HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William David Smith

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Menzies Chrysler Incorporated, Tom Graham, Clark Menzies and Mark Lyons

Respondents

RECONSIDERATION DECISION

Adjudicator: David A. Wright

Date: December 29, 2009

Citation: 2009 HRTO 2270

Indexed as: Smith v. Menzies Chrysler

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[1] This is a Request by the respondents Menzies Chrysler Incorporated, Clark Menzies and Mark Lyons for reconsideration of the Tribunal’s Decision in this matter, reported at 2009 HRTO 1936. The respondents rely upon Rule 102 (c), which reads as follows:

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

(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;

[2] The respondents make two principal arguments in support of their request. First, they note the previous request that Vice-chair Chadha recuse herself as a result of a reasonable apprehension of bias: see the Interim Decision dated June 13, 2008, 2008 HRTO 37, (the “Interim Decision”) at paras. 10-17. They allege that it was a violation of procedural fairness for the adjudicator accused of bias to make the decision about whether a reasonable apprehension of bias existed. They also allege that there was, in fact, a reasonable apprehension of bias. Second, they allege that the Tribunal failed to consider or apply the Canadian Human Rights Tribunal decision in Hill v. Air Canada, 2003 CHRT 9 at para. 163 to find that the applicant cannot pursue his complaint because he participated in inappropriate activities.

Bias

[3] In its Interim Decision, the Tribunal explained the arguments and its decision on the issue of reasonable apprehension of bias:

At the outset of the motion on January 18, 2008, Mr. Mack, counsel for personal respondent Graham, asked that I recuse myself as the Vice-Chair for apprehension of bias. Mr. Mack stated that the basis for his request was that he perceived that he and I had “clashed” during the Initial Conference Call and that he was concerned any “disfavour” towards him may be carried over to his client.

When asked to indicate his position, Mr. Mazar, counsel for the Group respondents, stated he supported the bias motion. Mr. Mazar noted that, during the Initial Conference Call, Mr. Mack, counsel for personal respondent, had “made a couple of humorous comments” which precipitated my request that Mr. Mack refrain from this type of humour. Mr. Mazar asserted that my request to Mr. Mack gave rise to “potential bias” and may have an effect on the proceeding.

Counsel for the Commission objected to the respondents’ request that I recuse myself and stated that there was no evidence to support an allegation of reasonable apprehension of bias. Counsel for the complainant stated he “did not hear anything during the Initial Conference Call that would indicate a basis for reasonable apprehension of bias”. He further submitted that no client parties were present on the conference call and a perception by a counsel of disfavour against counsel cannot be said to pertain to his client.

After recessing to carefully consider the parties’ submissions, I made a brief oral ruling finding that my direction to Mr. Mack during the Initial Conference Call asking him to refrain from a certain line of humour did not give rise to a reasonable apprehension of bias. The following are my reasons detailing that decision.

As I noted in my oral ruling, the threshold test for reasonable apprehension of bias promulgated by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 is a high standard. The apprehension of bias must be both reasonable and serious, supra at 395. The test, at 394, is as follows:

[T]he 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…[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think it is more likely than not that the [decision-maker], whether consciously or unconsciously, would not decide fairly.

The only concern articulated by the respondents as the basis for an apprehension of bias was my single request to Mr. Mack during the Initial Conference Call. Specifically, I asked Mr. Mack, to refrain from joking about the allegations in the case. I note that Mr. Mack acceded to my request and no further discussion regarding this matter occurred.

Upon considering the above-noted test in the context of the exchange between Mr. Mack and myself, I concluded that the circumstances of the Initial Conference Call did not give rise to a reasonable apprehension of bias. I held that a reasonable person, viewing the matter realistically and having thought the matter through, would not perceive my direction to Mr. Mack reflected a lack of neutrality about the current dismissal motion or a predisposition towards the merits of the complaint. I concluded the alleged “disfavour” did not meet the threshold necessary to support disqualification for a reasonable apprehension of bias. Accordingly, the motion to recuse for apprehension of bias was dismissed.

I add that, in certain circumstances like this case, a simple request by an adjudicator to counsel to refrain from a particular line of humour is consistent with the Vice-Chair’s responsibilities to foster an atmosphere conducive to a judicial process and respectful of, and sensitive to, the human rights issues that come before the Tribunal. Although Tribunal hearings can be less formal and legalistic, particularly with respect to rules of evidence, so as to promote accessibility, flexibility and expeditiousness, a relaxed tone to the proceedings does not diminish the seriousness of the rights, responsibilities and defences provided under the Code. A human rights hearing is a legal proceeding and it is critical that all parties, including counsel or representatives, maintain a level of decorum fitting the quasi-judicial nature of the process and necessary for the orderly administration of the Tribunal hearing.

[4] It is standard practice in tribunals and courts that where a party seeks recusal of a judge or adjudicator sitting alone, the request is made and decided by the judge or adjudicator hearing the matter: see L. Sossin and P. Bryden, “Judges”, in Adam M. Dodek and Jeffrey G. Hoskins, Q.C., Canadian Legal Practice: A Guide for the 21st Century looseleaf (Markham: LexisNexis, 2009) at 16-60 to 16-61; R. v. Duong, 1998 CanLII 14950 (Ont. S.C.); Halpin v. Encarnacion, 2009 CanLII 5623 (Ont. L.R.B.) Arsenault-Cameron v. Prince Edward Island, 1999 CanLII 641 (SCC), [1999] 3 S.C.R. 851. This is not considered a violation of procedural fairness.

[5] For the reasons set out in the Tribunal’s Interim Decision, there was no reasonable apprehension of bias. Directing the Tribunal’s proceedings and ensuring an atmosphere conducive to the adjudication of the rights and interests at stake are duties of a Tribunal member, and do not create a reasonable apprehension of bias. The argument that Vice-chair Chadha’s request to counsel not to joke about the allegations in the case created a reasonable apprehension of bias is entirely without merit.

Substance of the Decision

[6] 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 paras. 54-57:

…I have considered what is meant by the requirement of a “conflict”. Given the public interest in finality of decision-making and economy of legal proceedings, as discussed above, a decision should not be reconsidered on the basis of an assertion of an apparent conflict with the result reached in another decision. There must be a conflict with “established” jurisprudence or procedure in the sense that there is a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules.

Parenthetically, even in the event of a departure from settled legal rules, there may be valid reasons why the Tribunal might nonetheless decide not to reconsider a decision. For instance, it is not clear to me that reconsideration must be granted even in the event of conflict where it is evident that the parties have had an opportunity to address the issues and the adjudicator has considered and given reasons for departing from the analysis or conclusion reached in prior cases. Where granting reconsideration in such a circumstance serves no purpose other than an opportunity to re-argue the issue, the Tribunal may well exercise its discretion against reconsidering its decision.

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.

Secondly, assertions of a “conflict” must be analyzed with care and have due regard to the realities and nature of decision-making. Even where there is well-established jurisprudence or procedures, each decision on apparently similar issues is made within its own factual, legislative and policy context. A finding that there is a “conflict” can only be made taking into consideration the full context of the decisions…

[7] I note that the Hill case is not a decision of this Tribunal and an inconsistency with one decision of another human rights tribunal does not justify reconsideration. In any event, the Tribunal’s Decision in this case is in no way inconsistent with the quotation from Hill relied upon by the respondents An examination of the Tribunal’s factual findings makes it clear that the Tribunal specifically found that while the complainant may have engaged in some inappropriate activities he did not violate others’ Code rights: see paras. 159-160. Hill relates to the violation of others’ Code rights by a complainant.

[8] The Request for Reconsideration is dismissed.

Dated at Toronto, this 29th day of December, 2009

“Signed by”

David A. Wright

Interim Chair