Noronha v. 1174364 Ontario Limited, 2009 HRTO 1292

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Noronha

Applicant

-and-

1174364 Ontario Limited, Scher & DeAngelis Professional Corporation, Hugh Scher, and Manuel Ferreira

Respondents

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: August 21, 2009

Citation: 2009 HRTO 1292

Indexed as: Noronha v. 1174364 Ontario

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), alleging reprisal contrary to section 8.

2Following two interim decisions in these proceedings, the applicant raised a claim of apprehension of bias and requested that I recuse myself from hearing this Application.

3This decision determines the applicant’s claim of bias, and his request that I recuse myself.

Background

4The applicant was the representative, and is the spouse of the applicant in a separate, section 53(3) Application that had been filed with the Tribunal. The applicant in this Application, alleges that he suffered reprisal and threats of reprisal under the Code because the respondents in the s.53(3) Application made a Request for an Order, pursuant to the Tribunal’s Rules, to have him removed as representative.

5The section 53(3) Application was heard by Alternate chair Joachim. She considered, but denied, the respondents’ request to disqualify the applicant as representative. In a decision dated March 18, 2009, the Tribunal dismissed the section 53(3) Application. The Tribunal also provided full reasons for its ruling on the request to disqualify. See: Carlos v. 1174364 Ontario, 2009 HRTO 311).

6After receiving and reviewing the reprisal Application, the Tribunal determined there were two significant jurisdictional issues that were evident. As a result, by interim decision dated April 9, 2009 (2009 HRTO 425), I directed the parties to make written submissions on the following issues:

a) whether the protection from reprisal in section 8 applies to a party’s representative, and more particularly, whether the right of a person to “participate in proceedings under this Act… without reprisal or threat of reprisal”, covers the right to be a representative in a proceeding before the Tribunal, and

b) whether a privilege attaches to a formal request to have a person removed as a representative, made under the Tribunal’s Rules

7After reviewing the written submissions of the parties, I determined that it was fair and appropriate to hear oral submissions on these two issues, and to deal with them on a preliminary basis. At paragraph 6 of my June 29, 2009 interim decision (2009 HRTO 935), I held:

The Tribunal stresses that it has made no determination of the above issues, or any other question related to this Application, but only that it is fair, just and expeditious to deal with these issues as preliminary matters at an oral hearing. Should the Tribunal find that section 8 covers the applicant as representative, and there is no privilege that attached to the respondent’s formal request to have him removed, it will schedule a further hearing to deal with the merits of the Application.

8Following the decision, the applicant raised an apprehension of bias and requested that I recuse myself.

The Parties’ Positions

9The applicant makes a number of arguments in support of his request, but it is primarily based on the fact that the Tribunal first raised the issue of privilege, prior to the Application having been served on the respondents, and prior to the respondents having filed their Response. He argues that the identification of the privilege issue, and directing the parties to provide submissions on that issue, was improper and demonstrates a bias in favour of the respondents.

10The applicant asserts, in essence, that by identifying and seeking submissions on the legal issue of privilege, I assisted the respondents, and have prejudged the issue.

11The applicant also makes the allegation that I have colluded with the Alternate chair (who dismissed the section 53(3) Application) and with counsel for the respondents. He states that “there may have been private, improper communications between them in respect of this extremely questionable issue of ‘absolute privilege.’” The applicant provides no foundation for this assertion, and it will not be addressed.

12The respondents oppose the applicant’s request. They argue the applicant has not met the high standard, as required by the jurisprudence, to establish an apprehension of bias and the recusal of an adjudicator.

13The respondents also argue that the claim of bias and the request that I recuse myself is frivolous, and consistent with how the applicant has conducted himself in various litigation, both before the Tribunal and before the Landlord and Tenant Board. The respondents argue that the applicant has, on numerous occasions, alleged bias and improper or unethical conduct as against adjudicators and counsel.

Decision

14The legal principles to be applied in considering apprehension of bias are well-established. De Grandpré J. wrote in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394 that:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

(Emphasis Added)

15In my view, the applicant’s position is not in accord with what an “informed person…having thought the matter through, would conclude.” His claim that the Tribunal’s decisions raise an apprehension of bias is not reasonable.

16The applicant appears to have a fundamental misunderstanding of procedure in administrative tribunals, and in many circumstances, the Courts.

17Modern approaches to procedural fairness do not require a Tribunal, in its dispute resolution functions, to be completely passive, particularly when it comes to case management, and the effective use of adjudicative resources. The mere fact that an adjudicator identifies an issue which he or she believes is important in a proceeding, and seeks submissions thereon, does not mean that the adjudictor is favouring one of the parties, or that the adjudicator has pre-determined the issue or the application. One of the reasons Tribunal adjudicators are selected on the basis of their specialized, subject area expertise, is to ensure the tribunal has the ability to identify relelvant issues, which enables disputes to be resolved fairly and expeditiously.

18The Code reflects this modern approach to case management, and specifically authorizes the Tribunal to adopt non-traditional approaches to adjudication, and to take a more “active” role in the resolution of applications. Section 41 provides:

This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.

Section 43(3) (a) and (b) state that the Tribunal’s Rules may:

(a) provide for and require the use of hearings or of practices and procedures that are provided for under the Statutory Powers Procedure Act or that are alternatives to traditional adjudicative or adversarial procedures;

(b) authorize the Tribunal to,

(i) define or narrow the issues required to dispose of an application and limit the evidence and submissions of the parties on such issues, and

(ii) determine the order in which the issues and evidence in a proceeding will be presented

19Finally, the Tribunal Rules provide that the Tribunal will review applications, before they are served on respondents, to determine whether they raise claims which fall within the scope of the Code, and whether the Tribunal has the authority to deal with the application. The Rules also permit the Tribunal to identify and define issues, and to determine when those issues should be heard. The Tribunal has the authority to decide whether matters should be heard orally or in writing, though no application that is within the Tribunal’s jurisdiction will be finally disposed of without providing the parties the opportunity to make oral submissions.

20There is nothing in these proceedings that demonstrates the Tribunal acted in a way that is arbitrary, or denied the applicant procedural fairness, as he alleges. Identifying significant threshold issues, and directing that an oral hearing be scheduled to hear the parties on those issues, does not raise a reasonable apprehension of bias, and I decline to recuse myself. The matter will proceed to hearing as previously directed.