Guilmoutdinov v. Ontario College of Teachers, 2009 HRTO 2130

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vladimir Guilmoutdinov, Vladimir Kavtsov and Nadejda Ratchinskaia

Complainants

-and-

Ontario Human Rights Commission

Commission

-and-

Ontario College of Teachers

Respondent

RECONSIDERATION DECISION

Adjudicator: David A. Wright Date: December 9, 2009 Citation: 2009 HRTO 2130 Indexed as: Guilmoutdinov v. Ontario College of Teachers

1This is a Request by the complainants for Reconsideration of the Tribunal’s Decision dismissing their complaints: 2009 HRTO 1843. The Tribunal held that the complainants were barred from proceeding by virtue of s. 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The parties took different positions on whether s. 34(11) applied in the circumstances, as the complaints were referred to the Tribunal by the Commission before this new section of the Code took effect on June 30, 2008. The Tribunal engaged in a detailed analysis of the transitional provisions of the Code; the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F; and the jurisprudence under both, and came to the conclusion that s. 34(11) does apply to these complaints.

2Rule 102 of the Tribunal Rules reads as follows:

A request for reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing;

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions and orders.

3The applicants filed two documents with their Request for Reconsideration. The first, a document entitled “Conflict of Interests”, suggests that Vice-chair Alan Whyte, who made the Decision on behalf of the Tribunal, is not impartial because of the nature of his practice as a lawyer before being appointed to the Tribunal. The second document, entitled “Comments to Paragraphs from Final Decision”, takes issue with the Tribunal’s reasoning in its Decision.

Impartiality

4First, the applicants allege that they have been denied fairness because Vice-chair Whyte was the decision-maker in this matter. Prior to his appointment to the Tribunal in September of 2008, Vice-chair Whyte was a partner with the law firm of Hicks Morley Hamilton Stewart Storie, LLP. It is not fully clear that the applicants are aware that Vice-chair Whyte is no longer associated with Hicks Morley, but they appear to allege that his former practice leads to a reasonable apprehension of bias that should result in the reconsideration of the Tribunal’s decision.

5The applicants make various arguments about why Vice-chair Whyte’s former association with Hicks Morley affects his impartiality. Among others, they allege various connections between that firm and McCarthy Tétrault LLP, counsel for the respondent, including through various lawyers who have worked for both firms at different stages in their careers. They note Hicks Morley’s extensive practice in representing employers in Ontario’s education system. They allege that a conflict results from the fact that one of the co-chairs of the Tribunal’s Practice Advisory Committee practices at Hicks Morley and that a member of that Committee previously practiced law with McCarthy Tétrault.

6It is a basic principle of procedural fairness that an adjudicator be free of any reasonable apprehension of bias. The legal principles to be applied 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.

7The Tribunal has a Code of Professional and Ethical Responsibilities (“Code of Responsibilities”) for its members, which is posted on its web site at www.hrto.ca. Sections 17 and 18 read as follows:

17. A member shall not mediate or adjudicate in any proceeding, or participate in Tribunal discussions with respect to any matter, if s/he believes that a reasonable person could believe that his/her impartiality may be affected by a personal interest or by a relationship with one of the parties, a witness, or a representative.

18. A member will not normally be eligible to conduct a mediation or adjudication involving a party or representative with whom s/he was formerly in a significant professional relationship until a period of one year has elapsed from the termination of the relationship.

Even if one accepted the alleged relationship between Hicks Morley and counsel for the respondent College, it is evident that these provisions do not affect the issues in this proceeding, as Vice-chair Whyte was not in a “significant professional relationship” with any of the respondents in his former legal practice, and it is more than a year since he ended that practice.

8In Goodridge v. Toronto Police Services Board, 2009 HRTO 94 at para. 20, the Tribunal noted that compliance with the Code of Responsibilities does not determine the question of reasonable apprehension of bias. The Tribunal noted in that case, at para. 14, that this issue must be considered with a full appreciation of the relevant factors, including the nature of administrative tribunals, the role of a lawyer, and the meaning of impartiality.

9As noted by the Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 57, impartiality is the fundamental qualification for a judge, and this, of course, is true for Tribunal adjudicators. Impartiality, however, is not an absence of prior experience with the issues in question, but rather means having an open mind which is open to persuasion (Wewaykum, supra, at para. 58). There is a presumption of impartiality and the onus is on the person seeking disqualification to establish a reasonable apprehension of bias.

10Members of this Tribunal have expertise in human rights. Under s. 32 of the Code, members must be selected through a competitive process that takes into account “[e]xperience, knowledge or training with respect to human rights law and issues”, “[a]ptitude for impartial adjudication” and “[a]ptitude for applying the alternative adjudicative practices and procedures that may be set out in the Tribunal rules”.

11One of the ways in which such experience may be obtained is through representation of clients as a lawyer. Various members of this Tribunal have had careers prior to their appointment to the Tribunal representing clients such as equality-seeking groups, employers, unions, human rights complainants, respondents, human rights commissions and employees. As noted in Goodridge, supra, members impartially adjudicate cases involving litigants who have perspectives for which they may have advocated in the past.

12Moreover, lawyers are ethically bound to make the best possible arguments on behalf of their clients, whether or not they reflect the lawyer’s personal views. Therefore, the fact that a person acting as a lawyer advocated a particular position does not mean that he or she agrees with it. In R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 119, the Supreme Court of Canada noted that “good judges will have a wealth of personal and professional experience, which they will apply with sensitivity and compassion to the cases they must hear”. The same applies to Tribunal members and their diversity of backgrounds.

13I find that that Vice-chair Whyte’s legal practice prior to his appointment to the Tribunal does not create a reasonable apprehension of bias. Like any member of a Tribunal or judge who previously represented clients as a lawyer, his role as a Tribunal Vice-chair is to make a neutral decision based upon the facts and the law. There is no reasonable basis to find that his prior practice creates an apprehension of bias. The hypothetical well-informed and reasonable person understands the change in role that a lawyer makes when becoming an impartial adjudicator.

14The applicants also suggest that a reasonable apprehension of bias arises because one of the co-chairs of the Tribunal’s practice advisory committee is a lawyer at Hicks Morley. The mandate of the Practice Advisory Committee (whose Terms of Reference are also posted on the Tribunal’s website www.hrto.ca) is to function as a resource to the Tribunal for consultation and feedback from those in the community it serves regarding its policies, practices, rules, practice directions and services. It is specifically designed to have representation from the perspectives of different persons who regularly appear or represent parties before the Tribunal. One of the co-chairs represents the perspective of applicants and the other represents the perspective of respondents. Its membership is specifically balanced among individuals who represent each of these perspectives. This type of committee is frequently used by tribunals to promote responsiveness to the communities they serve. Its membership does not create a reasonable apprehension of bias in the Tribunal.

15I make one final comment on the issue of reasonable apprehension of bias. The applicants have been aware for a considerable period of time that Vice-chair Whyte was hearing this matter. It is a principle of the law of bias that a party that alleges a reasonable apprehension of bias to do so at the earliest possible opportunity. As noted by the British Columbia Court of Appeal in Eckervogt v. British Columbia, 2004 BCCA 398 at para. 48:

I do not think it is proper for a party to hold in reserve a ground of disqualification for use only if the outcome turns out badly. Bias allegations have serious implications for the reputation of the tribunal and in fairness they should be made directly and promptly, not held back as a tactic in the litigation. Such a tactic should, I think, carry the risk of a finding of waiver. Furthermore, the genuineness of the apprehension becomes suspect when it is not acted on right away.

16As I have determined that there is no reasonable apprehension of bias, there is no need to consider the issue of waiver and its application to the circumstances of this case. However, in general, an allegation of reasonable apprehension of bias should be raised at the outset, not in a Request for Reconsideration.

The Decision on the Merits

17On the substance of the Decision, the complainants’ submissions take issue with the Tribunal’s interpretation of the transition provisions of the Code. The Tribunal has consistently held that Reconsideration is not an opportunity for a party to re-argue its case. As the Tribunal held in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 at para. 56:

As is evident from the Rules and made explicit in Practice Direction #4, reconsideration is not an appeal. It is not an opportunity to re-argue a case. Once the parties to a case have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

18The complainants disagree with the Tribunal’s interpretation of ss. 53 and 55 of the Code. They submit that these provisions are clear on their face that s. 34(11) of the Code does not apply to a complaint that was referred to the Tribunal before June 30, 2008. They argue that the Tribunal’s reasons inappropriately brought “policy” considerations into the interpretation of these provisions.

19I do not agree with the applicants’ submissions and I find that none of the factors set out in Rule 102 apply in the circumstances. The Decision, at paras. 37-44, carefully considered the provisions of the Code and the Legislation Act, the caselaw of the Tribunal and the courts, and applied them to the circumstances of this case.

20The Tribunal considered the purpose of the statutory provisions in question in light of their context. Rather than being an inappropriate importing of “policy”, this reflects the modern approach to statutory interpretation, in which adjudicators and judges consider not only the wording of a statute, but its purpose and context: see, for example, Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2005 SCC 70, at paras. 15-35. In Merk, Binnie J., on behalf of the majority of the Supreme Court of Canada, wrote as follows at para. 15:

Purpose and context are important, as Laskin J. (as he then was) wrote over 30 years ago:

The distinction that I draw is between a purely formal, mechanical view of the law, antiseptic and detached, and a view of the law that sees it as purposive, related to our social and economic conditions, and serving ends that express the character of our organized society.

(B. Laskin, “The Function of the Law” (1973), 11 Alta. L. Rev. 118, at p. 119)

21The decision is consistent with established jurisprudence, and there are no factors that outweigh the interest in finality of Tribunal orders. There is no basis for reconsideration based on any of the factors in Rule 102.

22Accordingly, the Request for Reconsideration is dismissed.