HUMAN RIGHTS TRIBUNAL OF ONTARIO
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B E T W E E N:
Akalework Sebhatu
Applicant
-and-
Starwood Canada Corp. o/a The Westin Harbour Castle
Respondent
-and-
United Food and Commercial Workers, Local 333
Intervenor
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DECISION
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Adjudicator: Douglas Sanderson
Date: February 15, 2012
Citation: 2012 HRTO 329
Indexed as: Sebhatu v. Starwood Canada Corp. o/a The Westin Harbour Castle
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APPEARANCES:
Akalework Sebhatu, Applicant ) Aliamisse Mundulai, Counsel
Starwood Canada Corp. ) o/a The Westin Harbour Castle, ) Respondent ) Donna D’Andrea, Counsel
United Food and Commercial Workers, ) Local 333, Intervenor ) Lori Kent, Counsel
1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment because of race, ethnic origin, reprisal and contravention of settlement.
BACKGROUND
2The applicant works as a casual banquet server for the respondent and has held this position for several years. In or about the summer of 2010, the applicant applied for a permanent part time banquet server position. By letter dated July 15, 2010, the respondent informed the applicant that she was unsuccessful and the position was awarded to another candidate. The applicant, who describes herself as black, African and Ethiopian, asserted in her Application that she believed the respondent did not offer her the position because of her ethnic origin and race. The applicant also alleged that, in refusing to hire her, the respondent breached the settlement of her complaint to the Human Rights Commission (filed in 2006 and settled in 2007) and committed a reprisal against her for complaining to the Commission in 2006. The respondent filed a Response and, amongst several other objections to the Application, stated that the applicant was qualified for the part time banquet server position, but was not awarded the position because another qualified candidate had longer tenure with the respondent. The applicant did not file a Reply.
3By Case Assessment Direction (“CAD”) dated July 8, 2011, the Tribunal, on its own initiative, directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. The CAD also noted that the United Food and Commercial Workers, Local 333 (the “union” or “intervenor”) filed a Request to Intervene and that the respondent, in its Response, requested the applicant be declared a vexatious litigant. Accordingly, the Tribunal also directed that the Request to Intervene would be addressed at the outset of the Summary Hearing and whether the applicant is a vexatious litigant would be also be addressed during the Summary Hearing. The Summary Hearing was held on February 13, 2012 by teleconference.
4For the reasons that follow, the Application is dismissed.
THE HEARING
5In arriving at my decision I find it necessary to summarize the hearing process before me as ultimately, the applicant chose not to participate in the hearing.
6After some preliminary comments regarding the process I intended to follow during the Summary Hearing, I invited the union and the applicant to make submissions regarding the Request to Intervene to supplement their previously filed written material. Counsel for the union, Ms. Kent, proceeded to summarize the union’s position and drew my attention to several of the Tribunal’s decisions dealing with Requests to Intervene from unions. Counsel for the applicant, Mr. Mundulai, began by noting that before commencing his submissions he intended to ask the union questions in connection to its Request to Intervene.
7A Summary Hearing is not an evidence gathering exercise and the Tribunal typically informs parties in the CADs requiring Summary Hearings that no evidence or witnesses will be called during the proceeding, as indeed the Tribunal advised the parties in this case. The proper process during a Summary Hearing is for the parties to make submissions to the Vice-chair and not to engage in discussion or argument amongst themselves. In hearing the issue of the union’s status, I saw no reason to permit questions of the union. I therefore directed Mr. Mundulai to proceed with his submissions rather than ask questions of the union. He refused my direction and stated that he would proceed with his submissions after he asked his questions and received answers from the union. I attempted to redirect Mr. Mundulai, but he ignored my direction, speaking over me, and posed questions to the union. The questions required the union to identify the prejudice it or its members would experience should the matter proceed to hearing and should the Application succeed. I informed Mr. Mundulai that the union did not have to answer his questions and that, in my view, the union had provided the answers to his questions in its submissions. I also noted his tendency to interrupt me, and advised him that this was both inappropriate and unnecessary as there was ample time for all parties to make full submissions. Mr. Mundulai ignored me on this point and I was required to warn him that his behaviour was totally inappropriate and that the hearing would not continue if he persisted in this manner. This warning had no effect on Mr. Mundualai who responded to the effect that it was I that was behaving inappropriately. In the interest of moving the matter forward, I invited Ms. Kent to respond. Accordingly, Ms. Kent essentially repeated her submissions regarding the union’s interest in the Application given the potential impact on the collective agreement with the respondent and upon its members. Mr. Mundulai submitted that the union’s responses indicated that the potential impact upon its members was entirely speculative, but appeared to acknowledge that the Application, if successful, could impact the collective agreement.
8Following these submissions, I ruled that I was satisfied that the Applicant raised issues potentially affecting the union’s interests and, consistent with the Tribunal’s jurisprudence, I granted the Request to Intervene. I indicated that I would leave the scope of the union’s participation in any future proceedings to be determined by the Vice-chair or Member presiding over them. I also stated that I would include my reasons in writing along with my decision regarding the Summary Hearing, but given the disposition of the Summary Hearing such reasons are unnecessary.
9I then invited Mr. Mundulai to make his submissions regarding whether the Application should be dismissed because it has no reasonable prospect of success. Mr. Mundulai stated that he would proceed with his submissions, but also advised that he intended to continue to ask questions of the other parties throughout his submissions and that I was not to answer the questions or intervene in any manner with his submission. I attempted to correct this wholly inappropriate submission, but Mr. Mundulai again ignored me and spoke over me. For the next several moments Mr. Mundulai ignored my attempts to maintain order and indicated that he would not follow my directions, which he indicated were incorrect and showed that I had pre-judged the matter against his client. He therefore requested that I recuse myself from the Application on the basis that he did not think I could adjudicate the matter fairly.
10There was no basis for this submission and I declined to recuse myself. Mr. Mundulai responded that he would not proceed further before me. At this point, Mr. Mundulai paused long enough for me to point out that as the Vice-chair presiding over the matter I was entitled to manage the proceeding and that while he may have questions for the other parties, any submissions must be made to me and any questions to the other parties had to be made through me. I also warned Mr. Mundulai that failing to proceed could have consequences for his client and therefore I suggested that it may be in his client’s interest to proceed with the hearing.
11Mr. Mundulai then accused me of threatening him and reiterated that he would not proceed in front of me. When asked how the matter should proceed, he stated that I should adjourn the hearing and the Tribunal should assign another Vice-chair to hear the matter. I therefore asked the other parties for their submissions regarding the applicant’s proposal. Ms. D’Andrea, for the respondent, objected to ending the call and submitted that the respondent was prepared to proceed with me as the adjudicator to hear submissions regarding whether the Application should be dismissed for having no reasonable prospect of success. The intervenor also opposed any adjournment and the applicant’s request to have the matter heard by another Vice-chair. The intervenor submitted that there was no basis for the applicant’s request that I recuse myself.
12At this point in the hearing, the applicant and Mr. Mundulai hung up without warning. The hearing continued nonetheless and I received submissions from the respondent and intervenor regarding the effect of the applicant’s departure. The intervenor submitted that by leaving the hearing the applicant had abandoned the Application. Ms. Kent noted that the applicant had ample notice of the hearing and the hearing had been adjourned once on consent of the parties. She reiterated that nothing that occurred during the hearing justified the request that I recuse myself and, equally, nothing occurred to justify the applicant walking out of the hearing. Rather, Ms. Kent stated that Mr. Mundulai’s inappropriate behaviour was completely unprovoked and unprecedented in her experience and submitted that such behaviour has consequences. The respondent agreed that I should treat the Application as abandoned and submitted the applicant should have proceeded with the hearing and if she was unsuccessful could seek Reconsideration or judicial review regarding the outcome of the hearing or her allegations of bias. Counsel for the respondent submitted that Mr. Mundulai’s behaviour was completely inappropriate for a member of the Bar.
ANALYSIS
13The Code and the Tribunal’s Rules of Procedure confer broad powers upon Vice-chairs and Members to manage proceedings. Sections 39, 40 and 41 of the Code state as follows:
The Tribunal has the jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any application before it.
The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.
This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.
Rules 1.5 and 1.6 state as follows:
1.5. The Tribunal may exercise any of its powers under these Rules at the request of a party or on its on initiative, except where the Rules provide otherwise.
1.6. The Tribunal will determine how a matter will be dealt with and may use procedures other than traditional adjudicative or adversarial procedures.
Rule 1.7 sets out a lengthy list of specific powers the Tribunal, i.e., a Vice-chair or Member, may employ “In order to provide for the fair, just and expeditious resolution of any matter before it”. Amongst others, the Tribunal may:
n) limit the evidence or submissions on any issue;
v.1) make such orders or give such directions as are necessary to prevent abuse of its processes and ensure that the conduct of participants in Tribunal proceedings is courteous and respectful of the Tribunal and other participants; and
w) take any other action that the Tribunal determines is appropriate.
14As noted above, Summary Hearings are not a discovery or evidence gathering proceeding and parties are specifically informed that no evidence or witnesses will be called during the hearing. As with any hearing before the Tribunal, parties are expected to make their submissions to the presiding Vice-chair or Member. That is not to say that Summary Hearings must follow a rigid procedure, but the Vice-chair has the responsibility and authority to determine the manner in which a hearing will proceed and give procedural directions to the parties. Within the scope of this authority, I directed Mr. Mundulai to proceed with his submissions rather than pose questions to the intervenor, which in my view was unnecessary to the fair, just and expeditious conduct of the hearing.
15The Tribunal’s use of its authority to engage in active case management does not give rise to a reasonable apprehension of bias, nor does the fact that a party may disagree with its directions. In Noronha v. 1174364 Ontario, 2009 HRTO 1292, the applicant accused the presiding Chair of bias because he identified and sought submissions regarding a legal issue, which the applicant argued assisted the respondent. The Tribunal noted the well established principles to be applied in considering apprehension of bias, as enunciated by the Supreme Court of Canada in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394 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. 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 is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
(Emphasis Added)
The Tribunal went on to explain that proactive case management does not mean that an adjudicator has pre-judged an issue or the application in the following terms:
Modern approaches to procedural fairness do not require a Tribunal, in its dispute resolution functions, to be completely passive, particularly when it comes to case management, and the effective use of adjudicative resources. The mere fact that an adjudicator identifies an issue which he or she believes is important in a proceeding, and seeks submissions thereon, does not mean that the adjudictor (sic) is favouring one of the parties, or that the adjudicator has pre-determined the issue or the application. One of the reasons Tribunal adjudicators are selected on the basis of their specialized, subject area expertise, is to ensure the tribunal has the ability to identify relevant issues, which enables disputes to be resolved fairly and expeditiously.
16During the Summary Hearing, I granted intervenor status to the union, which was consistent with the Tribunal’s jurisprudence and attempted to give applicant’s counsel procedural directions, well within my authority, intended to expedite and maintain order during the hearing. The applicant was not prevented from making submissions, and was directed to make her submissions, through counsel, in an orderly manner. In my view an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that there was no basis for accusing me of bias. Consequently, I conclude the applicant has failed to raise a reasonable apprehension of bias and I declined to recuse myself.
17By hanging up during the teleconference, the applicant and her counsel committed the telephonic equivalent of walking out of the hearing. In Re Windsor Airline Limousine Services Ltd. and Ontario Taxi Association 1688 et al 20 O.R. (2d) 732 (Ont HCJ, Div Ct.) the Court considered an application for judicial review challenging, amongst other things, the decision of the Ontario Labour Relations Board (the “OLRB”) to decline to grant an adjournment. The applicant was an employer faced with union certification and unfair labour practice proceedings at the OLRB. The employer sought an adjournment of the hearing and when the OLRB denied the adjournment the employer walked out of the hearing. The OLRB continued with the hearing nonetheless and decided the issues before it in the absence of the employer. The Court dismissed the application and made the following comments regarding the risk a party runs by walking out of a hearing:
It has for some time been made plain in a number of decisions that one who chooses to leave on the ground that a tribunal is incompetent runs the risk of being foreclosed from any later complaint: see Re Nanda et al. and Appeal Board Established by Public Service Com'n (1972), 1972 CanLII 2142 (FCA), 34 D.L.R. (3d) 51 at p. 79, [1972] F.C. 277 at p. 307, and Re Ward et al. and Board of Blaine Lake School Unit No. 57 (1971), 1971 CanLII 750 (SK QB), 20 D.L.R. (3d) 651, [1971] 4 W.W.R. 161.
A similar situation prevails, and is becoming more apparent all the time, where an application for an adjournment is made unsuccessfully. The risk that a person who "walks out" will deprive himself of the right to complain later is a real one. This was the subject of some special comment made in a recent decision of the Divisional Court in the case of McGill v. City of Brantford, released April 30, 1980 [1980 CanLII 1741 (ON HCJ), 28 O.R. (2d) 721]. That was not a novel expression of the concept; it has prevailed for some time.
18Rando Drugs Ltd. v. Scott, 2007 ONCA 553, involved allegations of bias against a judge. The judge had been a partner in a firm that had once represented one of the defendants by counterclaim in the action in question. The judge had never been involved in the case and left the firm more than ten years before the commencement of the trial. The plaintiff by counterclaim (the appellant) nonetheless asked the judge to recuse himself, but he refused. The appellant and her counsel walked out of the court room and the judge dismissed the counterclaim. The Court of Appeal concluded that the trial judge was not required to recuse himself in the circumstances. The Court also agreed that the judge was correct in dismissing the counterclaim since there was no one in court to present evidence in support of it and refused to reverse the decision because of another potential bias issue that arose after the trial.
19I agree with the respondent and intervenor that by walking out of the hearing the applicant has abandoned the Application and it can be dismissed on that basis.
20However, and in the alternative, I will address the merits of the issues before me. As indicated in the CAD, the applicant was required at the Summary Hearing to describe or point to the evidence that she has or is reasonably available to her that would show a link between the respondent’s alleged actions and a prohibited ground of discrimination. In the Application the applicant stated that she was qualified for the banquet server position, but received a “letter of regret” on July 15, 2010 from Human Resources indicating that the position had been offered to someone else. The applicant asserted that she does not understand why the respondent did not offer her the position in light of her experience and asserted that she believes the reason was her ethnic origin and race. The respondent does not dispute that the applicant was qualified for the job, but stated in the letter of July 15, 2010 and its Response that the position was awarded based on tenure with the respondent because the candidates were equally qualified. Rule 9 of the Tribunal’s Rules of Procedure requires:
An Applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.
The applicant did not file a Reply, but would have had the opportunity to address the respondent’s position by pointing to evidence she had or may reasonably have access to that might cast doubt or contradict the respondent’s explanation. The applicant, of course, walked out of the hearing without making any submissions regarding the respondent’s position and therefore I have no basis for finding that such evidence may exist. In the absence of any indication of evidence contradicting the respondent’s explanation, there is no reasonable prospect that the applicant can succeed in proving the respondent’s decision not to select her into the banquet server position was discriminatory.
21The Application also sets out allegations of reprisal and contravention of the settlement of her complaint to the Commission reached in 2007. Other than the bare assertion that the respondent is punishing her for complaining to the Commission in 2006, there is nothing in the Application that could establish that the respondent’s actions in 2010 were intended as a reprisal because the applicant asserted her human rights. Similarly, the applicant does not indicate in her Application how the decision not to hire her is in breach of her settlement with the respondent. By walking out of the hearing, the applicant chose not to provide submissions pointing to evidence that might have provided a reasonable basis to believe that that the applicant was subject to a reprisal or that the respondent contravened its settlement with her. Consequently, there is no reasonable prospect that the applicant’s allegations of reprisal and breach of settlement will succeed.
22The Application is dismissed.
Dated at Toronto this 15th day of February, 2012.
“Signed by”
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Douglas Sanderson
Vice-chair