HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elisabeth Mitchinson
Applicant
-and-
Niagara Child and Youth Services (now known as Pathstone Mental Health)
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Mitchinson v. Niagara Child and Youth Services
WRITTEN SUBMISSIONS
Elisabeth Mitchinson, Applicant
Self-represented
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging a breach of settlement by the respondent. This Interim Decision deals with an issue arising out of a Request by the Applicant to withdraw this Application.
Background
2The applicant filed an Application with the Tribunal alleging a violation of the Code in respect of her employment with the respondent. At the hearing of that Application on April 17, 2012, the parties entered into settlement discussions which resulted in Minutes of Settlement (MOS) which included, amongst other terms, the payment of a global sum to the applicant allocated between legal fees and general damages. The MOS provided, as they often do, that the settlement funds would be payable to the applicant’s solicitor in trust.
3The applicant alleges that a dispute arose between the applicant and her solicitor about the amount that should be allocated to his legal fees. The applicant dismissed her solicitor the day after the MOS were signed. The applicant then sought to have the respondent pay the funds contemplated by the settlement directly to her rather than through her counsel. The respondent has refused to do so, despite the applicant’s former counsel proposing to the parties that the MOS be amended to allow this to occur.
4The applicant filed this breach of settlement Application on May 14, 2012. The applicant then filed a Request for Interim Remedy which was denied in 2012 HRTO 1243. In the same Interim Decision I granted the respondent’s Request for a Summary Hearing.
5Subsequent to the release of 2012 HRTO 1243 the applicant filed a Request to Withdraw the breach of settlement Application but at the same time appeared to be seeking an Order setting aside the MOS. At that time the applicant also alleged that I and the entire Tribunal were biased and could not adjudicate these issues on the basis that her former counsel is a member of the Tribunal’s Practice Advisory Committee. Consequent to her allegation of bias the applicant also sought an Order from the Tribunal appointing a “disinterested person” pursuant to section 16 of the Public Officers Act, R.S.O. 1990 c. P.45 (the “Act”).
6In order to clarify the applicant’s position on these issues I issued a Case Assessment Direction (CAD) on July 6, 2012. On July 9, 2012 the applicant responded clarifying these issues as follows:
a. The applicant wishes to withdraw this Application (Breach of Settlement);
b. The applicant does seek to have the MOS set aside on a number of bases, including duress, unconscionability and other allegations of misconduct by her former solicitor, counsel for the respondent and the respondent. The applicant also seeks an order to re-open Tribunal File # 2010-07663-I and that it be scheduled for a hearing;
c. I and the entire Tribunal are biased and cannot adjudicate these issues because her former counsel is a member of the Tribunal’s Practice Advisory Committee;
d. In order to have these issues adjudicated the applicant seeks an Order of the Tribunal appointing a “disinterested person” pursuant to section 16 of the Public Officer’s Act, supra;
e. The applicant also states that the issues raised in paragraphs (c) and (d) above must be dealt with first and expeditiously so that the applicant is not prevented from filing “applications in civil court”.
7This Interim Decision deals with the applicant’s claim that there is a reasonable apprehension that I and the entire Tribunal are biased and cannot adjudicate the other issues. It also addresses the issue of the authority of the Tribunal to make the requested appointment under the Act.
Analysis and findings
Bias or Reasonable Apprehension of bias
8As indicated above the sole basis for the bias claim is that her former counsel, David Baker, is a member of the Tribunal’s Practice Advisory Committee.
9In my CAD of July 6, 2012 I directed that the respondent need not respond to any of the issues raised until directed to do so by the Tribunal. I did not consider it necessary to receive their submissions on the points to be addressed here and have not requested a response from the respondent.
10The applicant’s claim that there is a reasonable apprehension that I and every member of the Tribunal are biased and as such cannot adjudicate her claims is dismissed.
11It is a fundamental requirement of procedural fairness that an adjudicator be free of any reasonable apprehension of bias. The legal principles to be considered are well established and are captured in this often cited passage from Committee for Justice and Liberty v. National Energy Board, [1976] 1. S.C.R. 369 at p. 394:
… 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 more likely than not that [the decision maker] whether consciously or unconsciously, would not decide fairly.
12The applicant claims that the reason I concluded that the allegations of improper conduct on the part of her former solicitor and the respondent and their counsel had no bearing on the breach of settlement issues was because I have an undeclared conflict of interest contrary to the Tribunal’s Code of Professional and Ethical Responsibilities. The applicant states that because her former solicitor, David Baker, is a current member of the HRTO Practice Advisory Committee I as well as the Chair and all other Vice-chairs have a “close relationship” with him.
13The applicant alleges that my decision departs significantly from established jurisprudence on requests for interim remedies in that I relied on the submissions of the respondent but ignored hers. The applicant also claims that she has provided sufficient evidence to establish misconduct on the part of her former solicitor as well as the respondent and their counsel. The applicant argues that the only reason I could have concluded that these allegations of misconduct were not relevant to the breach of settlement issue is because of a “close relationship” I have with her former solicitor because he is a member of the Tribunal’s Practice Advisory Committee. Although framed as a reasonable apprehension of bias the applicant appears to be claiming an actual bias on my part. However, given my conclusions on this issue there is no need to discuss the legal distinctions and I will deal with this on the basis of the less onerous standard (for the applicant) for a reasonable apprehension of bias.
14The applicant states that the Practice Advisory Committee functions as a resource to the Tribunal, providing consultation and feedback concerning Tribunal policies, Rules and Practice Directions. Given this focus, the applicant states, it is obvious that her former solicitor’s allegedly unconscionable conduct was not conducive to his role as a member of the Committee and “would reflect poorly on the integrity of the Tribunal.”
15The applicant evidently disagrees with the conclusions reached in 2012 HRTO 1243. Having reviewed her submissions on this point, I am not satisfied that the Interim Decision departs from established jurisprudence in any way, much less, in a way that could give rise to a reasonable apprehension of bias. For example, the applicant claims that counsel “duped” her into executing a Form 25 that is out-dated and substantially different from the one currently in use by the Tribunal. The Form 25 executed by the parties in this case is not substantially different from the one currently in use, so it is not clear what the basis for the applicant’s concern is on this point. The applicant’s most substantial concern in this regard is that I accepted the assertions of the respondent as fact and did not acknowledge her statutory declarations. This is not an accurate characterization of the Interim Decision. It is clear from a reading of the Interim Decision that I reviewed the applicant’s submissions and her statutory declarations. It is evident that the applicant disagrees with my conclusions; however, her disagreement with my conclusions or how I weighed the evidence before me is insufficient in the absence of anything else to establish a reasonable apprehension of bias. Finally, there is the applicant’s concern that I concluded that the claims of misconduct were not relevant to the allegation of a breach of settlement. Again the applicant is entitled to disagree but given that the issue raised by the Application was whether or not there was a breach of settlement it was not at all clear how allegations of misconduct of her former solicitor, the respondent and their counsel could be relevant to whether or not there was a breach of the MOS that the applicant still sought the benefit of. The allegations made by the applicant may be relevant to a claim that the MOS should be set aside and that her original Application proceed to a hearing, however that was not the issue at the time. Moreover, as noted above, the applicant’s disagreement with respect to a conclusion on legal relevancy is insufficient in and of itself to give rise to a reasonable apprehension of bias.
16The broader question raised by the applicant’s allegations is whether I or any Member at the Tribunal can adjudicate the issues she has raised because of what she claims is a reasonable apprehension of bias because her former solicitor is a member of the Tribunal’s Practice Advisory Committee.
17I do not agree. Although this is not a fact that the applicant could have been aware of, I did not know that her former solicitor was a member of the Tribunal’s Practice Advisory Committee and have never met him. This of course does not deal with the broader issue raised by the applicant, that each member of the Tribunal is similarly situated and some of them may know this individual and be aware of his membership on the Practice Advisory Committee. The real question is whether or not the fact that her former solicitor is a member of the Practice Advisory Committee requires the conclusion that there is a reasonable apprehension that each member of the Tribunal is therefore biased and unable to fairly adjudicate the issues raised by the applicant.
18The bias claim of the applicant is not a novel one and has been adjudicated by the Tribunal. In at Guilmoutdinov v. Ontario College of Teachers, 2009 HRTO 2130 at para. 14:
The applicants also suggest that a reasonable apprehension of bias arises because one of the co-chairs of the Tribunal’s practice advisory committee is a lawyer at Hicks Morley. The mandate of the Practice Advisory Committee (whose Terms of Reference are also posted on the Tribunal’s website www.hrto.ca) is to function as a resource to the Tribunal for consultation and feedback from those in the community it serves regarding its policies, practices, rules, practice directions and services. It is specifically designed to have representation from the perspectives of different persons who regularly appear or represent parties before the Tribunal. One of the co-chairs represents the perspective of applicants and the other represents the perspective of respondents. Its membership is specifically balanced among individuals who represent each of these perspectives. This type of committee is frequently used by tribunals to promote responsiveness to the communities they serve. Its membership does not create a reasonable apprehension of bias in the Tribunal.
19I agree with the conclusions of the Tribunal above and adopt them. The applicant’s claim that I and every member of the Tribunal is unable to adjudicate her remaining claims in this matter because of a reasonable apprehension of bias is dismissed.
Appointment of a “disinterested person”
20Having concluded that there is no reasonable apprehension of bias in these circumstances there is no need to consider the applicant’s request that there be an Order pursuant to section 16 of the Act, but would observe that the Act is clear that while a determination that there is no one at the Tribunal who can adjudicate the matter is a pre-condition, the appointment of a “disinterested person” under the Act is made by a judge of the Superior Court. See Jogendra v. Human Rights Tribunal of Ontario 2011 ONSC 3307 and section 16 of the Act. In my view it is clear that the Tribunal has no jurisdiction to make an order under section 16 of the Act.
Outstanding Issues
21A number of outstanding issues remain to be adjudicated. The applicant’s Request to withdraw this Application has not been determined. The respondent has not taken a position on the issues as of yet and should be given an opportunity to do so. The respondent’s Request for a Summary Hearing in this Application has been scheduled to be heard on October 29, 2012. However depending on the respondent’s position on the applicant’s Request to Withdraw, a summary hearing on that issue may not be necessary. This status of the breach of settlement Application should be resolved prior to a hearing on the other issues raised by the parties. The new issue raised by the Applicant, that the MOS be set aside also remains outstanding. I also note that the applicant’s former solicitor whose conduct has been put in issue by the applicant has been copied on the materials filed by the applicant to date. In the circumstances it is appropriate that, until further directions are made, that he be copied on all correspondence related to this case.
22The Tribunal makes the following directions:
All materials filed by the parties will also be delivered to the applicant’s former solicitor. The applicant is also directed to give Notice to David Baker of the hearing scheduled to take place on October 29, 2012. A copy of this Interim Decision will be provided to David Baker by the Tribunal;
The respondent will deliver and file their submissions in response to the Applicant’s Request to Withdraw the breach of settlement Application within 21 days of the date of this Interim Decision;
The applicant will deliver and file any responding submissions within 14 days of receiving the respondent’s submissions;
Within 21 days of the date of this Interim Decision the applicant will deliver and file her submissions on the authority of the Tribunal to set aside the MOS;
The respondent will deliver and file their responding submissions on the Tribunal’s authority to set aside the MOS within 14 days of receiving the applicant’s submissions;
At the half day hearing the parties will make oral submissions on the following issues:
a. In the event that the Request to withdraw is not granted prior to the hearing, whether there is any reasonable prospect that it can succeed;
b. The applicant’s request that the MOS be set aside and that Tribunal File 2010-07663-I proceed to a hearing;
c. The respondent’s requests for Direction to the applicant as follows:
i. That the applicant comply with the terms of the MOS;
ii. That the applicant (and her spouse) cease and desist any and all disturbing coercive, abusive, discriminatory and threatening e-mail communications with the respondent;
iii. Direct the applicant (and her spouse) to maintain confidentiality of the MOS.
23I am not seized of this case.
Dated at Toronto, this 24th day of July, 2012.
Signed by
David Muir
Vice-chair