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
-and-
David Baker
Intervenor
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Mitchinson v. Niagara Child and Youth Services
WRITTEN SUBMISSIONS
Elisabeth Mitchinson, Applicant
Self-represented
Niagara Child and Youth Services (now known as Pathstone Mental Health)
Leslie A. Brown, Counsel
David Baker, Intervenor
Louis Sokolov, Counsel
1This is an Application filed under section of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging a breach of settlement. This Interim Decision deals with a number of new issues raised by the parties.
Background
2The procedural history of this Application is somewhat complex and is set out in part below. In this Application the applicant alleged a breach of settlement of a prior Application (Tribunal File #2010-07633-I) before the Tribunal, pursuant to 45.9(3) of the Code. At the hearing of the prior Application in April 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 counsel in trust. The parties executed and file a Form 25 advising the Tribunal that the case had settled and jointly requesting that the Tribunal finally dispose of the Application and close its file.
3A dispute apparently arose between the applicant and her counsel, Mr. David Baker, who she dismissed the day following the execution of the MOS. Consequent to this dispute a further issue arose with respect to the implementation of the MOS. Contrary to its strict terms, the applicant requested that the settlement funds be sent directly to her. As I understand it Mr. Baker has apparently proposed that the applicant and the respondent agree to an amendment of the MOS to allow the funds to be payable directly to the applicant. The respondent has to date refused to agree to the suggested amendment of the MOS.
4The applicant 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 Summary Hearing. Subsequent to this Interim Decision the applicant filed a Request to Withdraw this Application but at the same time sought an Order from the Tribunal setting aside the MOS. In her Request to Withdraw the applicant appeared to acknowledge that there was little merit to her allegation of a breach of settlement but it remained unclear what it was she was actually seeking.
5In response to a subsequent Case Assessment Direction seeking clarification of the applicant’s position, it became clear that the applicant was seeking an Order setting aside the MOS and re-opening the prior Application. The applicant alleges that this is appropriate having regard to what she alleges was serious misconduct by Mr. Baker as well as the respondent and their counsel. It may be therefore that the Breach of Settlement Application and the subsequent Request to Withdraw are moot.
6In her Request to Withdraw the applicant also alleged that I and every other member of the Tribunal were biased and could not adjudicate these issues because her former counsel, Mr. Baker, is a member of the Tribunal’s Practice Advisory Committee. Consequent to the allegation of bias the applicant also sought an Order from the Tribunal appointing a “disinterested person”. pursuant to section 16 of the Public Officer’s Act, R.S.O, 1990 c. P.45. In 2012 HRTO 1446 I dismissed the applicant’s claim of bias. I also concluded that the Tribunal had no authority to appoint a “disinterested person” pursuant to section 16 of the Public Officer’s Act, R.S.O, 1990 c. P.45.
7A number of issues have arisen subsequent to the events described above. The applicant evidently disagrees with my conclusions in 2012 HRTO 1446. In correspondence dated August 8, 2012 the applicant requested a second decision of the Tribunal on her bias allegation from the Associate Chair David A. Wright. Although not framed precisely in this way and not using the correct Form, it appears that the applicant is seeking the Reconsideration of the Interim Decision pursuant to section 45.7 of the Code. The applicant has also commenced a civil proceeding related to the issues arising out of this Application and has requested the deferral of this Application pending the conclusion of that matter. As well the applicant’s former solicitor has filed a Request to Intervene which has not yet been addressed. This Interim Decision deals with these latter issues.
The Reconsideration Issue
8I note at the outset that reconsideration is only available for final decisions of the Tribunal. Rule 26.1 of the Tribunal’s Rules of Procedure provides that a party may request reconsideration of a final decision of the Tribunal. A decision will only be considered a final decision where the decision has the effect of finally determining the substance of the dispute or a central element of the dispute between the parties. See for example Ontario Human Rights Commission v. Ontario Teachers’ Federation, 1994 CanLII 10578 (ON CTGD), 19 O.R. (3d) 371.
9In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal considered at length the question of when a decision should be considered final for the purposes of the reconsideration power. After carefully considering the policy issues and the relevant authorities the Tribunal concluded:
As a general principle, having regard to the approach taken in other forums as well as the above discussion, it is reasonable to view a “final decision” as one that disposes of some or all of the central issues in the complaint as between the parties. This general principle will take on a more precise shape as the Tribunal applies it to cases before it.
10In my view the Interim Decision was not a final decision and cannot be reconsidered at this stage and for that reason I would dismiss the request.
11I also find that the applicant’s submissions do not address any of the factors that must be considered on a reconsideration request. The applicant evidently disagrees with my legal conclusions and vigorously re-argues her position on the bias point, however, it is not a proper basis for a reconsideration request.
12For these reasons the request for reconsideration is denied.
13The applicant did make further submissions taking issue with a number of conclusions on the law and procedural rulings but all flowing from her central allegation that I and every other Member of the Tribunal is biased because Mr. Baker is a member of the Tribunal’s Practice Advisory Committee. In short, the applicant contends that the only explanation for the conclusions reached on a number of issues was because of this alleged relationship I and the Tribunal have with Mr. Baker. I dealt with the applicant’s argument on the effect of Mr. Baker’s membership in the Practice Advisory Committee in the Interim Decision and accordingly it would be inappropriate for the reasons set out above to deal with it again.
Request to intervene
14Mr. Baker has delivered and filed a Request to Intervene. Mr. Baker states that the applicant has made serious allegations about his behaviour and conduct when he was her counsel to which he wishes to respond. Mr. Baker is interested in the issues because they call into question his professional reputation. Mr. Baker also states that the findings of the Tribunal made in relation to his alleged conduct, may have implications for subsequent civil or regulatory proceedings concerning his retainer by the applicant. Mr. Baker states that although he does not have an interest in the ultimate resolution of this Application, he does have an interest in his reputation not being sullied by what he states are specious allegations. The applicant did not oppose the Request to intervene but in prior correspondence indicated that if the Tribunal directed that he be added as a party to this proceeding he should be required to set out his position on the issues well in advance of the summary hearing.
15I find that Mr. Baker is entitled to intervene in this case with full party rights, as his alleged misconduct is central to the applicant’s case. He is entitled to file full submissions setting out his position on the applicant’s allegations, and in particular the allegations against him, for all of the reasons set out above. The other parties are directed to ensure that all correspondence, including delivery of any documents related to this matter, are also delivered to Mr. Baker.
16Mr. Baker is directed to file any responding submissions to the issues raised by the applicant within 21 days of the date of this Interim Decision. In particular, he may provide his position on the applicant’s request that, as a result of alleged misconduct by himself and/or the respondent and its counsel, the MOS should be set aside and Tribunal file 2010-07633-I be re-opened. The intervenor should also address my authority, if any, to grant this kind of remedy.
Request to Defer
17As indicated above the applicant has commenced a civil proceeding and sought the deferral of this Application pending its conclusion. The respondent opposes the request. Mr. Baker has not responded to the request although given an opportunity to do so.
18The applicant submits that the Application should be deferred because it has not yet been determined whether or not the Tribunal has jurisdiction to set aside the MOS. The applicant also states that because the MOS was agreed to outside of the Tribunal’s mediation process it would be more expeditious and proper for the civil proceeding to determine the issues and defer the matter before the Tribunal.
19The respondent disagrees. The respondent submits that the Application should not be deferred. The respondent states that the civil proceeding was not properly commenced by the applicant. The respondent submits that they have taken the position with the applicant and before the Court that it was not properly commenced by way of a Notice of Application under Rule 14.05 of the Rules of Civil Procedure, for amongst other reasons, there are significant material facts in dispute. The respondent states that it would not be appropriate to defer the Application which is currently before the Tribunal and scheduled for hearing on October 29, 2012 because of the doubt surrounding the validity and viability of the Notice of Application.
20The respondent also submits that it would not be appropriate to defer this Application having regard to its status and the steps that have been taken to date in the Tribunal process. The respondent states that considerable energy and expense have been incurred by the parties in moving this Application to the stage it is now at while the other matter has just been commenced. In this regard the respondent advises that the court date scheduled for September 6, 2012 was adjourned at the request of the court until September 20, 2012. The respondent further advises that it is the position of the respondent that the Notice of Application will not be heard on September 20, 2012 because it cannot be appropriately dealt with in Motion Court as it will require more than 2 hours to deal with. In the respondent’s submission the Notice of Application will only be heard when the court is able to hear “long matters”. On the other hand the respondent submits that this Application has been fully engaged by the parties with submissions having been made on a number of the issues to address at the summary hearing.
21The respondent also states that it would be unfair to defer the Application. It is the respondent’s position that to defer the Application will require the parties to in effect start over and re-litigate issues that have already been addressed by the Tribunal. In this regard the respondent relies on the fact that the Tribunal has removed a personal respondent from the prior Application in 2012 HRTO 728 as well as the identification of an affected party, Mr. Baker. The respondent states that the applicant has named the same individual respondent as was removed above as a respondent in the Notice of Application. As regards Mr. Baker, the respondent states that although the applicant has raised similar allegations against Mr. Baker in the court proceeding, she has not named him or to their knowledge given him notice of the Notice of Application. The respondent states that both of these issues will have to be dealt with anew in the other proceeding which may result in conflicting decisions.
22There is no dispute that some of issues raised in the Court proceeding are the same or substantially the same as those raised in the Application. As indicated above, formally at least, this is a breach of settlement Application however the applicant is seeking to withdraw that allegation and instead is seeking to set aside the MOS and have her prior application re-opened. The issues in the court proceeding are considerably broader than that. In her Notice of Application the applicant seeks the following relief:
a. A determination of her rights under the MOS.
b. An Order to the respondents to issue all payments under the MOS directly to her;
c. In the alternative to the Order contemplated in paragraph 25(b) above, an order to set aside the MOS and restore the parties to their pre-contractual position after a determination of the applicant’s allegations that she signed the MOS under duress, caused by the misconduct of her counsel as well as counsel for the respondent.
d. Pending the resolution of the issues above, leave of the court to commence a civil proceeding alleging wrongful dismissal and discrimination on the ground of disability.
23I am not prepared to grant a deferral of the Application at this stage. I note that the applicant filed this Application first and the Notice of Application is at an early stage as well as the fact that the respondent has raised issues that may prevent that litigation from proceeding expeditiously. On the other hand if that matter proceeds, there is a concern that the issues raised by the applicant in the court proceeding appear to be broader than the issues which have been raised here. I am also concerned that the applicant may be seeking to commence a civil suit alleging wrongful dismissal and discrimination on the basis of disability which may raise other procedural issues in this proceeding.
24I note the respondent’s advice that there is another date in the court proceeding prior to the date set for the summary hearing in this case which may clarify things to some degree. The parties may speak to the deferral issue at the summary hearing.
Other Matters
25The applicant is self-represented. The Tribunal acknowledges this and has allowed the applicant considerable latitude in the manner in which she has proceeded with this Application. For example the applicant has often provided post decision submissions in response to several of the decisions released in this case to date. The Tribunal does not normally entertain post decision submissions except in the form of a Request for Reconsideration. In addition the applicant has also not always made her requests using the appropriate Tribunal Forms. As a consequence of what have been at times serial submissions on the same issue or related issues and the applicant’s shifting position on the central dispute, these lapses in compliance with the normal Rules have not been helpful to the efficient adjudication of this case.
26Accordingly the Tribunal directs that the applicant comply with the Tribunal’s Rules and procedures from here on in. If the applicant wishes to make a request (other than in relation to routine administrative matters) she will do so using the appropriate Tribunal Form. In addition the Tribunal will no longer entertain post decision submissions unless made in the form of a Request for Reconsideration, with the caution that reconsideration is only available for a final decision.
27As a result of administrative oversight the Tribunal has accepted a small number of documents and or correspondence that were filed by the applicant but not copied to the intervenor, contrary to the Tribunal’s Directions. These materials will be sent by the Tribunal to the intervenor with this Interim Decision.
ORDERS and Directions
28The Tribunal makes the following Orders and Directions in this matter:
a. The request for reconsideration is denied at this stage;
b. The Request to intervene is granted. The parties are directed to deliver all materials produced in this case to the intervenor. The intervenor is directed to deliver and file his submissions on the issues raised in this matter as set out above in paragraph 15 within 21 days of the date of this Decision;
c. The applicant is directed to comply with the Tribunal’s Rules with respect to requests in the course of this proceeding using the established Forms;
29I am not seized of this case.
Dated at Toronto, this 19th day of September, 2012.
”signed by”
David Muir
Vice-chair