Bruce v. Ontario Secondary School Teachers’ Federation, District 9, 2010 HRTO 2509

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Bruce

Applicant

-and-

Ontario Secondary School Teachers’ Federation, District 9, Sandra Sahli, Pat Pajot and Geoff Delaplanque

Respondents

AND B E T W E E N:

Kenneth Bruce

Applicant

-and-

Greater Essex County District School Board, Mary Gallagher, Heather Liffiton, Bob Garrett, Diane Beck and Dawn Garvey

Respondents

Reconsideration Decision

Adjudicator: David Muir

Date: December 17, 2010

Citation: 2010 HRTO 2509

Indexed as: Bruce v. Ontario Secondary School Teachers’ Federation, District 9

WRITTEN SUBMISSIONS

Kenneth Bruce, Applicant ) Graham E. Smith, Representative

OntarioSecondarySchoolTeachers’ ) Simon Blackstone,Counsel Federation,District 9, Sandra Sahli, ) Pat Pajot and Geoff ) Delaplanque, Respondents )

Greater Essex County District ) Suzanne M. Porter, Counsel School Board, Mary Gallagher, Heather ) Liffiton, Bob Garrett, ) and Diane Beck, Respondents )

Dawn Garvey, Respondent ) Ian Werker, Counsel

Reasons for Decision

1These are two Applications filed pursuant to section 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”). In Decision 2010 HRTO 261, the Tribunal dismissed the Applications on the basis that the human rights complaint underlying them was filed four years after the last incident complained of and were therefore out of time without a reasonable excuse pursuant to section 34 of the Code.

2The applicant has filed a Request for Reconsideration of the Decision under section 45.7.

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

3The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a decision in accordance with Rule 25.5.

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; or

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; or

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.

4The applicant relies on each of the factors set out above.

5For the most part the applicant’s positions were without merit. However, the applicant also stated that he was denied natural justice by the Tribunal’s decision to proceed with the Case Resolution Conference ( CRC or hearing) despite the applicant’s request for an adjournment on the basis that his representative was unable to attend having sudenly taken ill.

6The parties’ submissions were requested on the natural justice point raised by the applicant. The parties’ submissions have been received.

7Althought there was considerable dispute raised by the parties concerning what was said at the hearing about the timing and reasons for the representative’s absence the decision of the Tribunal contains the following:

At the beginning of the hearing, the applicant requested an adjournment on the grounds that his representative, a friend, had taken ill the day before. After hearing all the parties, I ruled that the hearing should proceed. The applicant had not had any representation listed in the file in the past. As well, counsel for two of the parties had traveled to Windsor from Toronto and to adjourn the proceedings and start again on another date, requiring them to return to Windsor would cause prejudice that outweighed any prejudice to the applicant. The hearing proceeded as scheduled.

8As indicated in the Case Assessment Direction requesting the parties’ submissions on the natural justice point, the Tribunal’s determination may have been predicated in part on an error. While it is correct that there was no formal advice to the Tribunal or the other parties that the applicant was represented, it is correct as stated by the applicant that there are written submissions in the Tribunal’s file which are signed by a Mr. Smith and submitted on behalf of the applicant. These submissions were all delivered to the other parties. It is not clear how, despite the failure of the applicant or Mr. Smith to comply with the obligation to properly advise the parties and the Tribunal of his status as representative, how the respondents would have been unaware that Mr. Smith purported to be representing the applicant in this proceeding. If Mr. Smith’s role in this proceeding was an issue for any of the respondents there was ample opportunity to seek clarification from the applicant at any point after Mr. Smith appeared to become involved.

9The point is made, not unfairly, that even knowing that the Mr. Smith had made written submissions on behalf of the applicant the respondents would not necessarily have known that Mr. Smith was intending to attend the hearing. It is not unusual for parties to have some assistance in advance of the hearing but then appear as self-represented parties at the hearing. However this fact seems to me be neither here nor there in the circumstances. There is no basis for concluding, the inference the submission requires, that Mr. Smith was not intending to attend and that his absence and consequent adjourment request were a sham intended only to further delay this proceeding.

10The respondent OSSTF states that had the respondents known that the applicant was represented by someone who appears to not be licensed to provide legal services to the public by the Law Society of Upper Canada (LSUC) it would have been possible for the respondents to challenge his status. It is further submitted that Mr. Smith might have been directed by the Tribunal to confirm his ability to represent the applicant in this proceeding as it did in Avila v. Riverdale Cooperative Houses, 2009 HRTO 1236. This submission misses the mark as well. As indicated above it should have been clear that Mr. Smith was purporting to be providing representation to the applicant for a time before the hearing at issue. If any of the respondents had been concerned about his right/ability to provide legal services to the applicant they could have raised it prior to the hearing. No one did so for whatever reason.

11It is notable howver that the applicant although clearly prompted to do so has not responded to this issue. In this regard the OSSTF has requested that Mr. Smith clarify his status and a Direction in that respect will be made below. The applicant may wish to consult with the LSUC, however if as appears to be the case. The Tribunal’s Policy on Representation Before the HRTO, available on its website, reads as follows:

A party or witness before the Human Rights Tribunal of Ontario (HRTO) may be self-represented or represented by a lawyer or paralegal licensed by the Law Society of Upper Canada (LSUC).

A party or witness may be represented by an unlicensed person if that person falls within a category the LSUC has exempted from its licensing requirements. The current exemptions permit an unpaid friend or family member, an employee or volunteer from a trade union, and students, volunteers and employees of Legal Aid clinics, among others, to act as a representative. The LSUC’s website contains a complete list of the approved exemptions.

A person who is not licensed, whose license is suspended or who is not in a exempted category will not be permitted to act as a representative in an HRTO proceeding.

A licensed representative must provide her/his LSUC license number to the HRTO. The HRTO may ask an unlicensed representative to identify the LSUC category to which he or she belongs.

12The respondent school board states that, even if there was a denial of natural justice, the applicant’s position on the delay question was doomed to fail and the result inevitable. From the perspective of the respondents that may be the case and given the signficant delays that appear to be at play here the applicant may have an uphill battle to persuade the Tribunal that the Application ought to be allowed to proceed. However, I am not persuaded that it follows from the difficulty facing the applicant that the denial of his right to be represented at the hearing can be overlooked.

13In addition to Rule 25.5 referred to above, the Tribunal has issued a Practice Direction on Reconsideration to provide guidance on the Tribunal’s exercise of its reconsideration powers. The Tribunal’s Practice Direction on Reconsideration states, in part, as follows:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

14I find that there has been a denial of natural justice in these circumstances and that the public interest in ensuring that the parties are afforded natural justice outweights the other important public interest in the finality of Tribunal decision making.

15In this case it should have been apparent to all of the respondents that Mr. Smith was purporting to represent the applicant in some capacity. Although there are disputes about what information was before the Member when she made her determination it does appear that Mr. Smith was in fact unable to attend as a result of a medical emergency of some kind although this may not have been entirely clear at the hearing. It also appears that the circumstances were such that it is possible that the applicant was not aware of the problem until the morning of the hearing at which point it was too late to inform the Tribunal or the other parties.

16In my view the applicant’s request for an adjournment of the CRC was reasonable and would fall within the category of exceptional circumstances contemplated by the Tribunal’s Practice Direction on Scheduling of Hearings and Mediation, Recheduling Requests and Requests for Adjournments. The refusal to grant the adjournment prevented the applicant’s representative from attending the CRC and representing him in the proceeding. In the result the responding parties were present with their counsel, some of whom had travelled from Toronto to Windsor.This is unfortunate but in all of the circumstances it is difficult to equate the prejudice to the respondents with that of the applicant in being required to proceed with the hearing without his representative.

17Having carefully considered the parties’ submissions and being mindful of the extraordinary delay in this matter which can not but have had an impact on all of the parties, both the individual respondents as well as the applicant, I find that in the specific factual circumstances of this case it is the more fair and just result that the Decision be reconsidered, set aside and a new hearing be convened as soon as possible to deal with the preliminary issues rasied by the respondents.

18The parties have all filed written submissions on the delay issues. The Tribunal will convene a three hour conference call to hear the applicant’s oral submissions, and the respondents’ if necessary, on the delay issues raised by the respondents. The Tribunal is available to hear the parties’ on the following dates:

January 13 or 14, 2011

February 8, 9 or 10, 2011

March 7, 9 or 10, 2011

The parties will confirm their availibility on one of the above dates or or before December 29, 2010.

19The Tribunal also makes the following Direction:

Mr. Smith is directed to confirm, in writing to the Tribunal with copies to the respondents, whether he is a licensed member of the LSUC and, if not, within which category of unlicensed persons permitted to appear as a representative in legal proceedings he belongs. He shall do so within seven days of the date of this Interim Decision.