a Cadillac Tavern, Mr. Vladimir (aka Walter) Perin Sr. and Mr. Walter Perin Jr. (the "original complaint" and the "settlement" or "settlement of the original complaint"). It names the Commission as complainant and 571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac Tavern, Mr. Vladimir (aka Walter) Perin Sr. and Mr. Walter Perin Jr. as responding parties (collectively, the "respondents"). It was referred to the Tribunal by the Commission on December 1, 2006.

2On December 11, 2006, Ms. Glover filed a Notice of Motion in the Commission's complaint seeking the following relief:

a) An order adding Ms. Glover as a party complainant;

b) An order that the Commission is in a conflict of interest position with respect to Ms. Glover, and as a result, further proactive measures are required in order to ensure that Ms. Glover can fully participate in this proceeding;

c) An order adding the Commission and its Director of Legal Services, Hart Schwartz, as party respondents;

d) An order prohibiting any internal Commission employee, contract or otherwise, to act as counsel;

e) An order requiring the Commission to fully pay for Ms. Glover's counsel so that she may be properly represented;

f) An order inviting the Attorney General to intervene in its supervisory capacity over the Commission in order to ensure that justice is both done and seen to be done;

g) Such further and other relief as may be necessary and just and permitted by the Tribunal.

3Tribunal File No. HR-1331-07 is a complaint initiated by Ms. Glover ("Ms. Glover's complaint"). It also seeks certain orders in relation to the settlement of the original complaint. In her complaint to the Commission, Ms. Glover named the Commission itself and Mr. Schwartz as respondents, in addition to 571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac Tavern, Mr. Vladimir (aka Walter) Perin Sr. and Mr. Walter Perin Jr. Ms. Glover's complaint sought remedies against the Commission and Mr. Schwartz and certain additional remedies against the respondents, in particular that the allegations in her original complaint be heard and determined as a consequence of the respondents' breach of the settlement of the original complaint. On August 21, 2007 the Commission referred part of Ms. Glover's complaint to the Tribunal. Ms. Glover's complaints against the Commission and Mr. Schwartz were not referred to the Tribunal and nor was Ms. Glover's request that the allegations in her original complaint be heard and determined as a consequence of the respondents' breach of the settlement of the original complaint.

4By letter dated September 21, 2007, following an initial conference call in relation to Ms. Glover's complaint, the Registrar of the Tribunal confirmed the parties' agreement, and the Tribunal's order, that Ms. Glover's complaint be consolidated with the Commission's complaint.

5On November 28, 2007 Ms. Glover sought orders in the consolidated complaint that:

a) The Commission and Mr. Schwartz be added as party respondents as was originally included in Ms. Glover's complaint;

b) All allegations found in Ms. Glover's complaint be heard and determined in this proceeding (i.e. that the allegations in her original complaint be heard and determined as a consequence of the respondents' breach of settlement);

c) A finding be made that the Commission and Mr. Schwartz have engaged in an abuse of process causing such prejudice to Ms. Glover requiring immediate and ongoing remedial relief;

d) Remedial relief be ordered for Ms. Glover which includes funding by the Commission and Mr. Schwartz for representation of Ms. Glover by her own counsel that dates back to the Commission's erroneous filing of the Form 3 and the consent order in relation to the 2001 complaint with the Tribunal on (or about) March 31, 2006; and

e) 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.

6The Chair of the Tribunal, Michael Gottheil, issued a number of decisions with respect to the issues raised by Ms. Glover's December 11, 2006 and November 28, 2007 motions, and ancillary 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. Mr. Gottheil did not determine this issue. Rather on January 17, 2008, he issued a decision [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.

7The Tribunal subsequently reassigned the complaints to me.

8A hearing was held on May 8, 2008 for the purposes of canvassing what issues remained in dispute as between the parties and the procedure to be adopted in addressing those issues. Counsel for Ms. Glover and the Commission, in its capacity as complainant, participated for the entire hearing. Counsel for the Commission and Mr. Schwartz as potential responding parties (the "potential responding parties") and counsel for the respondents named in the complaints as referred to the Tribunal by the Commission participated for a portion of the hearing and then took their leave.

9During the hearing Ms. Glover, by her counsel, agreed, with two exceptions, that the relief she sought in her motion of December 11, 2006 is subsumed by her motion of November 28, 2007. The two exceptions are her December 11, 2006 remedial requests (d) (an order prohibiting any internal Commission employee, contract or otherwise, to act as counsel) and (f) (an order inviting the Attorney General to intervene in its supervisory capacity over the Commission in order to ensure that justice is both done and seen to be done). During the hearing on May 8, 2008, Ms. Glover's counsel agreed to withdraw these remedial requests. In the result, Ms. Glover's November 28, 2007 remedial requests subsume all of her December 11, 2006 remedial requests.

The Issues in Dispute

10The issues referred to the Tribunal by the Commission with respect to the original responding parties remain in dispute.

11All parties, and the potential responding parties, agreed that effect should be given to their prior agreement to consolidate Tribunal File Nos. HR-1207-06 and HR-1331-07.

12Ms. Glover took the position that nine other issues remained in dispute:

a) The "email issue";

b) Duplication of Commission counsel;

c) Bias or reasonable apprehension of bias on the part of Mr. Gottheil and consequent quashing of all decisions in Tribunal File Nos. HR-1207-06 and HR-1331-07 to date;

d) Admissibility of evidence of Eddie Taylor;

e) Request for production to Ms. Glover by the Commission;

f) Production of certain materials by the Commission to Mr. Taylor;

g) Ms. Glover's allegation of abuse of process by the Commission and Mr. Schwartz;

h) Ms. Glover's request that the Commission and Mr. Schwartz be added as party respondents; and

i) Ms. Glover's request that the allegations in her original complaint be heard and determined in these proceedings as a consequence of the respondents' breach of the settlement of the original complaint.

13As I understand it at this point (without the benefit of full submissions from counsel), issue (a), the "email issue," relates to the fact that due to a technical problem when counsel for the Commission sent certain emails to the Tribunal with a copy to Ms. Glover's counsel, the copy (either in whole or in part) was not received by Ms. Glover's counsel. There are two parts to this issue. The first is to ensure on a go forward basis that the problem is addressed. As I understand it, counsel for the Commission and Ms. Glover have either worked out a solution or believe that they will be able to do so. If this proves not to be the case, then counsel may advise the Tribunal and I will give further consideration to that part of the issue. The second is that the difficulties with the email gave rise, in whole or in part, to Ms. Glover's request that Mr. Gottheil recuse himself, i.e. issue (c). Among Ms. Glover's concerns is that the Tribunal incorrectly assumed that her counsel had received the emails and failed to reply to them. In her view, the Tribunal's resulting decisions had the effect of improperly impugning her counsel's conduct. This was, in whole or in part, the basis for the recusal motion. The email issue is not relevant to any other issue which Ms. Glover considers to be in dispute.

14Issue (b), the duplication of counsel issue, arises from the fact that Prabhu Rajan, counsel from the Legal Services Branch of the Commission, appears on behalf of the Commission with respect to its complaint, initiated under section 32(2) of the Code, and with respect to Ms. Glover's complaint, pursuant to section 39(2)(a) of the Code, while Kim Twohig, General Counsel, Crown Law Office – Civil, Ministry of the Attorney General, appears on behalf of the Commission, and Mr. Schwartz, as potential responding parties. As I understand it, Ms. Glover is prepared to have either Mr. Rajan or Ms. Twohig speak to a given issue, but not both. In the alternative, to the extent that both are permitted to speak to a given issue, Ms. Glover's position would be that those submissions ought not be duplicative. In my view, it is most useful to address this issue within a specific context. Accordingly, counsel are directed to be prepared to address this issue if and when it next arises.

15The Commission and the potential responding parties take the position that Mr. Gottheil has finally determined the other issues that Ms. Glover identifies as still being in dispute. The Commission specifically takes the position that Mr. Gottheil has addressed Ms. Glover's issues (d), (e), (g), (h) and (i). It is prepared to accept that the email issue appears to have some relevance to issue (c), Ms. Glover's argument that Mr. Gottheil was biased. Thus, the Commission argues that the email issue should be addressed first, and then the bias issue. The Commission argues that if Ms. Glover's argument that Mr. Gottheil was biased does not succeed, then his prior decisions must be treated as effectively final with respect to the issues that they address.

16The respondents take no position on these preliminary issues, other than with respect to remedies requested against them, whether as part of the original referrals by the Commission or the additional remedies which Ms. Glover seeks to add.

17Ms. Glover states that Mr. Taylor's evidence is relevant to the issues of abuse of process, the addition of the Commission and Mr. Schwartz as respondents and her request that the allegations in her original complaint be added to the matters currently before the Tribunal. It also appears that Ms. Glover takes the position that the documents which she seeks to have produced by the Commission are arguably relevant to this issue.

18Ms. Glover does not agree that Mr. Gottheil's decisions finally determined that she cannot pursue the issues of abuse of process, the addition of the Commission and Mr. Schwartz as respondents, her request that the allegations in her original complaint be added to the matters currently before the Tribunal, or the admissibility of Taylor's evidence or production issues which relate to those issues. She agrees, however, that if Mr. Gottheil did not finally determine that she cannot pursue her remedial requests within the context of her complaint, then issue (c), her allegation that Mr. Gottheil was biased and his decisions must be quashed, need not be addressed.

19Given the positions of the parties, in my view the most sensible way to proceed is to first determine whether the effect of Mr. Gottheil's decisions is to preclude me from further considering issues (d), (e), (g), (h) and (i). In addressing this question, the parties, and potential responding parties, are directed to be prepared to make submissions not only with respect to whether Mr. Gottheil's decisions with respect to these matters were "final", but also if they were final, whether any member of the Tribunal would have the power to reverse them, whether by quashing or otherwise, and if so in what circumstances. In this respect, the parties, and potential responding parties, should come prepared to address the following:

1. The significance, if any, of the fact that the Commission's complaint was referred to the Tribunal on December 1, 2006. In this respect, I note that Rules 98 to 107 of the Tribunal's Rules of Practice permit the Tribunal to reconsider final decisions, however, Rule 3 provides that those Rules only apply with respect to a complaint referred to the Tribunal by the Commission on or after December 20, 2006.

2. Whether the principles expressed in Chandler v. Association of Architects (Alberta) 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848 have applicability to the Tribunal given that section 42(3) of the Code permits an appeal from a decision of the Tribunal to the Divisional Court on questions of law or fact or both.

3. The principles expressed in Zsoldos v. Ontario Assn. of Architects (2004) 128 ACWS (3d) 1051 (Ont. C.A.), leave to appeal to SCC refused 198 OAC 403n.

20A hearing will be held on June 17, 2008, continuing on June 19, 2008 if necessary, for the purposes of hearing submissions on whether the effect of Mr. Gottheil's decisions is to preclude Ms. Glover from advancing issues (d), (e), (g), (h) and (i). At the same time, the Tribunal will hear submissions with respect to whether the Commission should be required to produce further documents to Mr. Taylor. The hearing will be held in Toronto. Counsel for the respondents may attend by telephone should she choose. Should Ms. Glover, the respondents or the potential responding parties wish to attend, they will be similarly accommodated.

21The Tribunal's file in relation to these two complaints is already voluminous. In order to facilitate the hearing, counsel are requested to file a letter with the Tribunal on or before June 13, 2008 identifying any documents already in the Tribunal's file which they intend to refer to in the course of their arguments. At the same time, counsel are to file copies of any authorities not already filed with the Tribunal upon which they intend to rely in the course of their arguments.

22In the event that it is necessary to consider issue (c), Ms. Glover states that all parties, and potential parties, have had a full opportunity to file written submissions on the issue, and accordingly the issue should be addressed by the Tribunal on the basis of written submissions already filed, except to the extent that those submissions are modified as a result of a review of the complete sequence of emails. In this respect, she proposes that she be permitted to take the Tribunal through the emails, with a right of response from the other parties, and potential responding parties.

23It is not clear whether the other parties and potential responding parties are prepared to agree that issue (c) be determined in the manner described by Ms. Glover. If they are, then it would be efficient to also conduct the review of the emails on the June 17 and 19, 2008 hearing dates. Accordingly, the other parties, and potential responding parties, are to advise the Tribunal whether they are prepared to agree to this manner of proceeding with respect to issue (c) by June 6, 2008. If all parties and potential responding parties so agree, then the emails will also be reviewed on June 17 and 19, 2008.

24Subject to any other agreement between the parties, and the potential responding parties, the order of submissions on June 17 and 19, 2008 shall be as follows:

a) The Commission, the potential responding parties and the respondents with respect to the issues identified in paragraph 19;

b) Ms. Glover with respect to the production of further documents to Mr. Taylor, in response on the issues identified in paragraph 19 and, if agreed to by the other parties and potential responding parties, in review of the emails as they relate to the written submissions already filed in relation to issue (c);

c) The Commission, the potential responding parties and the respondents in response on the production of further documents to Mr. Taylor, in reply on the issues identified in paragraph 19, and, if agreed, in response to the review of the emails as they relate to the written submissions already filed in relation to issue (c); and

d) Ms. Glover in reply on the production of further documents to Mr. Taylor and, if agreed, in reply on the review of the emails as they relate to the written submissions already filed in relation to issue (c).

25It is apparent that further hearing days will be required with respect to this matter, irrespective of the Tribunal's decision on the effect of Mr. Gottheil's decisions. Given the difficulties posed by coordinating the schedules of multiple parties counsel and the Tribunal, the parties, and the potential responding parties, are directed to provide the Registrar with their availability for hearing dates over the next 12 months.