HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
A.M.
Complainant
-and-
The Michener Institute for Applied Health Sciences, Cathy Pearl, Elizabeth Mercuri, Michele Downie, Nancy McBride and Paul Gamble
Respondents
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: A.M. v. Michener Institute for Applied Health Sciences
APPEARANCES
A.M., Complainant ) Victor Opara, Counsel )
The Michener Institute for Applied )
Health Sciences,Cathy Pearl, Elizabeth )
Mercuri, Michele Downie, Nancy McBride ) Peigi Ross, Counsel
and Paul Gamble, Respondents )
1This Interim Decision provides reasons for two oral rulings made in the course of this proceeding: a ruling denying a Request that I recuse myself made on July 28, 2009; and a ruling that counsel for the complainant is not permitted to continue to appear as the complainant’s representative made on April 6, 2010.
BACKGROUND
2This is a complaint which was originally referred by the Ontario Human Rights Commission to the Tribunal on December 2, 2008.
3The background to the complaint is summarized in an earlier Interim Decision, 2010 HRTO 430, and is set out again below in part.
4The complaint arises out of the complainant’s attendance as a student at the Michener Institute (Institute) in the 2005-2006 academic year. The Institute is a post-secondary educational institution offering courses and programs in various health disciplines. The named individual respondents are either instructors or administrators at the Institute.
5During his time in the program, the complainant alleges that the respondents violated his right to be free from discrimination on the basis of disability or perceived disability, race, ethnic origin and creed. In addition, the complainant alleges that the respondents failed to accommodate him in respect of a tremor. The complainant further alleges that when he reported his concerns, the Institute failed to properly investigate and instead required that he undergo a psychiatric assessment. He alleges that the Institute refused to allow him to continue to attend school unless he received treatment for the mental disorder that was diagnosed (a diagnosis the complainant disputes).
6The respondents deny the allegations. The respondents state that the complainant’s concerns were taken seriously, reviewed and investigated. However, the allegations were not supported on the evidence and the Institute referred the complainant to counselors, who identified a possible mental health issue. As a result, the complainant was put on a leave of absence and referred for an assessment at the Centre for Addiction and Mental Health (“CAMH”). The respondents rely on the subsequent report of Dr. Klassen, the psychiatrist at CAMH, who diagnosed the complainant as having a mental disorder to support their decision to place the complainant on a medical leave of absence effective November 20, 2006.
7The hearing on the merits commenced on July 21, 2009 and has continued on a number of dates since then. The respondents are still presenting their evidence.
Request for Recusal
8The Request that I recuse myself was brought on the second day of the in-person hearing following my direction that the complainant should commence his case. In order to place the Request in context it is necessary to briefly describe what had transpired in the hearing including what matters were being addressed.
9On the first day of hearing the parties made opening statements and presented submissions on various preliminary issues, including the issue of whether the respondents would be permitted to rely on the proposed evidence of Dr. Klassen.
10The complainant objected to the respondents’ reliance on Dr. Klassen’s report on several grounds including that he had been a patient of CAMH at the time and that the respondents were therefore prevented from relying on the report because of section 35(9) of the Mental Health Act, R.S.O. 1990, c. M.7., as amended. Section 35(9) prohibits disclosure in a proceeding of any information about a patient obtained in the course of assessing or treating a patient except where the patient or his guardian consents (which was not present in this case) or where the Divisional Court determines that disclosure is essential in the interests of justice. I heard submissions on this issue and received further written submissions after the hearing.
11On July 28, 2009, I provided the following directions on the issue of Dr. Klassen (subsequently confirmed in writing August 12, 2009):
Subject to the applicability of section 35 of the Mental Health Act and any subsequent determination pursuant to that section, I do find that Dr. Klassen’s evidence would otherwise be relevant and admissible in this proceeding.
On the issue of the applicability of the Mental Health Act, I am not in a position to issue a ruling today.
There are a number of facts that are contested which may be relevant to my determination of whether s. 35(9) applies including whether there was consent to the assessment (in this regard, a signed consent has not been produced); the circumstances relating to the retention of Dr. Klassen (the applicant suggests the OHIP summary would support one interpretation; the respondents suggest another); and the details surrounding the complainant’s entire relationship with Dr. Klassen (both parties have implied that at one point, the complainant was treated at CAMH although no details have been provided as to timing and other facts that may be relevant).
On the issue of section 35 (11), neither party has provided any caselaw on this provision. Subject to my further consideration, however, I would say that it is not obviously apparent that it would be applicable to this situation.
Having regard to the fact that I am not able to issue a ruling today, and we have many days set over this week and during the week of August 10, 2009, there are several ways to proceed which I ask the parties to consider and provide me with their position on:
The parties could decide to go to Divisional Court without a ruling from the Tribunal. The Tribunal would proceed to hear other proposed evidence relating to the complaint, omitting the evidence concerning the assessment by Dr. Klassen, so hearing time would not be lost. While the respondents suggested last day that this may be prejudicial I am not convinced at this point that this would be the case and want further submissions from the parties on this issue.
The Tribunal could hear the evidence relevant to the section 35 issue and then issue a ruling. In this respect, I may ultimately decide that you need to go to the Divisional Court.
12I sought submissions from the parties. The respondents subsequently advised the complainant and the Tribunal that they were prepared to proceed to the Divisional Court without a ruling from the Tribunal. The complainant raised no objection to proceeding in this matter. I therefore determined that the hearing would proceed. My oral ruling was subsequently summarized in the Case Assessment Direction on August 12, 2009 as follows:
Having regard to the parties’ submissions,…it would be fair, just and expeditious to proceed with hearing the proposed evidence of the complainant omitting any proposed evidence concerning or in response to the contested evidence (as referenced in paragraphs 29, 32, 33, 34, 35 and 37 of the respondents’ Hearing Brief). The question of whether the respondents would be required to commence their case before the respondents obtained a ruling from the Divisional Court was initially deferred until such time as it became apparent that it was necessary to address the issue.
13After issuing the ruling, I asked the complainant to start his case. However, counsel indicated that his client was now not prepared to proceed unless the respondents were going to be required to proceed because otherwise it would be prejudicial as the respondents would have extra time to prepare their case. Counsel for the complainant stated that I had already ruled that the case commence for all parties (which was inaccurate) and continued to insist that he would not proceed. I stated that there would be a break. I suggested that counsel explains to his client my ruling and that he was required to proceed with his evidence. I cautioned that if a complainant refuses to present his or her case, one option is that the complaint may be dismissed.
14Following the break, counsel indicated that his instructions had now changed and that the complainant would proceed if the respondents would elect to not go to Divisional Court (and presumably not rely on Dr. Klassen’s report), but that otherwise, he would not proceed. Counsel also stated that he had concerns with the fairness of the Tribunal and was now raising an issue of bias or likelihood of bias.
15It is within this context that I proceeded to hear submissions on bias.
16Counsel argued that I was biased or there was a likelihood of bias because the complainant “felt” not protected by the Vice-chair and perceived that the respondent was in control of the hearing process. Counsel relied on a number of particulars in support of his position including my interjections in his opening to clarify his position, the limited time afforded to the complainant for reply submissions on the preliminary issues (in contrast to the time allocated to the respondents), and my acceptance of the respondents’ counsel’s representations on her availability and that of her proposed witness.
17The respondents elected to make no submissions in response to the complainant’s Request.
18The threshold test for a reasonable apprehension of bias is that set out by Grandpre J. in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (S.C.C.), [1978] 1 S.C.R. 369. The apprehension of bias must be both reasonable and serious, supra at p. 395. The test, at p. 394, is as follows:
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…[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.
19Applying this standard, I denied the Request that I recuse myself. The following are my reasons.
20In my view, I do not find that a reasonable, right minded and informed person, when viewing the particulars of conduct relied on would conclude that the complainant had a reasonable apprehension of bias. In terms of the particulars relied on, while the complainant has accurately described some events, others do not accord with my record of what transpired.
21First, the complainant relies on my questioning of counsel during his opening statement (the allegation being that I did not similarly question the respondents during their opening). I did ask counsel to explain how the Code had been violated with reference to the factual allegations in his hearing brief, so that I may understand the complainant’s position. I do not find that my approach in this regard can legitimately give rise to a reasonable apprehension of bias. Further, given the purpose of clarifying of a party’s submissions, there is no requirement that every party be treated in an identical manner; instead what is important is that the Tribunal understands each party’s position.
22The complainant also suggests that the respondents had all the time to make submissions but that he was restricted in his time for submissions on the preliminary issues. This is inaccurate. Both parties were permitted to make their main submissions with no time limit. However, when it came to reply, I asked the complainant if he could finish by 5:00 p.m. Initially counsel for the complainant stated that he could and he began making his reply submissions. When it became apparent that counsel did not have sufficient time, I provided the complainant with the opportunity to complete his reply submissions on the issue of the admissibility of Dr. Klassen’s evidence in writing after the hearing. I do not find that this approach gives rise to a reasonable apprehension of bias as the complainant had a full opportunity to reply to the issues.
23The complainant also refers to respondents’ counsel interrupting his submissions which he alleges I did not prevent, and which affected his “thought processes and emotions” but has provided no details of the same. In the absence of a specific example, I do not intend to address other than to note that near the end of the hearing day when the complainant was providing reply submissions, the respondents objected to the appropriateness of the reply submissions as they included reference to an extract from the Personal Health Information Protection Act (“PHIPA”); an extract that the complainant had not previously identified and which he did not have available for the Tribunal or opposing counsel. I addressed the issue by permitting the complainant to complete his submissions in writing as referred to above and to provide the respondents with a right to file written submissions in response to the PHIPA issue. I do not find that this handling of the dispute raises any reasonable apprehension of bias.
24The complainant also relies on my acceptance of counsel for the respondents’ representations as to her own schedule and that of Dr. Klassen (one of the respondents’ proposed witnesses). I did accept counsel’s representations, but do not find that this acceptance gives rise to a reasonable apprehension of bias. I note that I have afforded the same treatment to the complainant’s counsel on earlier occasions – my acceptance of counsel’s representation as to when he was well enough to proceed with the scheduling of the hearing is an example in this regard.
25The complainant also relies on my direction that I would defer ruling on the question of whether or not the respondents would be required to start their case without a ruling from the Divisional Court, which the complainant alleges is a procedural flaw. I do not find that this direction can reasonably be characterized as a procedural flaw supporting a reasonable apprehension of bias. At the time the submissions were made, there was no indication as to how long the complainant’s evidence would be and I did not find it necessary to address whether or not the respondents would be required to start their case in the absence of a ruling from the Divisional Court. I explained to the complainant that I did not need to hear from him then and would address if and when necessary to do so, including giving him an opportunity to make additional submissions. As it turned out, this issue became moot as the Divisional Court ruling was made on October 2, 2009 and the complainant’s case was not concluded until March 25, 2010.
26The complainant also suggests that “another concern” of the complainant is that I declined to rule on whether or not the respondents would be permitted to make another opening. Initially, the respondents requested that they defer any opening given the uncertainty of whether or not they could rely on Dr. Klassen’s proposed evidence. The complainant objected and I allowed the objection in part stating that if the respondents intended to make an opening statement they were required to do so at the commencement of the case. While I did indicate that if the respondents believed the scope of the case significantly changed by the time they were required to start their evidence, they could make a request for a further opening at the appropriate time, I do not find that permitting a party to make a request is indicative of bias or likelihood of bias.
27For all of these reasons, I denied the Request that I recuse myself.
Decision that Counsel be removed
28On April 6, 2010, I ruled orally that complainant’s counsel was not permitted to continue to appear as the complainant’s representative with reasons to follow. This decision was made after counsel continually refused to follow my directions and treat the Tribunal with courtesy and respect, although explicitly warned about the consequences of his conduct.
29In order to explain my reasons it is necessary to go into some detail about the history of the proceeding and complainant’s counsel’s conduct throughout the proceeding.
30At the time the ruling was made, it was the 14th day of the in-person hearing. The evidence of the complainant had commenced on the second day of hearing and had continued for another nine days (a tenth day was adjourned for reasons outlined below). The respondents had called their first witness and the complainant had almost completed the cross-examination of the witness.
31While the evidence to be covered in the hearing was extensive, the conduct of the complainant’s counsel also measurably contributed to the length of time the hearing was taking. The conduct of concern included counsel’s chronic lateness for the proceeding and his refusal to follow directions of the Tribunal, often manifested by counsel continuing to argue after a ruling was made and talking over me which I found could often only be addressed by a break to permit counsel to calm himself so that the hearing could resume.
32On October 14, 2009, the respondents requested that the Tribunal issue an order for contempt or alternatively an order for timeliness in attending the hearing as against counsel for the complainant. On February 23, 2010, I issued an oral decision declining the request to make a finding or order for contempt but providing explicit directions to counsel to the complainant to arrive on time and conduct himself with courtesy and respect (which were outlined in detail) with reasons to follow. Those reasons were released on the following day. In the Interim Decision dated February 24, 2010, 2010 HRTO 430, I stated that the Tribunal does not have the jurisdiction to make a finding and/or order of contempt. However, I went on to state that the Tribunal has other mechanisms for controlling a party’s or counsel’s conduct by virtue of section 25 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “SPPA”) which provides the Tribunal with the power to control its own processes and make such orders as are necessary to prevent an abuse of its process.
33At paragraphs 39-44 I outlined the specific concerns and confirmed the oral directions given on the preceding day:
In the circumstances of this case, I am seriously concerned about counsel’s conduct. While there will be occasions where a party/counsel is not able to arrive on time, I would expect that a party or counsel would only arrive late when there is a medical emergency or similar exceptional reason. In this hearing, it is notable that the complainant has been consistently on time and it is only counsel for the complainant who has been repeatedly late. Further, as mentioned by counsel himself, there have been many reasons for his lateness including traffic conditions, difficulties with his briefcase cart and photocopying. I do not find any of the reasons given to be exceptional such that they are legitimate excuses, particularly given the frequency with which the lateness has occurred.
As noted by the Tribunal prior to the request being brought by the respondents, such conduct is disrespectful to the Tribunal and impacts on the length of the hearing which is undoubtedly a concern to the parties, as well as to the Tribunal.
Further, and in addition, I have a concern with counsel’s response to the issue and his apparent refusal to abide by the Tribunal’s directions by continuing to argue when he was instructed to move on and continue with the calling of evidence. This conduct has not been atypical with counsel for the complainant during this hearing.
Having regard to the foregoing, I find it appropriate to provide explicit directions to counsel with respect to the continuation of this hearing.
The Tribunal directs the complainant’s counsel to the following:
a. Counsel shall arrive on time by 10:00 a.m. for every hearing date (unless the starting time is changed by the Tribunal) and arrive on time following every break in the hearing day, unless there is a legitimate reason such as a medical emergency, accident or other exceptional reason in which case counsel should make all reasonable efforts to advise the Tribunal of the same by telephone or other communication prior to the starting time for the hearing or the resumption of the hearing, as may be applicable.
b. Counsel shall conduct himself with courtesy and respect when addressing the Tribunal, including complying with any directions that the Tribunal may make.
In the event that counsel is late again and fails to contact the Tribunal and provide a legitimate reason for his lateness or otherwise fails to comply with these directions, the Tribunal may proceed with the hearing in the absence of counsel and/or receive submissions from the parties as to what other relief should be granted.
33While the Interim Decision did not summarize the particulars of counsel refusing to follow directions other than that referenced in paragraph 41, a sampling of the earlier incidents is provided below:
i. On July 29, 2009, while the complainant was giving evidence, the respondents objected to the introduction of a document. Notwithstanding that I overruled the objection, Mr. Opara continued to argue that I needed to hear further from him, that the respondent had interjected unnecessarily, and when I directed him to continue presenting the evidence, he refused to do so and continued arguing. Counsel was so agitated that I determined that it was necessary to have a break so that counsel could calm himself so that the hearing could continue.
ii. On the same date, Mr. Opara became irritated at his client, the complainant, interrupting him and stating initially that he was not going to ask him any more questions and then stating that he was not going to “represent” him anymore and that the complainant could call his own evidence if he wished. When I directed counsel to continue calling his evidence, he refused and I found it necessary to provide a break following which I went off record with the parties. Following the break, counsel continued to proceed calling the complainant’s evidence.
iii. On August 13, 2009, following an objection by respondent counsel to the relevance of questions being put to the complainant on the description of the physical layout of the Michener Institute, Mr. Opara became agitated, objecting in a very elevated voice, indicating to the respondents’ counsel that he decides what is “relevant”. I corrected Mr. Opara stating that the Tribunal determines relevance and asked if he had any submissions as to how it was relevant. When no explanation was provided, I directed Mr. Opara to move on, which resulted in Mr. Opara laughing. When the complainant resumed his evidence and continued giving evidence on the area I had overruled, I directed him not to and Mr. Opara began to argue the point again notwithstanding my ruling and the direction to the complainant. Mr. Opara then requested that the record reflect that I “stopped the witness from giving further evidence on venue”.
iv. On October 8, 2009, Mr. Opara refused to follow my ruling that he proceed with the remainder of the complainant’s evidence (for clarity the evidence that the complainant wished to rely on that related to Dr. Klassen). Originally, the complainant’s evidence had been bifurcated as set out in paragraph 12 above; however, as the complainant was still giving his evidence in chief when the Court’s decision was released permitting disclosure of Dr. Klassen’s report, I determined, after hearing submissions from the parties, that bifurcation was no longer appropriate.
Initially, Mr. Opara stated that he was unprepared having received the Tribunal’s letter telling the parties to be prepared to proceed on all issues around 5 p.m. the previous day and that it would be a denial of natural justice should he have to proceed with the remainder of the complainant’s evidence. I asked Mr. Opara if he needed time to prepare and proposed that the hearing could be set down for a period – for example 1.5 hours - but Mr. Opara began talking about another issue (his interest in calling other witnesses that he needed to “subpoena”) and when I redirected him to the issue he stated that he did not know how much time he would need. I asked counsel if he was seeking an adjournment, but he stated that he was not and that if he has to begin, he prefers to put his client on “unprepared”. I went off the record with counsel for both parties and when I went back on the record, the respondent asked for a break to get instructions. Following the break, counsel for the respondents expressed her clients’ concern with the integrity of the Tribunal’s proceeding and sought an adjournment for that reason. Mr. Opara objected stating that this would be “another waste of time” and reiterating that he “prefers to put [A.M.] [edited for anonymity] on without preparation”. I granted the request for the adjournment.
v. On October 8, 2009, while the hearing on evidence was adjourned, I proceeded to address other outstanding issues including Mr. Opara’s request to call additional witnesses (which had not been previously identified). Mr. Opara expressed that he wanted to stipulate statements orally for the record. I directed that witness statements should be filed in writing in accordance with the Tribunal’s Rules of Procedure. Mr. Opara did not accept this ruling and became loud and argumentative objecting to the requirement but eventually counsel proceeded to write out a “will say” statement in the hearing and hand it over to the respondents. The respondents objected to the proposed witness statement on the basis that the content did not meet the Tribunal’s requirements and on relevance. Mr. Opara disputed this. I directed that the parties were required to address any objection in writing and asked the parties for input on timing. Mr. Opara refused to provide any response on timing and when I then proceeded to impose a deadline for the parties, Mr. Opara interrupted speaking over me, stating that he now would not be preparing his client for the next week (when the hearing was scheduled to resume) and that his response would be filed on Monday (which was on a statutory holiday, albeit the day before the deadline specified in my direction). This resulted in the respondents asking that a contempt order be issued against the complainant’s counsel given his refusal to follow my directions and his talking over me. At this point, I noted the request for the record and directed that I wanted the parties to address the remaining outstanding issue of whether the proceeding should be anonymized.
vi. On February 23, 2010, I overruled an objection made by Mr. Opara to a question posed by respondent counsel as to whether or not the complainant intended to utilize certain documents during his cross-examination, which he had referenced. Notwithstanding my ruling, Mr. Opara continued arguing and when I stated the hearing should continue, he became very agitated and loud stating that he wanted to make further submissions on the issue and that he had the right to speak as counsel and if he cannot, he will “walk right out now”. At this point Mr. Opara was shouting. The complainant asked to consult with his counsel and Mr. Opara interjected that consultation was unnecessary. I had to speak over Mr. Opara to direct that the hearing would break in an effort to have Mr. Opara calm down. I reminded Mr. Opara that shouting is not complying with my direction to treat the Tribunal with courtesy and respect.
34Following the issuance of the Tribunal’s Interim Decision, there were further instances of complainant’s counsel being late for the proceeding and continuing to ignore my directions.
35On February 24, 2010, counsel had an angry outburst. The outburst occurred in the context of the cross-examination of the complainant. Counsel for the respondents was putting various documents to the complainant including some class schedules. Complainant’s counsel objected to the class schedules being put to the complainant on the basis that the complainant could not identify them. I allowed the objection and started to provide direction about the remaining documents but counsel began to talk over me in a very loud voice, stating “take it away, take it away” (referring to the class schedules).
36The respondents renewed their Request that I find counsel in contempt. Counsel began to shout that the respondents were in contempt because they had not taken away the class schedules. Given that counsel was shouting, I directed that he sits down, stop shouting and address the Tribunal in a respectful manner. Counsel did not comply and went on to speak at a very elevated level, stating that he was standing so he could be heard, I had not written down his request for contempt (which was inaccurate) and that I was applying a different standard to his conduct which was racially motivated. Given his refusal to follow my directions and to cease shouting, I stated that there would be a 10 minute break so that counsel could calm down.
37When I returned from the break, I directed that if the complainant was seeking a contempt order against the respondents or otherwise raising an issue with respect to the case, it should be done in writing. I noted that I had provided the same option to the complainant on February 23, 2010. I further provided that if the respondents were seeking a contempt order, the respondents should do the same. I indicated that I was not going to permit hearing time to be utilized for the purpose of hearing these requests at this time. I further indicated that written reasons to the original request brought by the respondents had been prepared and would be released shortly (referencing the Interim Decision summarized in above which was issued later that day). I suggested that the parties may wish to review those reasons prior to considering any requests that they wished to make.
38At this point the complainant himself indicated that he had a question and asked if there was any way the Tribunal could make the hearing move more quickly.
39On March 25, 2010, complainant’s counsel was late returning from a break. He indicated that he was detained. The delay was brief and I did not find it necessary to make any further direction about timeliness.
40On March 26, 2010, counsel again refused to follow my direction. During the complainant’s cross-examination, counsel asked on several occasions if I could repeat the evidence given by his client. After several requests, the respondents’ counsel objected. I overruled the objection. However, notwithstanding this ruling, counsel began to complain in a very agitated manner saying why is the respondents’ counsel being so picky and why is there no courtesy to him (directing the comments to counsel for the respondents directly). I interjected repeating that I had overruled the objection and the evidence should continue, but counsel continued to argue speaking over me about opposing counsel’s conduct.
41When he refused to cease arguing, I directed that there would be a 5 minute break. When the hearing resumed, I indicated to the respondents that if complainant’s counsel needed clarification, I would provide it and that if the requests were delaying the proceeding I would address the issue. I then explained to counsel that he may have been upset, but that he had refused again to follow my directions, which was unacceptable. I stated that if he continued to ignore my directions, I may be asking him why he should be permitted to continue appearing at the Tribunal on this matter.
42On April 6, 2010, complainant’s counsel was late for the hearing by approximately 15 minutes. He contacted the Registrar-Transition to advise of his delay. When he arrived, I asked counsel to explain the reason for his lateness and he responded that there was an “issue on the road”. When I reminded him of my earlier direction that he should be leaving early to ensure that he had sufficient time to arrive on time, he became irritated stating that he had “no control” over that.
43I then asked counsel to begin but he became angry stating in a very elevated voice that he needs to get ready and suggesting that I can see that his computer is not set up. I attempted to interject (as I had not observed that he was not set up) but was unable to do so as counsel began talking over me a very loud voice complaining about his perception of being treated unfairly and the unfair conduct of counsel for the respondents, who at this point had not said anything. As counsel continued arguing and would not cease, I stated that the hearing would break and when counsel was calm and ready to start, he should advise the Commissionaire at the reception desk. I left the hearing room and could hear complainant’s counsel shouting through the closed doors.
44After a break I returned to the hearing room and asked for counsel’s submissions as to why he should continue to appear as a representative of the complainant having regard to his conduct this morning which I stated, included his lateness coupled with his response and behaviour to me when I asked him to begin. I asked counsel if he wished a break in the hearing to consult with his client and prepare submissions, but he declined stating that he had no need to consult with his client.
45Complainant’s counsel stated that the Tribunal could take any action that it wished. He stated that the Tribunal is unfair and there have been racial and gender issues in “this Tribunal”. He acknowledged that he had been late but that he had adequately informed the Tribunal. He stated that he had noticed bias in the Tribunal and had asked me to recuse myself but I had declined. He further stated that the respondents had been successful in “all respects” and that he was ready to leave as he had “had enough”. He further stated that the Tribunal knew the consequences of having a new counsel retained at this point.
46I asked the respondents to address whether, if the Tribunal was inclined to rule that complainant’s counsel would no longer be permitted to appear during this hearing, they would oppose such a ruling. The respondents did not express opposition, but stated that the complainant would need to obtain appropriate representation and that an adjournment may be necessary.
47I suggested to the parties that I would reserve on the issue. Counsel objected complaining that it would be a “waste of time” to wait until 1:00 to receive the ruling.
48At 1:00 p.m. I issued the oral ruling. After the ruling, complainant’s counsel stated “Thank you to the Tribunal for wasting my one hour, 45 minutes”.
49As stated in paragraph 38 of the Tribunal’s earlier Interim Decision, the Tribunal has the power to control its own process in each particular case and to make such orders as are necessary to prevent an abuse of its process.
50In Romanchook v. Garda Ontario, 2009 HRTO 1077, the Tribunal reviewed the legal framework and some of the applicable case law at paragraphs 41-46 :
The Tribunal has the power to control its own process in each particular case. This is reflected in s. 25.0.1 of the SPPA, in ss. 39-43 of the Code, and in Rules 1.1, 1.5, 1.6 and 1.7 of the Tribunal’s Rules of Procedure. The Tribunal also has the power to make such orders as are necessary to prevent an abuse of its process: SPPA, s. 23(1).
The doctrine of abuse of process is flexible doctrine and engages the power of the Tribunal to prevent the misuse of its procedure in various ways. As stated by Goudge J.A. in Canam Enterprises Inc. v. Coles 2000 CanLII 8514 (ON C.A.), (2000), 51 O.R. (3d) 481 at para. 55 (C.A.), approved 2002 SCC 63, [2002] 3 S.C.R. 307:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a manner that would be manifestly be unfair or in some other way bring the administration of justice into disrepute.
See also Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 36.
In Universal Workers’ Union (Labourers’ International Union of North America, Local 183) v. Laborers’ International Union of North America 2004 CanLII 66334 (ON S.C.), (2004), 70 O.R. (3d) 435, the Superior Court concluded that the doctrine of abuse of process, together with statutory tribunals’ power to control their own proceedings, permitted, and indeed required the Labour Relations Board to exclude a lawyer or law firm in a conflict of interest regarding another party. Relying upon Wilder v. Ontario Securities Commission, (2000), 2000 CanLII 29062 (ON SCDC), 47 O.R. (3d) 361 (Div. Ct.), the Court held that this would not usurp the role of the Law Society of Upper Canada but was rather a legitimate and necessary part of the Board exercising control over its process.
The result of the Court’s decision in Universal Workers’ Union is that tribunals, like courts, have the power to control their process to ensure the integrity of the administration of justice and, in particular, the avoidance of conflicts of interest by licensees of the Law Society. Controlling the process to prevent conflicts of interest by licensed representatives is not merely a matter of protecting the interests of clients or litigants. It is also about ensuring the public’s confidence in the legal profession and the administration of justice: MacDonald Estate v. Martin, 1990 CanLII 32 (S.C.C.), [1990] 3 S.C.R. 1235 at para. 15.
51In Romanchook, supra, the Tribunal applied abuse of process together with the Tribunal’s power to control its own proceeding to disqualify a paralegal from acting as a representative for the applicant or as his litigation guardian in circumstances where the Tribunal concluded that the appearance of conflict of interest led to the conclusion that allowing him to continue as a representative would undermine the integrity of the administration of justice.
52In other contexts, the Tribunal has found the conduct of a party to be an abuse of the Tribunal’s process where that party repeatedly refuses to abide by the Tribunal’s directions and provide undertakings about appropriate language and conduct during the Tribunal’s proceedings. See Nourhaghighi v. Toronto Catholic District School Board, 2009 HRTO 2085.
53In the circumstances of this case, applying the same considerations, the Tribunal’s power to control its own process and its ability to make such orders as it considers proper to prevent abuse of its processes, I found it necessary to exclude counsel. Counsel’s conduct had become a significant impediment to the fair, just and expeditious resolution of the merits of the complaint. Indeed, counsel’s conduct was becoming the focus of the proceeding on many days of hearing as opposed to the serious issues raised by the complaint and response.
54In the circumstances before me, counsel was chronically late and repeatedly refused to follow my directions. In the 11 hearing dates before I sought submissions as to whether counsel could appear to continue, this conduct (either lateness, refusal to follow directions or both) occurred on every day except one, August 11, 2009. As is evident from the summary provided above, counsel’s refusals to comply were typically characterized by continuing to argue about issues that had been decided and speaking over me in an elevated voice, conduct which showed disrespect and obvious contempt for the Tribunal’s process. Further, the combined impact of late starts and continual breaks and/or the adjournment on October 8, 2009 had an obvious impact on the length of the hearing and the Tribunal’s process generally for reasons which were not justifiable.
55I determined that no further order made to counsel would be an appropriate response to the conduct that occurred on April 6, 2010. My earlier efforts to address similar conduct through various means - by way of oral reminders and directions to treat the Tribunal with courtesy and respect, by an Interim Decision making similar directions, and finally an explicit caution that if he continued to engage in such conduct, I would seek submissions from him as to why he should be permitted to continue to appear – had no impact on his conduct. I found it very troubling that, after the caution was given, counsel arrived late on the next hearing date for a reason which was not exceptional (and thus contrary to the Interim Decision), but more significantly, engaged in the disrespectful conduct described when asked to commence.
56I find that counsel’s conduct was manifestly unfair to the parties and the Tribunal for reasons which are self evident. While I did not hear from the complainant formally, I am mindful of his request on Feburary 24, 2010 whether there was anything I could do to have the hearing proceed more quickly.
57While counsel did not take issue with the Tribunal’s jurisdiction to make the order, apart from his submission to the effect that there would be an impact on his client, I did not find his submissions to be responsive to the question posed. Instead, he appeared more interested in making general allegations that he was being treated unfairly. Given the general nature of these allegations, I do not intend to respond other than to state that to the extent a party or representative disagrees with a ruling or the conduct of the process, there are appropriate mechanisms for addressing such concerns both within and outside of the hearing. Counsel’s conduct was not an appropriate mechanism and instead only served to obstruct the proceeding and prevent the Tribunal from fulfilling its mandate to adjudicate the complaint.
58I did appreciate that if I no longer permitted counsel to continue to appear on the complainant’s behalf in this hearing, it would obviously have an impact on his client, the complainant, since he would be required to seek alternative counsel and there may be other costs associated with such steps. While that is an unfortunate consequence of my decision, on balance, I found it necessary to take this action because the alternative appeared to be permitting counsel to continue to engage in the type of conduct described which ultimately was serving to undermine the administration of justice in the adjudication of the complaint.
Dated at Toronto, this 29th day of April, 2011.
“Signed by”
Kathleen Martin
Vice-chair