Cormie v. Laurentian University, 2008 HRTO 76

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Allison Cormie

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Laurentian University, Herman Falter, Kathryn Molohon, Pat Julig, Robert Segsworth, and Norma MacRea

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: September 16, 2008

Citation: 2008 HRTO 76

Indexed as: Cormie v. Laurentian University

Human Rights Tribunal of Ontario 655 Bay Street, 14^th Floor Toronto ON M7A 2C7 Phone (416) 314-8419 Fax (416) 314-8743 Toll free 1-866-598-0322 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca

APPEARANCES

Allison Cormie, Complainant ) Geri Sanson, Counsel

Ontario Human Rights Commission ) Eric del Junco, Counsel

Laurentian University, Herman Falter ) Dean T. Palmer, Counsel Kathyn Molohon, Pat Julig ) Robert Segsworth, Norma MacRea, Respondents )

BACKGROUND

1This decision addresses procedural issues that arose during the Pre-Hearing Conference Call in this matter held on September 12, 2008 at 9:00 AM. The background to the issues is set out in the complainant’s reply pleading, which was filed with the Registrar and served upon the other parties at approximately 5:30 PM on September 11, 2008. Counsel for the complainant stated that she had provided Commission counsel with a draft earlier that day. The relevant paragraphs read as follows:

Commission’s Carriage of the Case

5. Commission counsel was advised at the outset of this proceeding of the limited involvement of Dr. Cormie’s counsel due to Dr. Cormie’s financial constraints. More recently, and following counsel for Dr. Cormie’s notice to the parties and Tribunal that she could not continue to act for Dr. Cormie, Dr. Cormie determined that she was unable to retain alternative counsel because she could not afford to do so. Commission counsel was advised of the situation.

6. Most recently, and after learning that Dr. Cormie is unable to afford her own counsel, the Commission wrote to Dr. Cormie stating it’s [sic] position that section 55(3)(a) of the Code meant that the Commission was no longer required to provide “carriage” of Dr. Cormie’s complaint. Such an interpretation comes as a complete surprise to Dr. Cormie, particularly after she has waited close to eight years for the Commission to refer her complaint to the Tribunal and take carriage of her complaint. Dr. Cormie asks that the Commission clarify its intentions so that the Tribunal may issue appropriate directions if necessary to ensure that Dr. Cormie has the assistance that she needs from Commission counsel by taking the lead on this case and that Commission counsel will assist her in whatever way is necessary in order that she has access to justice in the hearing of her complaint.

7. Dr. Cormie notes that there has not yet been any decision or order by the Tribunal with respect to the interpretation of this issue. Dr. Cormie expects the Commission to appreciate that she already has enough to deal with, without the Commission now using her and her complaint as the “test case” to advance such a prejudicial interpretation of the Commission’s responsibilities in maintaining carriage of her complaint.

8. Should the Commission confirm during the pre-hearing conference call that it’s [sic] intent is to refuse to provide the needed carriage of the complaint, Dr. Cormie requests that the Commission be required to provide her with her own legal counsel to represent her on this matter.

2During the pre-hearing conference call, Commission counsel confirmed that the Commission remains a participant in these proceedings at this time. The parties also agreed to attempt Tribunal mediation prior to the next steps in the litigation. However, the complainant’s counsel asked that the Tribunal: (i) order Commission counsel to clarify the Commission’s intentions regarding its participation in the hearing; and (ii) assess the situation and make an order that counsel be made available to the complainant by the Commission.

3I invited submissions from the parties on whether these issues should be determined during the September 12 conference call or at a later date. Counsel for the complainant asked that the issue be determined during the call and counsel for the Commission and respondents asked that the issue be determined later, so they could have an opportunity to obtain instructions and make submissions. I made the following oral ruling:

I will not hear submissions on the issue of Ms. Sanson’s request today. Having heard the submissions of the parties, in my view it would be procedurally unfair to the Commission and the respondent to do so without the chance for full preparation, and inappropriate for the Tribunal to address the issue without full submissions on the facts and the law.

4Following this ruling, the complainant’s counsel asked for reconsideration. This request was denied. The circumstances of this decision are not among those where reconsideration is available: King v. Toronto Police Services Board, 2008 HRTO 33 at para. 8.

5The parties agreed that in light of this ruling, there was no need for further submissions on the issue until after the mediation took place, if necessary. The next dispute that arose was how any submissions (which the parties agreed should take place after the mediation) should be made. While the complainant wished to make only oral submissions and wanted exemption from the requirement to serve and file a Request for Order During Proceedings under Rules 77-81 of the Tribunal’s Rules of Practice, the other parties asked that she be required to file a request in the normal course and that full written submissions be part of the process. The complainant also asked for two months in order to file written submissions, both in support of her request and in reply to any submissions of the other parties.

6The essence of the complainant’s submissions in support of the request for exemption from the Tribunal’s rules and normal approach was that the Tribunal’s process in Commission-referred complaints is not adapted to self-represented litigants and that it would be unfair to require the complainant, who is not a lawyer, to make written submissions. Dr. Cormie argued that as she will be self-represented, she requires extended periods of time to prepare any written submissions

DISCUSSION

7The Commission remains a party to these proceedings. However, the complainant has raised a concern about the Commission’s future participation as a result of its correspondence raising the issue. As part of the Tribunal’s duty to ensure the fair, just, and expeditious resolution of this matter, the Tribunal will require the Commission to advise, by November 21, 2008, whether its position on participation in the hearing has changed.

8I note that there is nothing novel about the possibility that a referred complaint may proceed without the active participation of the Commission. Under the Human Rights Code, R.S.O. 1990, c. H.19, as it stood prior to June 30, 2008, it was well-established that the Commission could, and did in several instances, withdraw from active participation in a complaint: McKenzie Forest Products Inc. v. Ontario (Human Rights Commission) (2000), 2000 CanLII 5702 (ON CA), 48 O.R. (3d) 150 (C.A.). In Perth v. Human Resources Capital Group Inc., 2008 HRTO 21 at para. 15, Vice-Chair Liang stated:

…the Tribunal has a role in overseeing the Commission’s decision to withdraw from active participation in a complaint, but generally, the scope of its role is related to issues arising out of the transition. The Tribunal will make directions as necessary to minimize the prejudice to the complainant in making the transition from a case in which the Commission has the burden of putting forward the case for hearing, to one in which the complainant will take on that burden.

9The Tribunal’s rules and processes are designed to be understandable and accessible to all parties, whether represented or not, and the Tribunal is committed to fairness and accessibility for all parties. The Tribunal has had and continues to have many self-represented parties appearing before it.

10I disagree that it is inappropriate to require written submissions from the complainant. She has post-graduate university education and there is no reason to think that she cannot express herself in writing. In my view, given the nature of the issues raised by the complainant, written submissions are most appropriate. Even though the other parties were not opposed to the two-month period she requested for her submissions and reply, in my view the time periods for submissions requested by the complainant would lead to inappropriate delay in the resolution of this complaint.

ORDER

11The Tribunal makes the following order:

1. The Commission shall advise the other parties and the Tribunal by November 21, 2008 whether its position on participating in the hearing has changed;

2. If, following the Commission’s notice, the complainant wishes to ask the Tribunal to make any orders regarding the Commission’s participation in the hearing, she shall serve and file a request for order during proceedings in accordance with Rules 77-81, together with argument in support of the request in the form of a letter, by December 15, 2008;

3. As set out in Rule 78, the request must include a statement of the order(s) that she requests the Tribunal make;

4. The complainant’s letter shall include all submissions in support of the requested order(s);

5. If, when the request is made, the Commission has not stated an intention to withdraw from the case, the complainant shall include submissions as to why the Tribunal should address the issue while the Commission remains a participant;

6. If, when the request is made, the Commission has stated an intention not to participate, the complainant shall include a statement of whether the orders she requests are required for a transition from the Commission putting forward the case for hearing to the complainant putting forward the case for hearing, and why, If the orders she requests relate to other matters, the complainant shall set out her reasons why the principles set out in Perth, supra do not apply in the circumstances or why the Tribunal should depart from Perth;

7. The Tribunal shall make further directions following review of the complainant’s written submissions;

8. This schedule shall not affect the scheduling of a further pre-hearing conference call at the earliest possible opportunity following mediation if the parties have not settled the complaint.