Latronico v. York Region District School Board, 2010 HRTO 2497

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vincenzo Latronico Applicant

-and-

York Region District School Board, Isagani Paz, David Lutz, and Dan Hunter Respondents

AND B E T W E E N:

Vincenzo Latronico Applicant

-and-

Canadian Union of Public Employees, Local 1196 Respondent

interim decision

Adjudicator: Judith Hinchman Date: December 15, 2010 Citation: 2010 HRTO 2497 Indexed as: Latronico v. York Region District School Board

APPEARANCES

Vincent Latronico, Applicant ) Self-represented

York Region District School Board, ) Andrew Zabrovsky, Isagani Paz, David Lutz, and Dan Hunter, ) Counsel Respondents )

Canadian Union of Public Employees, Local 1196, ) Elizabeth Nurse, Respondent ) Counsel

1The hearing of these Applications began before me on July 21, 2010. A Case Management Conference was conducted on October 6, 2010, the hearing continued on October 20 and 21, and December 6, 2010.

2On the afternoon of Friday December 3, 2010 the applicant emailed the Tribunal alleging an apprehension of bias and requesting that I recuse myself from hearing these Applications. The applicant did not send this request to the respondents, but indicated that he would bring hard copies of his request to the December 6 hearing. The Tribunal forwarded the email to the respondents.

3I heard the parties’ oral submissions on the Request on December 6, 2010. After considering these submissions, I dismissed the applicant’s Request. This Interim Decision provides my reasons for that decision.

BACKGROUND

4As background to my decision it is important to note that these Applications were subject to considerable pre-hearing case management by the Tribunal before I commenced the hearing. The Alternate Chair issued four Interim Decisions two of which, 2009 HRTO 1803 and 2010 HRTO 1000 (the “Interim Decisions”), addressed the scope of the Applications, identified those allegations which were not properly the subject matter of the original complaints to the Human Rights Commission, removed personal respondents, declined to add respondents, and rejected the majority of the applicant’s numerous production requests.

5Prior to the first day of hearing I had not realized that I previously briefly met counsel for the respondent York Region and his family in August 2004 while moving my son into his dormitory at university. Counsel’s sister was also a student at that university. Although counsel and my son both attended the same high school in Toronto I do not know if they attended at the same time and this was my first meeting with counsel and his family. I had not seen or spoken to him again before the hearing and have only seen his sister and his mother on a few occasions although I did accept his mother’s friend request on FaceBook.

6I have never had occasion to cross paths with counsel for the respondent CUPE.

THE APPLICANT’S POSITION

7In his December 3 email, the applicant set out his position as follows:

I am requesting I be given the right to examine and discuss all my evidence before the Tribunal during the Hearing without being constantly interrupted and side tracked by the Adjudicator and the defence. Jumping all over the place in order to confuse me. I am not a lawyer and I have a method of providing my evidence and since I am suffer for Psychological post traumatic stress disorder I can’t think properly because of the injuries that the respondents have inflicted upon me. I have gathered solid evidence that prove that the following people have covered up and discriminated against me. Isagani Paz, Laird Underwood, Jack Botts, Jeff Hartung, Brad McPeak, Mr. McBean, Rene Bissonette, Debbie Carson, Mary Cromwell, Peter Waterson, Dan Morgan, Mr. Atkinson, Dan Hunter, David Lutz, Peter Karaoulis, Greg Smith, Rosemary McCarth, Nancy Massie, Jude Carberry etc. If I spend only one hour on each person that’s 19 hours. I have concrete proof.

8The applicant bases his Request on “facts and evidence” which he submits demonstrate that:

Adjudicator Tribunal Member Hinchman and her Family are known friends and possibly related with the Respondents to my Human Rights Compliant – Respondent York Region District School Board Legal Representative from Hicks Morley Mr. Andrew Zabrovsky’s family.

9The applicant explained that during the first three hearing days, he observed body language that suggested something “fishy” was going on between the respondents and me. Other examples that the applicant asserts are that “he was never shown any respect and Mr. Zabrovsky had all the respect,” that it was evident on the first hearing day that I “was rushing the matter through as fast as possible,” and that he kept “complaining that [he] didn’t have legal representation [yet] was never guided.”

10He also asserts that Mr. Zabrovsky and, to a very small degree Ms. Nurse, had the run of the whole hearing, and he could not follow what was going on as it was over his head. He also complains that I did not provide written reasons concerning a Request for Order that he claims he made concerning the release of “vital” emails and reports to him on June 15, 2010 written by Mr. Hartung, Mr. McPeak, Mr. Underwood and Mr. Souvran. He states that the fact that these disclosures were not produced to him until that date proves a cover-up by the respondents that I have failed to address with written reasons.

11Finally the applicant alleges that during cross examination by Mr. Zabrovsky, when the applicant stated “this is not fair being question[ed] 2 or 3 times on the same question after I answered the question” that Mr. Zabrovsky responded that he did not have to be fair.

12The applicant determined that the hearing was a sham and so began an Internet search of me and Mr. Zabrovsky. From this he discovered the names of my husband and children. He also learned my son attended the same Toronto high school as Mr. Zabrovsky and that my son and both Mr. Zabrovsky and his sister attended the same university. He then researched our respective FaceBook pages. From this the applicant concludes that Mr. Zabrovsky and I are friends and have many mutual friends although he admits that he does not know the true nature of the relationship between my family and Mr. Zabrovsky’s family.

13The applicant asserts that I intentionally failed to declare a conflict of interest in violation of the Tribunal Code of Professional and Ethical Responsibilities. Had he known that Mr. Zabrovsky and I knew each other, he would not have “agreed” to the adjudicator assignment.

14The applicant argues that reasonable apprehension of bias must be measured from his subjective point of view. He believes that beginning with his experiences with the respondents and then with the Ontario Human Rights Commission, he has been blocked by everyone from pursuing his rights. Thus when this hearing began he had already developed an apprehension. This new information was the straw that broke the camel’s back.

RESPONDENT YORK REGION’S POSITION

15York Region’s position is that it is common in the legal community to know another lawyer. However, the test for bias is an objective one of what a reasonable informed bystander would conclude, the threshold is high, and the onus is on the applicant to show bias. York Region does not feel that the applicant has met that burden of proof.

16Mr. Zabrovsky did not recall meeting me in 2004.

17The respondent York Region further argues that it appears the applicant’s motivation is that he wants another adjudicator to bend the rules regarding the scope of the case beyond that defined in the earlier Interim Decisions issued by Alternate Chair Joachim.

18With respect to the conduct of the hearing thus far, the respondent York Region asserts that the applicant was permitted to testify for six hours on the first hearing day, was treated with respect by the Tribunal, and was given the opportunity to explain and testify about all his allegations that are properly within the scope of the Applications.

RESPONDENT CUPE’S POSITION

19Respondent CUPE submitted that it had no knowledge of the information that the applicant has gathered and that it does not believe the circumstances rise to the level of reasonable apprehension of bias.

ANALYSIS: REQUEST FOR RECUSAL

The Test For Reasonable Apprehension of Bias

20The issue to be determined is whether the applicant has demonstrated that there is a reasonable apprehension of bias such that I should not continue to hear and decide these Applications. The test for bias is well established.

…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.”

Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, per de Grandpre at p.394.

21Thus the approach is not whether the applicant, given his history, has a reasonable apprehension of bias, but whether a reasonable and well-informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude a reasonable apprehension of bias exists. See also Henry v. Beasley’s Bake Shop, 2003 HRTO 15 where the Board of Inquiry rejected the suggestion that a reasonable person’s perception is that of a reasonable complainant.

22It is also important to note that there is a presumption of impartiality and the onus is on the person seeking disqualification to establish a reasonable apprehension of bias.

Is there a Reasonable Apprehension of Bias?

The “Apparent Relationship” with York Region Counsel and his Relatives

23The circumstances of this case are that I barely know the respondent’s counsel, having met him briefly once in 2004. The fact that he, his sister, and my children attended some of the same schools are hardly circumstances that otherwise elevate my relationship with counsel to a close personal or professional relationship. In my view a reasonably informed person would not conclude in these circumstances that counsel and I had any sort of relationship at all.

24Furthermore, the casual acquaintance that I had with counsel’s mother based on the fact my son and his sister attended the same university in the same class and have a FaceBook connection, does not create a relationship with counsel which a reasonably informed person would conclude raises an apprehension of bias.

25The Tribunal Code of Professional and Ethical Responsibilities (“Code of Responsibilities”) for its members, states:

15. 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.

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

26I clearly did not have a significant, or any, professional relationship with either counsel and so in my view the year-long cooling off period was not applicable and the latter section was not triggered. Neither, in my view, did I have a relationship with either of the counsel that would cause a reasonable person to believe that my impartiality might be affected and thus I did not feel that section 15 triggered any duty for me to disclose the August 2004 introduction or the casual acquaintance with counsel’s sister and mother.

My Conduct During the Hearing

27It is clear from the applicant’s submissions that even before he decided to research any connection between me and York Region’s counsel, he determined that I was not impartial. He bases this view on his perceptions of my conduct towards him during my adjudication of these Applications.

28At the first day of hearing the applicant testified for approximately six hours. From time to time when he attempted to testify regarding allegations that Alternate Chair Joachim had ruled were outside the scope of his Applications, I sustained objections from respondents’ counsel. And from time to time I asked the applicant if he understood these limitations and he indicated that he did. We reviewed the 97-page witness statement that the applicant had filed, and discussed which portions related to the scope of his Applications. The applicant was permitted to testify regarding all of the allegations in his Applications. Contrary to the applicant’s characterization that we “jumped around,” I asked that he present his evidence chronologically.

29The respondents objected to many of the documents that the applicant had filed and, after considering submissions from the parties, I ruled on those objections. Where I found the documents were relevant they were admitted as evidence and marked as exhibits.

30At the conclusion of the first day of hearing, I discussed with the parties the order of the proceeding for the next hearing date. Based on this discussion, the Tribunal’s impression was that the applicant had concluded his testimony and that the continued hearing would commence with the respondents’ cross examination. By letter following the hearing, however, without particularity the applicant stated that he had not been able to provide all his evidence in his 97-page witness statement.

31The applicant was directed to identify the evidence he felt he had not been able to provide. He then filed a 74-page statement reiterating most of his original allegations, many that were outside the scope of the Applications, but not specifically identifying evidence that he felt he had not been able to present. After requesting and receiving further submissions from the parties, I issued a Case Assessment Direction stating that much of the applicant’s submissions in his 74-page statement and in his original 97-page witness statement dealt with matters that Alternate Chair Joachim had already ruled did not fall within the scope of the Applications, and that in my view the applicant had provided testimony on all of the material contained in his statement that deals with the proper scope of the Applications as previously defined. Nonetheless I stated:

In fairness to the applicant who is self represented, however, at the outset of the next day of hearing the applicant may if he wishes adopt all portions of this [97-page] witness statement that pertain to matters within the scope of the Applications as previously ruled. … Following that the respondents will begin cross-examination of the applicant on his evidence.

32In order to deal with several more communications from the parties to the Tribunal, I conducted a Case Management Conference call to discuss how the respondent York Region might assist the applicant in locating certain witnesses he wished to call to give evidence and to deal with other case management concerns. That call was memorialized in a second Case Assessment Direction.

33The hearing continued on October 20 and 21. During the respondent York Region’s cross-examination of the applicant, the applicant on several occasions asked for my assistance stating that he was unrepresented. In particular the applicant objected to answering some of respondent York Region’s questions that he believed he had already answered. Quite frequently the applicant would make a lengthy statement reasserting his allegations rather than answering a relevant question.

34I responded indicating that part of my duty to ensure a fair hearing was to ensure that witnesses and parties are treated with respect and that includes not permitting repetitive cross-examination. I did not permit counsel to repeat questions already answered. Where I did not think the applicant had answered a question I directed him to do so. In addition, on several occasions I requested that counsel reframe the questions to be clearer and to ask only one question at a time, rather than posing compound questions. On several occasions, I instructed the applicant that he could ask for clarification if he did not understand a question or alternatively in response to a yes or no question, if he did not recall he could say so as his answer.

35With respect to the interactions between the applicant and the respondents during the applicant’s direct evidence and his cross examination, on several occasions I interjected to ask that the parties be civil and that the Tribunal process be respected.

36As noted in Henry, supra at para. 136, “the conduct of a judicial or quasi-judicial officer [may] give rise to an allegation of a closed mind through expressions on the matters at issue which explicitly or implicitly favoured one side or the other..”, however similar to that case where the concerns focused on a limited number of interventions over the course of a “hotly contested emotional hearing with an unrepresented party,” my directions to the parties regarding decorum and the conduct of the parties during cross-examination does not support that I was favouring one side or the other. Similarly in Smith, supra at para. 5, the Tribunal states: “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.”

37The applicant has not described the body language that he found inappropriate.

38In his submissions the applicant has once again identified many persons whom he claims have discriminated against him and whom he wishes to examine and submit evidence about. Moreover he has reiterated a broad set of allegations that far exceed the proper scope of these Applications.

39In my view looking at the whole of the applicant’s submissions, he takes issue with Alternate Chair Joachim’s Interim Decisions on scope and parties and complains that he has been not allowed to expand the scope of the Applications. The applicant asserts, in essence, that by not reopening the issues already decided by Alternate Chair Joachim, I have not demonstrated impartiality.

40A reasonable and informed person would not conclude that my decision to limit the evidence of the applicant to issues properly within the scope of these Applications as defined by Alternate Chair Joachim gives rise to a reasonable apprehension that I am biased in favour of the respondents.

41There is nothing in these proceedings that demonstrates I acted in a way that is arbitrary, or denied the applicant procedural fairness, as he alleges. Directions to the parties regarding decorum; following rulings made in previous Interim Decisions; and limiting the evidence and the submissions of the parties to those issues properly within the scope of the Applications are not actions that raise a reasonable apprehension of bias.

42A reasonable and informed person would not conclude that my conduct of the hearing to date gives rise to a reasonable apprehension that I am biased in favour of the respondent York Region.

43For all these reasons, I decline to recuse myself.

ACCOMMODATION OF CODE-RELATED NEEDS DURING A PROCEEDING

44The applicant states that he suffers from psychological post-traumatic stress disorder and thus has a required method of giving his evidence and can’t think properly during the proceedings. The Tribunal’s Policy on Accommodation and Accessibility is available on the website and describes how a request for accommodation of Code-related needs may be made to the Registrar-Transition.