Hermilyn Morris v. Ontario (Finance), 2010 HRTO 2327

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hermilyn Morris

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Finance and Dianne Lone

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: November 23, 2010

Citation: 2010 HRTO 2327

Indexed as: Morris v. Ontario (Finance)

APPEARANCES BY

Hermilyn Morris, Applicant ) Glen Morrison, Representative

Ministry of Finance and Dianne Lone, ) Susan Munn, Counsel

Respondents )

ii

1This is an Application filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleged discrimination in employment on the grounds of age. The Application was scheduled to be heard on November 22, 2010.

2At the outset of the hearing, Mr. Morrison asked me to recuse myself from hearing the Application on the basis that there is a reasonable apprehension of bias. The respondents opposed the recusal request.

3Mr. Morrison advised that there were two reasons for the recusal request. The first concerns a prior unrelated decision of the Tribunal, and a request for reconsideration of that decision. The second concerns the fact that the corporate respondent in this case is the Crown in Right of Ontario, as represented by the Ministry of Finance.

The Prior Decisions

4The decision referred to by Mr. Morrison is Williams v. Hudson’s Bay Company/Zellers, 2009 HRTO 2168. In that case, the applicant alleged discrimination in employment on the grounds of pregnancy and disability. Mr. Morrison represented the applicant and I heard the Application. The Application was allowed.

5Mr. Morrison subsequently filed a reconsideration request on behalf of the applicant in that case. The basis for the reconsideration request was that the amount awarded for injury to dignity, feelings and self-respect was not appropriate and should have been higher. The request for reconsideration was denied. See Williams v. Hudson’s Bay Company/Zellers, 2010 HRTO 452. That Decision noted that the basis for the damages awarded was discussed in the original Decision where it was noted that the applicant had adduced only minimal evidence regarding her injury to dignity, feelings and self-respect, despite the fact that her representative was invited to adduce such evidence.

6Mr. Morrison was asked to explain how the Decisions of the Tribunal in Williams were relevant to the present Application and how they resulted in a reasonable apprehension of bias. Mr. Morrison advised that the reason was that in both cases, the applicant is a Black woman. Mr. Morrison was asked if there was any further reason why the Decisions in Williams raise an apprehension of bias. He did not provide any further reason. He agreed that apart from the fact that he represented both applicants, there was no other commonality between the two Applications, except that in both cases, the corporate respondent is a large organization.

The Nature of the Respondent

7The second reason for the recusal request was that the Ministry of Finance, representing the organizational respondent in this case, is a “powerful Ministry” within the government of Ontario with responsibility for the financial affairs of the Province. Mr. Morrison alleges that this includes control of my salary as an employee of the Tribunal. He alleges this creates a reasonable apprehension of bias.

8Mr. Morrison was asked if this was not a generic concern that would apply equally to all members and Vice-chairs of the Tribunal and why it raises a reasonable apprehension of bias in the context of this Application. Mr. Morrison replied that it would not apply equally to all members and Vice-chairs and suggested that it would apply only to me. However, he was unable to explain why this was so.

9The respondents opposed the recusal request. Counsel for the respondents noted that the respondents had come prepared to address the Application and that the basis for the recusal request on the grounds of the prior case was not very clear. Counsel noted that there was no explanation for why the concern about the nature of the organizational respondent would not apply equally to all members and Vice-chairs and also why this concern was only raised at the outset of the hearing.

Dismissal of the Recusal Request

10After a brief recess, I provided a brief oral ruling, refusing the recusal request with reasons to be provided as part of the final Decision on the merits of the Application. Mr. Morrison asked that the hearing be adjourned so that written reasons on the recusal request could be provided before the Application was heard on its merits.

11After a brief recess, I denied the adjournment request. However, in reply to the request for further reasons for denying the recusal request, I indicated that the test for whether a reasonable apprehension of bias exists is high and referred to the decision of the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369. In that case, De Grandpré J. said:

. . . 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.”

12I stated that in this case, based on Mr. Morrison’s submissions concerning the Tribunal’s decision in Williams, I was unable to see how an informed person, viewing the matter realistically and practically could conclude that I, whether consciously or unconsciously, would not decide the Application now before me fairly.

13In regards to the allegation that the nature of the respondents results in a reasonable apprehension of bias, I stated that there is no reason why this alleged apprehension of bias would apply only to me and that in any event, no basis for the allegation has been disclosed, other than the fact that the organizational respondent is the government of Ontario.

14For these reasons, the recusal request was denied at the hearing, and that denial is confirmed in these written reasons.

The Applicant’s Adjournment Request

15After the recusal request was denied, the applicant and Mr. Morrison advised they were leaving. I cautioned the applicant that this might cause the Tribunal to conclude that she had abandoned her Application.

16Mr. Morrison then advised that he was no longer representing the applicant. His reason for this was that the Law Society of Upper Canada had required him to take an oath as part of the paralegal licensing process and that he has sworn to represent all clients to the best of his ability. He indicated that he felt that he could not do this in this case since the recusal request had been denied.

17The applicant then asked for an adjournment to allow her to obtain a new representative. The respondents objected to the adjournment request. After a brief recess, I granted the adjournment. I noted that the circumstances in this case were quite exceptional but that the result was that the applicant was no longer represented and wished to be represented.

Request to amend the Application

18Concurrent with the recusal request, Mr. Morrison indicated that the applicant wished to amend the Application and to add Race, Colour, and Place of Origin as grounds of discrimination. This request was not dealt with at the hearing, because of Mr. Morrison’s reaction to the denial of the recusal request.

Decision

19The applicant’s request that I recuse myself from hearing the Application is denied.

20The applicant’s request for an adjournment on the grounds that Mr. Morrison refused to continue to represent her is granted. The Tribunal will schedule another hearing date.

21If the applicant wishes to amend the Application, she must file a written request with the Tribunal and provide a copy to the respondent. Information about how to make such a request is available from the Tribunal’s website, www.hrto.ca, or from the Tribunal Registrar.