HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Margaret Way Applicant
-and-
Governing Council of the University of Toronto Respondent
INTERIM DECISION
Adjudicator: Ken Bhattacharjee Date: March 27, 2012 Citation: 2012 HRTO 628 Indexed as: Way v. Governing Council of the University of Toronto
WRITTEN SUBMISSIONS
Margaret Way, Applicant ) Self-represented
Governing Council of the University of Toronto, Respondent ) Sari Springer, Counsel
INTRODUCTION
1The purpose of this Interim Decision is to deal with various preliminary issues, and to provide directions to the parties with respect to the hearing.
BACKGROUND
2On May 10, 2011, the parties attended a mediation at the Tribunal, which did not result in a settlement of the case.
3On November 10, 2011, the Tribunal issued a Notice of Confirmation of Hearing to the parties, which informed them that the hearing was scheduled for April 2, 2012. The Notice also informed them that requests for adjournments will be dealt with in accordance with the Tribunal’s Practice Direction: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments. The Practice Direction provides that requests to reschedule a hearing must be made within 14 days of receiving the Notice, and requests for adjournments thereafter will only be granted in extraordinary circumstances, such as the illness of a party, witness, or representative.
ADJOURNMENT REQUEST
4On January 23, 2012, the applicant filed a Request for an Order During Proceedings, which requested an adjournment of the hearing for two reasons. First, she stated that she had applied for a Legal Aid certificate, but had not received a final decision about it yet. Second, she stated that she injured her knee on May 12, 2011, and will have an operation in March or April 2012.
5On February 9, 2012, the respondent filed a Response which opposed the applicant’s Request.
6In my view, the applicant’s ongoing attempt to obtain a Legal Aid certificate is not an extraordinary circumstance which justifies delaying the hearing. She has known since May 10, 2011, when the mediation was unsuccessful, that the case would be scheduled for a hearing, and has had nearly a year to obtain legal representation.
7In my view, the applicant’s knee injury and pending operation are also not extraordinary circumstances which justify delaying the hearing. She has not presented any medical evidence that shows that her knee injury affects her ability to attend the hearing, and has not presented any evidence confirming when her operation will take place.
8The applicant’s Request to adjourn the hearing is therefore denied.
ANONYMIZATION REQUEST
9On December 16, 2011, the applicant filed a Request for an Order During Proceedings which requested that the Tribunal anonymize her because this case deals with information relating to a perceived disability, which will stigmatize her if it is made public.
10On January 10, 2012, the respondent filed a Response which opposed the applicant’s Request.
11Rule 3 of the Tribunal’s Rules of Procedure provides for open justice, subject to limited exceptions:
3.10 The Tribunal’s hearings are open to the public, except when the Tribunal determines otherwise.
3.11 The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.
3.12 All written decisions of the Tribunal are available to the public.
12S. 9(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 also provides:
An oral hearing shall be open to the public except where the tribunal is of the opinion that,
(a) matters involving public security may be disclosed; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests if any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public.
13Furthermore, in C.M. v. York Region District School Board, 2009 HRTO 735, this Tribunal stated at para. 20:
(…) An open justice system is a fundamental principle of a free and democratic society, so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. Moreover, the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society. It is important for there to be public scrutiny when respondents [are] found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld. I agree with the respondents that it is a serious matter to be accused of breaching the Code, which may also cause stress and stigma. Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured that they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particular parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.
14In my view, the principle of open justice outweighs the applicant’s interest in anonymity in this case. The applicant included information in her Application about a perceived disability which is of a personal nature and potentially stigmatizing, but she also made a number of serious allegations of discrimination against the respondent. She also made a number of broad statements about gays and lesbians and Jews, and filed a Request for an Order During Proceedings to obtain personal information about a non-party individual whom she named and identified as “young, Jewish and homosexual.” In these circumstances, it would not be appropriate to allow the applicant to pursue her allegations behind a shield of anonymity.
15The applicant’s Request to be anonymized in this proceeding is therefore denied.
MEDIATION
16Both parties sent the Tribunal correspondence which requested that the hearing scheduled for April 2, 2012 be converted into a mediation. The request is denied. The parties have already attended a mediation at the Tribunal, and, in my view, it would not be expeditious to postpone the hearing in order to hold a second mediation.
DIRECTION
17The Tribunal directs, on its own initiative, that the parties shall provide oral submissions at the outset of the hearing on whether the Application should be dismissed on the basis that it has no reasonable prospect of success.
18Rule 19A of the Tribunal’s Rules of Procedures provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10:
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.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
19For an application to continue in the Tribunal’s process there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.
20Typically, summary hearings are held at a relatively early stage in the Tribunal’s process and do not involve calling witnesses. Summary hearings typically involve receiving the applicant’s submissions on his or her legal theory and what evidence he or she anticipates calling at the merits hearing in support of the allegations. However, the principle that an application can be dismissed because it has no reasonable prospect of success is not limited to the initial early stage of the Tribunal’s process, and can be heard as a preliminary issue at the outset of a hearing of the merits of the application, as in the case at hand. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, at para. 18.
21After hearing the parties’ submissions, I will provide further directions to the parties.
ORDERS
22The Tribunal makes the following orders:
The applicant’s Request to adjourn the hearing is denied.
The applicant’s Request to be anonymized in this proceeding is denied.
The parties’ request to turn the hearing into a mediation is denied.
The parties shall provide oral submissions at the outset of the hearing on whether the Application should be dismissed on the basis that it has no reasonable prospect of success.
Dated at Toronto, this 27th day of March, 2012.
”signed by”________________
Ken Bhattacharjee
Vice-chair