HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Keron James
Applicant
-and-
Workplace Safety and Insurance Board, Southrim Enterprises Inc., Frances Lord, Labourers’ International Union of North America, B & S Associates Professional Corporation, Marg Green, Cecile Carrol, Lorianne Ledwez and Kenneth Jeffrey
Respondents
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed As: James v. Workplace Safety and Insurance Board
WRITTEN SUBMISSIONS BY
Keron James, Applicant ) Krishna Badrinarayan, ) Representative
Southrim Enterprises Inc., ) Marg Green, Cecile Carrol, and ) Sharon Chilcott, Counsel Lorianne Ledwez, Respondents )
B & S Associates Professional Corporation ) Ramon Andal, Counsel and Kenneth Jeffrey, Respondents )
1This Application was filed on September 2, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The applicant alleges that she was discriminated against during a return-to-work meeting attended by her employer Southrim Enterprises Inc. and its representatives; the Workplace Safety and Insurance Board (“WSIB”); the Labourers’ International Union of North America; and the union representative, Kenneth Jeffrey of B & S Associates Professional Corporation.
2On October 25, 2011, the Tribunal, on its own initiative, directed that a summary hearing be held to determine whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that it will succeed. The respondents were advised that they did not need to file Responses to the Application unless directed to do so by the Tribunal.
3The summary hearing was scheduled for February 14, 2012, by way of teleconference. It was adjourned on that date because the applicant and the union had not been served with all of the materials filed. The Tribunal determined that because of the large number of parties involved in the summary hearing, it would be rescheduled to an in-person hearing.
4The scheduling of the summary hearing was delayed at the request of the applicant. This was the subject of an earlier interim decision, 2012 HRTO 539 (the “Interim Decision”). It is now scheduled to proceed on July 27, 2012.
5In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal clarified the issues on a summary hearing as follows:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
6On May 1, 2012, the Tribunal received a Request for Order During Proceedings dated May 1, 2012 (“Request for Order”) from the applicant requesting the following relief:
a. The removal, striking and sealing of Mr. Jeffrey’s notes of the return to work meeting, filed on the summary hearing, on the basis of solicitor client privilege;
b. The removal, striking and sealing of Sharon Chilcott’s correspondence dated February 16, 2012 on the basis of settlement privilege;
c. My recusal on the basis of bias;
d. A stay of the Application pending resolution of a Superior Court of Justice matter dealing with similar parties.
7Ms. Chilcott is counsel to the employer and the individual employer respondents. Mr. Andal is counsel to B & S Associates Professional Corporation (“B & S Associates”) and Mr. Jeffrey. Mr. Saich and Mr. Badrinarayan are the applicant’s representatives.
8The issue at the summary hearing is whether the Application has a reasonable prospect of success. The burden is on the applicant. She will be required to establish that the facts set out in her Application constitute a Code violation. The respondents’ evidence on the merits of the Application is not relevant to this issue. As stated above, the respondents, under the direction of the Tribunal, have not filed Responses to the Application.
Request for In-Person Hearing
9The applicant has requested that this Request for Order be heard in person. I do not believe it is necessary to do so. The parties have provided detailed submissions on the Request for Order and I am able to make my decision based on these submissions. It would not be an expeditious use of Tribunal resources to schedule an in-person hearing. It would delay the proceedings and likely result in an adjournment of the summary hearing scheduled for July 27, 2012.
Late Filing of Mr. Jeffrey’s Materials
10The applicant has objected to the late filing of the materials of B & S Associates and Mr. Jeffrey on this Request for Order. Their materials were due on May 15, 2012, and were filed on May 17, 2012.
11There is no prejudice to the applicant caused by the two-day delay in filing, for which Mr. Andal takes full responsibility. The Tribunal controls its own process and its rules can be liberally interpreted and applied under Rule 1.1 of its Rules of Procedure to ensure the fair, just and expeditious resolution of the matters before it. It would not be fair to exclude the materials of B & S Associates and Mr. Jeffrey because of the short delay in filing by their counsel.
Kenneth Jeffrey’s Notes
12As stated above, the issue on the summary hearing is whether the Application has a reasonable prospect of success. The notes of Mr. Jeffrey of the return-to-work meeting are not relevant to this issue because they go to the merits of the Application. Should the matter proceed to a hearing, the admissibility of the notes will be determined during the hearing process.
Ms. Chilcott’s letter of February 16, 2012
13In Ms. Chilcott’s letter of February 16, 2012, she advises the applicant’s representatives of her intention to seek an order removing the personal employer respondents from the Application when the hearing reconvenes. This issue arose during the teleconference on February 14, 2012.
14The issue on the summary hearing, as described above, is whether the Application has a reasonable prospect of success. The summary hearing will take place on July 27, 2012, and it is unlikely a decision will be rendered on that day.
15Until the summary hearing issue is determined, the request to remove the individual respondents is premature. If the Application is dismissed against the employer and the individual employer respondents or is dismissed in its entirety, the issue is moot. If the Application proceeds on its merits, Ms. Chilcott can file a Request for Order During Proceedings seeking the removal of the individually named employer respondents at that time.
16Because Ms. Chilcott’s correspondence is not relevant to the issue on the summary hearing, it will not be considered.
Recusal
17The applicant has requested that I recuse myself on the basis of apprehension of bias based on the following allegations:
a. I have reviewed Mr. Jeffrey’s notes of the return to work meeting;
b. My comment to Mr. Saich regarding his tone of voice during the teleconference on February 14, 2012;
c. My question of Mr. Saich as to whether he had received an e-mail from Mr. Andal;
d. The failure to provide the Interim Decision immediately following the teleconference on February 14, 2012;
e. I have provided legal advice to the respondents;
f. I have provided preferential treatment to the respondent lawyers;
g. I failed to allow the applicant to provide submissions on the Interim Decision regarding the rescheduling of the summary hearing;
h. There are misleading facts and statements in the Interim Decision;
i. My statement in the Interim Decision “whom she believes have been unnecessarily named in the Application”;
j. My lack of sensitivity to Mr. Saich in the Interim Decision;
k. My direction to the applicant’s representatives to the Tribunal’s Practice Direction on Recording Hearings while failing to provide a similar direction to the respondents’ counsel regarding service of documents;
l. My review of Ms. Chilcott’s letter of February 16, 2012;
m. That I have a “personal axe to grind” with the applicant’s representatives; and,
n. That I may have had ex parte communications with the respondents on or before April 18, 2012.
18The threshold test for reasonable apprehension of bias, as set out in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, is a high standard. The apprehension of bias must be both reasonable and serious. The test, at 394, is as follows:
[T]he 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.
19One of the bases for the recusal motion is the fact that I have seen the notes of Kenneth Jeffrey and the letter of Ms. Chilcott dated February 16, 2012. As indicated above, the issue on the summary hearing is whether the Application has a reasonable prospect of success. Mr. Jeffrey’s notes and Ms. Chilcott’s letter are not relevant to this issue and will not be considered. The fact that I have seen these documents does not give rise to a reasonable apprehension of bias. Adjudicators are frequently provided with copies of documents that are not entered into evidence. Decisions are made based on the evidence before the Tribunal and not on what is contained in the Tribunal file.
20The applicant relies on my remark to Mr. Saich during the teleconference on February 14, 2012, regarding his tone of voice towards other counsel, as a further ground for the recusal request. My comment to Mr. Saich arose in response to an allegation of impropriety made by him against Mr. Andal regarding the filing of his materials electronically. My interventions and requests to Mr. Saich to use a respectful tone of voice towards counsel were to ensure respect for the other parties and the Tribunal.
21An additional ground relied upon by the applicant relates to my questioning of Mr. Saich as to whether he had received the materials from Mr. Andal sent to him electronically. This question was asked of Mr. Saich because he was the person asserting that he had not received Mr. Andal’s materials via e-mail. There was no need to ask Mr. Andal this question.
22A further basis for the recusal request relates to the timing of the Interim Decision. The summary hearing was adjourned on February 14, 2012. The next step in the process was to schedule a new hearing date. There was no need for an interim decision on the matter of scheduling alone. The Interim Decision arose because of the subsequent request by the applicant’s representatives to reschedule the summary hearing sometime between July and December 2012. The Tribunal obtained submissions from the respondents on the request to delay the rescheduling of the hearing. The Interim Decision was released on the applicant’s delay request on March 15, 2012.
23The applicant asserts further that I provided legal advice to counsel for the employer respondent and held ex parte communications with the other parties. There is no basis for these assertions. They are simply untrue.
24The applicant alleges that I have given preferential treatment to the respondent lawyers. This claim is not born out on the facts. The applicant requested an adjournment of the summary hearing on February 14, 2012, because she was not in receipt of all of the materials. The request was granted. The applicant requested a delay in rescheduling the summary hearing. The request was granted. There is no basis for the assertion that the applicant was not given the opportunity to make submissions on the scheduling request nor is there any basis for the allegation of preferential treatment. The applicant’s submissions were considered and the delay in scheduling was granted.
25The applicant asserts a lack of sensitivity on my part in describing Mr. Saich’s physical restrictions in the Interim Decision. These restrictions were set out in correspondence from Mr. Badrinarayan and provided the basis for granting the delay in the rescheduling of the summary hearing.
26The applicant alleges I have prejudged the issues and relies on the statement “...whom she believes have been unnecessarily named in the Application” in the Interim Decision. This statement refers to the individually-named employer respondents. The “she” refers to Ms. Chilcott and her notice on the teleconference that she intended to seek their removal. “She” does not refer to the Tribunal.
27The applicant complains that I directed her representatives on the practice direction on recorded hearings. This direction was made in response to their request that I provide a transcript of the teleconference on February 14, 2012. The applicant complains that I did not similarly direct the respondents’ counsel to the Rules of Procedure on Service. No direction was necessary because I ruled in the Interim Decision that further service could be done electronically, with no consent required from the parties.
28Finally, the applicant complains about two statements in the Interim Decision which she believes are inaccurate. One statement concerns the applicant failing to consent to the electronic filing by Mr. Andal and the second statement involves Mr. Badrinarayan advising the Tribunal for the first time that Mr. Saich would be representing the applicant at the summary hearing.
29I disagree that either of these statements are inaccurate, although I do agree with the applicant that during the teleconference her representative also advised that he did not receive Mr. Andal’s materials. Although this was omitted in my decision, it does not give rise to an apprehension of bias. With respect to the second statement, both Mr. Saich and Mr. Badrinarayan were on the teleconference on February 14, 2012. At no time did Mr. Saich advise the Tribunal that he would be representing the applicant at the summary hearing. I would note that the summary hearing materials were filed by Mr. Badrinarayan, not Mr. Saich.
30As the Vice-chair presiding, I am responsible for directing the proceedings before me. The steps that I have taken to date have all been made in this regard.There is no basis for a reasonable apprehension of bias and the request that I recuse myself is denied.
Stay of Proceedings
31The applicant requests that the summary hearing be stayed pending a resolution of a Superior Court of Justice matter with similar parties.
32The Superior Court matter involves a personal injury claim against the employer. It does not involve allegations of discrimination. In paragraph 23 of the statement of claim the applicant states:
The Plaintiff respectfully advances that she is not making claim in the herein proceedings to any and all events, treatment and or discriminatory conduct that transpired during and prior to the return to work meeting.
33Similarly, the applicant makes it clear in paragraph 32 of the Application that the accident giving rise to the civil action is not part of the Application.
34On June 13, 2012, the applicant provided correspondence relating to the civil action from the employer’s legal counsel indicating that their statement of defence would be provided without prejudice to any motion that may be brought to stay or dismiss the action because it forms part of the Application before the Tribunal.
35The Tribunal does not have any involvement in the civil action and the motions that may be brought. It is clear from the statement of claim and the Application that the personal injury claim has nothing to do with allegations of discrimination. For this reason, there is no basis upon which to stay the summary hearing
ORDER
36The summary hearing will proceed on July 27, 2012.
Dated at Toronto, this 20th day of June, 2012.
“Signed by”
Jennifer Scott
Vice-chair