HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
William Fish
Applicant
-and-
National Steel Car Ltd.
Respondent
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: Fish v. National Steel Car Ltd.
WRITTEN SUBMISSIONS
William Fish, Applicant ) Grantley Howell, Representative
1This Interim Decision addresses the applicant’s argument that he was denied procedural fairness when he was not provided with reasons for the refusal of his Request to Expedite, which was filed with his Application on May 25, 2011. The applicant argues that Rule 21.2.1 of the Rules of Procedure, which provides that the Tribunal need not give reasons for refusing a Request to Expedite, should be quashed. The Request to Expedite was dismissed through a letter from the Registrar, noting that Vice-chair Brian Eyolfson had considered the request and it was refused.
BACKGROUND
2Rule 21 reads as follows:
21.1 An Applicant may request that the Tribunal deal with an Application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute. A Request to Expedite an Application must be made in Form 14 and filed with the Application in accordance with Rule 6.1 or 24.1.
21.2 A Request to Expedite an Application made under Rule 21.1 must include:
a) a detailed description of the requested changes to the Tribunal’s normal process, including timelines;
b) one or more declarations signed by persons with direct first-hand knowledge detailing all the facts upon which the Applicant relies in support of the request to expedite; and
c) submissions that explain:
(i) why there are urgent circumstances that may affect the fair and just resolution of the merits of the Application if the Application proceeds in accordance with the Tribunal’s regular process;
(ii) the harm that would result if the Request is denied; and,
(iii) why the Application should be given priority for Tribunal resources over other matters.
21.2.1 Where the Tribunal denies a Request to Expedite, it need not give reasons.
21.3 A response to a Request to Expedite an Application must be in Form 15, Response to Request to Expedite an Application, delivered to all other parties and any affected persons identified in the Application and filed with the Tribunal not later than seven days after the request was sent or as the Tribunal directs.
3Form 14, which must be filed on a request to expedite proceedings, directs parties to review the Tribunal’s Practice Direction on Requests to Expedite an Application and Requests for an Interim Remedy (“Practice Direction”) before completing the form. The Practice Direction reads in relevant part as follows:
Important Information about Expedited Proceedings
The HRTO’s Rules allow an applicant to request that their application be dealt with in an expedited manner. However, the HRTO will only expedite an application and give it priority over other applications in exceptional circumstances.
In its decisions, the HRTO has refused to grant requests to expedite unless the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the HRTO’s regular process (Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53) or where refusal to expedite will render the remedy for the alleged human rights breach moot or unavailable (Ebrahimi v. Durham District School Board, 2009 HRTO 1062).
Except in the rarest of circumstances and without a compelling explanation, an applicant who has not filed the application promptly after identifying the alleged human rights breach will not be given the priority for HRTO resources of an expedited proceeding (Kwan v. Hospital for Sick Children, 2009 HRTO 621).
The HRTO has held that financial pressures, emotional and psychological stress are generally not the type of factors that meet the high threshold for expediting an application. As well, general, vague or speculative assertions about the harm that may result if an application is not expedited may not be sufficient to establish that an application is truly urgent and should be expedited.
What is an Expedited Proceeding?
If the HRTO decides to order an expedited proceeding, it will determine what changes are necessary to its processes for that particular case. Changes may include abridgement of response, reply, and disclosure timelines, where the parties consent to mediate, scheduling rapid mediation dates, and/or setting early hearing dates. The HRTO may also exercise its powers under the Code and Rule 1.7 to direct the hearing process to ensure a particularly expeditious resolution. The HRTO reviews requests to expedite and, in patently urgent circumstances, may abridge the times for filing the Response to Request to Expedite (Form 15).
Requesting an Expedited Proceeding
An applicant who has determined that it is appropriate to request an expedited proceeding must complete a Form 14 (Request to Expedite) and file it with the HRTO along with their Application (Form 1).
A Request to Expedite must:
Describe in detail the urgent and exceptional circumstances that may affect the fair and just resolution of the merits of the application if the application proceeds in accordance with the Tribunal’s regular process. General, vague or speculative statements will not assist the HRTO in considering the Request.
Describe the harm that would result if the Request is denied. The Request should provide as much detail as possible to explain the harm that will result from the application being processed according to the usual timelines.
Explain why the application should be given priority for HRTO resources over other matters, for example, why the applicant’s circumstances are more urgent than those described in many other applications the HRTO receives.
Set out a detailed description of the requested changes to the HRTO’s normal process, including dates or timeframes where applicable.
If medical circumstances are relied on in support of the request, evidence in the form of medical documentation from a registered medical practitioner will generally be required.
A Request to Expedite must also include one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the applicant relies in support of the Request to Expedite. For more information on declarations, see section “What is a Declaration?” below.
The HRTO will review the Request to Expedite and may direct the respondent(s) to deliver to the other parties and file a Response to Request to Expedite (Form 15) or may deny the Request to Expedite. Unless otherwise directed by the HRTO, respondent(s) have seven (7) days to deliver and file (along with a Statement of Delivery (Form 23)) their Response to Request to Expedite (Form 15).
If the HRTO directs a Response to Request to Expedite, it will review the Request and the Response and determine whether to order an expedited proceeding or to deny the Request.
Where the Request to Expedite is denied, the HRTO does not have to give reasons.
4The Tribunal has developed jurisprudence that has clearly established the test for the granting of a Request to Expedite: Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53; Ebrahimi v. Durham District School Board, 2009 HRTO 1062; Kwan v. Hospital for Sick Children, 2009 HRTO 621. An applicant must demonstrate that the circumstances are truly urgent, requiring the resolution the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process. This test is reflected in the submissions the applicant must make under Rule 21.2 (c) and clearly articulated in the Practice Direction.
ANALYSIS
5The applicant argues, first, that written reasons are required pursuant to the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 as amended (“SPPA”). Section 17 (1) of the SPPA reads as follows:
A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give reasons in writing therefor if requested by a party.
6The decision on whether a proceeding will be expedited is a procedural decision, not the final decision in the proceeding. It relates to when deadlines will be and when the hearing will be scheduled. The applicant, citing Sigrist v. London District Catholic School Board, 2008 HRTO 34, states that a final decision is one that disposes of one of the central issues between the parties. A decision about when the hearing will be scheduled and the deadlines for procedural steps is not a central issue between the parties; it has no bearing on the merits of the application. The SPPA does not require reasons.
7The applicant’s more significant argument is about procedural fairness. The applicant argues that common law procedural fairness requires reasons for a decision to deny an applicant’s request to expedite.
8Until the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, the common law did not require written reasons in any circumstances. In Baker this jurisprudence changed and the Supreme Court held as follows, at paras. 43-44:
In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.
In my view, however, the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision. Accepting documents such as these notes as sufficient reasons is part of the flexibility that is necessary, as emphasized by Macdonald and Lametti, supra, when courts evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured. It upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that in the administrative context, this transparency may take place in various ways. I conclude that the notes of Officer Lorenz satisfy the requirement for reasons under the duty of procedural fairness in this case, and they will be taken to be the reasons for decision.
9In my view, there is no common law obligation to give written reasons in this situation. As the Supreme Court said in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 20:
Baker stands for the proposition that “in certain circumstances”, the duty of procedural fairness will require “some form of reasons” for a decision (para. 43). It did not say that reasons were always required, and it did not say that the quality of those reasons is a question of procedural fairness. In fact, after finding that reasons were required in the circumstances, the Court in Baker concluded that the mere notes of an immigration officer were sufficient to fulfil the duty of fairness (para. 44).
10The decision about whether or not to expedite is about procedure, deadlines and scheduling. Decisions about such matters in courts and tribunals are often made without formal written reasons. For example, the Ontario Court of Appeal and the Supreme Court of Canada typically give only the result when they decide an Application for Leave to Appeal. The applicant has cited general case law about the duty to give reasons about the merits of a case, which in my view does not apply to this type of procedural decision.
11Even if there is a common law duty to give reasons, I find that it was met in this case. Baker notes that the transparency required by the duty to give reasons can be met in various forms, recognizing the day-to-day realities of administrative agencies. The Tribunal’s test for granting a Request to Expedite is well-established in case law and clearly set out in the Tribunal’s practice direction. It is evident that when a request is denied, the Vice-chair has considered the test and found that the circumstances and evidence provided by the applicant do not meet the established test. A formal decision would add little to the applicant’s understanding of the basis for the decision.
12The applicant argues that the lack of reasons makes him unable to seek reconsideration. Under the Tribunal’s rules, reconsideration is not available for a decision such as this one, as it is not a final decision: see Rule 26.1 and Sigrist. There is no need for reasons in order to seek reconsideration in these circumstances.
13For all these reasons, the applicant’s Request is dismissed.
14I am not seized of this matter.
Dated at Toronto, this 21^st^ day of February, 2012.
“Signed by”
David A. Wright
Associate Chair