Jemila Macanovic v. Ontario Human Rights Commission, 2010 HRTO 2100

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jemila Macanovic

Applicant

-and-

Ontario Human Rights Commission

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: October 18, 2010

Citation: 2010 HRTO 2100

Indexed as : Macanovic v. Ontario Human Rights Commission

1This is an Application dated on June 30, 2009, pursuant to section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was dated May 29, 2007.

2The purpose of this Interim Decision is to address a Request for Order by the applicant dated August 11, 2010 requesting that I recuse myself as the adjudicator assigned to hear this matter on November 3, 2010.

3The applicant previously had filed a Request for Order dated July 28, 2010 requesting that I recuse myself on the basis that I previously had been the Director of Legal Services at the respondent Commission. This prior request was withdrawn after the applicant was informed that I had never been the Director of Legal Services at the Commission, and that she may have been confusing me with Hart Schwartz. The Tribunal did advise the applicant that I had been legal counsel at the Commission, which was during the period from 1989 to 1993. I have not worked at the Commission since that time.

4The applicant’s current request is that I recuse myself as a result of my statement in a Case Assessment Direction issued to the parties, in which I stated as follows:

I am aware that apart from the filing of her submissions, there have been a number of other communications by the applicant with various staff members of the Tribunal, including requests for Tribunal staff to respond to issues that are within the scope of the Requests for Order that are before the Tribunal for adjudication. The applicant is directed to restrict any communications with the Tribunal on issues that are within the scope of the Requests for Order to her reply submissions due on August 3, 2010 or to her oral submissions to be made at the hearing on November 3, 2010.

5The applicant alleges that this paragraph indicates that I have taken a “critical stance” regarding her enquiries of the Tribunal’s Registrar-Transition, that I am paying deference to the respondent, that I have ignored procedural fairness, and that I have disrespected the applicant. The applicant alleges that my actions give rise to a reasonable apprehension of bias, and accordingly requests that I recuse myself.

6There is no proper basis to support the applicant’s request. My direction to the applicant was made for the purpose of ensuring that there was an orderly filing of submissions by the parties in relation to the preliminary issues to be addressed at the November 3, 2010 preliminary hearing. When a party sends correspondence to the Tribunal that bears on issues that are in the process of adjudication separate and apart from submissions that have been invited by the Tribunal on such issues, it only serves to create confusion for the Tribunal and the parties.

7The applicant has had the opportunity to make written submissions in support of her request that the Tribunal not accept the Response filed by the respondent and that the respondent be deemed to have accepted all of the allegations raised in the Application. She also has had the opportunity to file written submissions in reply to the respondent’s submissions in response. The applicant also has had the opportunity to file submissions in response to the respondent’s request to dismiss the Application. The applicant shall be afforded a further opportunity to make oral submissions on these issues at the preliminary hearing on November 3, 2010. It is not appropriate for the applicant to send further correspondence to the Tribunal regarding these issues beyond the written submissions already provided.

8I am not being “critical” or “disrespectful” of the applicant; rather, I am trying to ensure that submissions are received and responded to in an orderly fashion. I do not understand how my comments can reasonably be regarded as “paying deference to the respondent” or as ignoring procedural fairness.

9Accordingly, the applicant’s request that I recuse myself from this matter is denied.

10Finally, the applicant has since written correspondence seeking my “permission” to file a complaint against the Tribunal’s Registrar-Transition and Executive Director. I do not have any authority to provide such “permission” nor do I have any involvement in the Tribunal’s complaint process regarding Tribunal staff members. However, the direction I provided in the earlier Case Assessment Direction remains in effect, and the applicant is to restrict any communications regarding the issues before me for adjudication to the written submissions she already has filed and to the oral submissions she is entitled to make at the preliminary hearing on November 3, 2010.