Moncur v. Beach Grove Golf and Country Club, 2012 HRTO 984

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cathy Moncur

Applicant

-and-

Beach Grove Golf and Country Club

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: May 16, 2012

Citation: 2012 HRTO 984

Indexed as: Moncur v. Beach Grove Golf and Country Club

WRITTEN SUBMISSIONS

Cathy Moncur, Applicant ) Mary Jane Campigotto, Counsel

Beach Grove Golf and ) Nancy Jammu-Taylor, Counsel

Country Club, Respondent )

INTRODUCTION

1The purpose of this Interim Decision is to address the applicant’s requests (1) to amend her Application and (2) for a stay of the proceeding.

BACKGROUND

2On December 31, 2009, the applicant filed an Application for Contravention of Settlement (Form 18) under s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), which alleged that the respondent breached the settlement of a previous Application.

3The Application also included allegations of reprisal, which should have been filed in a Form 1, not a Form 18.

4On January 21, 2010, the respondent filed a Response, which denied all the allegations of breach of settlement and reprisal.

5The Tribunal’s Registrar sent the parties a Notice of Confirmation of Hearing, which informed them that the Tribunal had scheduled a hearing of the Application for Contravention of Settlement for half a day on April 28, 2011.

6On April 28, 2011, the Tribunal heard evidence from the parties only with respect to the issue of whether or not the respondent breached the settlement of a previous Application. However, there was insufficient time to hear all of the respondent's evidence.

7At the end of the hearing day, the Tribunal informed the parties that two further hearing dates would be scheduled to hear the remaining evidence with respect to the breach of settlement issue, followed by the parties’ evidence with respect to the issue of reprisal.

8On consent of the parties, I exercised my authority pursuant to Rule 5.2 of the Tribunal’s Rules of Procedure to vary the application of the Tribunal’s Rules in order to accept and treat the applicant’s reprisal allegations as a Form 1 Application filed under s. 34 of the Code.

9On June 8, 2011, in response to a Case Assessment Direction (“CAD”) that I issued, the respondent filed a Request for an Order During Proceedings (“RFOP”), which requested that the Tribunal dismiss the applicant’s reprisal allegation pertaining to an incident that occurred on November 13, 2009, pursuant to s. 45.1 of the Code, because it is an abuse of the Tribunal’s process, and/or pursuant to s. 34(11) of the Code.

10On June 24, 2011, the applicant filed a Response, which opposed the respondent’s Request to dismiss the allegation at issue.

11In response to further CADs that I issued, the parties filed further written submissions and documents on this issue.

12The Tribunal’s Registrar also issued a Notice of Confirmation of Hearing to the parties, which informed them that the hearing was scheduled to continue on October 6 and 7, 2011.

13On October 3, 2011, the Tribunal issued an Interim Decision, 2011 HRTO 1792, which granted the applicant’s request to adjourn and reschedule the hearing.

14The Tribunal’s Registrar then issued a Notice of Confirmation of Rescheduled Hearing to the parties, which informed them that the hearing was scheduled to continue on February 8 and 9, 2012.

15On January 19, 2012, the Tribunal issued a CAD which informed the parties that the hearing would proceed in the following manner:

1. The Tribunal will finish hearing the parties’ evidence and submissions on the contravention of settlement allegation.

2. The Tribunal will hear, as a preliminary issue, the parties’ evidence and submissions with respect whether the applicant’s reprisal allegation pertaining to an incident that occurred on November 13, 2009 should be dismissed (a) pursuant to s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), (b) because it is an abuse of the Tribunal’s process, and/or (c) pursuant to s. 34(11) of the Code.

3. The Tribunal will hear the parties’ evidence and submissions on the merits of any outstanding reprisal allegations.

16On February 8 and 9, 2012, the hearing proceeded in the manner set out above. After hearing the parties’ evidence and submissions with respect to the preliminary issue set out in 2) above, I orally dismissed the applicant’s reprisal allegation pertaining to an incident that occurred on November 13, 2009. I informed the parties that written reasons would follow the hearing. At that point, approximately half a hearing day remained to hear the parties’ evidence and submissions on the merits of the outstanding reprisal allegations in the Application.

17The applicant then requested that I provide oral reasons for the dismissal and adjourn the hearing so that she could decide whether or not to file an Application for Judicial Review of my interim decision. The respondent objected to the applicant’s request because the case would be further delayed, and the applicant was aware from the CAD that the hearing would proceed if her reprisal allegation pertaining to the incident that occurred on November 13, 2009 was dismissed.

18I denied the applicant’s request for oral reasons for the dismissal, and reiterated that I would provide written reasons following the hearing. I also dismissed the applicant’s request to adjourn the hearing for the following reasons. The Tribunal has a duty to dispose of applications fairly, justly and expeditiously. See s. 40 of the Code and Rule 1.1 of the Tribunal’s Rules. The Tribunal’s Practice Direction: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournment also states that the Tribunal will only grant adjournment requests in extraordinary circumstances because such requests are a significant impediment to fair and timely access to justice. In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, the Tribunal further explained at para. 4:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used.

19In my view, the applicant did not identify extraordinary circumstances that justified adjourning the hearing. Based on the CAD, the applicant knew in advance of the hearing dates that her reprisal allegation pertaining to the incident that occurred on November 13, 2009, may be dismissed at the hearing, and that the Tribunal would then hear the parties’ evidence and submissions on the merits of any outstanding reprisal allegations. I could not see how it would be fair, just and expeditious to adjourn the hearing when there were outstanding reprisal allegations to be heard which pre-dated the reprisal allegation that was dismissed, and there was an expectation that the hearing would be completed on February 9, 2012.

20The applicant subsequently requested that the outstanding allegations of reprisal in her Application be withdrawn. The respondent consented to the applicant’s request. Accordingly, I granted the applicant’s request.

REQUEST TO AMEND

21At the hearing, the applicant also requested that her Application be amended to include an additional allegation of reprisal that occurred in April 2010. When I asked the applicant’s counsel why she had not filed an RFOP in advance of the hearing, she stated that her failure to do so was inadvertent.

22The respondent objected to the applicant’s request because the applicant did not file an RFOP in advance of the hearing, and it was not prepared to provide evidence in response to her new allegation.

23I decided to grant the applicant’s request to amend her Application on the condition that the new reprisal allegation is heard expeditiously. The hearing was scheduled to be completed on February 9, 2012, and the main reason that it was not completed is because of the applicant's late request to amend her Application.

24During a subsequent break, I realized that there was a gap of nearly two years between the time that the alleged incident of reprisal occurred (April 2010) and the time that she requested that her Application be amended to include the alleged incident (February 9, 2012). Therefore, I directed the parties to provide written submissions on whether the new allegation is within the Tribunal’s jurisdiction because of the timeliness issue.

25On March 16, 2012, the respondent filed written submissions which stated that there is no jurisdiction issue. The respondent cited the Tribunal’s Interim Decision in Grills v. Proctor and Gamble Inc., 2011 HRTO 2009, which stated at para. 25:

Section 34 (1) applies only to when a person may apply to the Tribunal and not to when s/he can seek amendments. The Tribunal can, and has, granted amendments to Applications after the one year period without requiring the applicant to satisfy the test under s. 34(2) of the Code.

26On April 2, 2012, the applicant filed written submissions which agreed with the principles set out Grills, supra.

27I agree with the parties that the applicant’s allegation is within this Tribunal’s jurisdiction, and direct the applicant to file written submissions, within two weeks of the date of this Interim Decision, which set out the full particulars of the alleged incident of reprisal in April 2010. The respondent is directed to file written submissions in response within four weeks of the date of this Interim Decision. The applicant may file written submissions in reply within five weeks of the date of this Interim Decision.

28The parties shall communicate with each other, and advise the Registrar by no later than two weeks from the date of this Interim Decision, as to their availability for one additional day of hearing. If no communication is received from the parties, the Tribunal may set the hearing date without further consultation with the parties.

29The parties shall deliver to each other and file with the Tribunal a witness list, witness statements, and copies of documents that they intend to rely upon no later than 30 days prior to the hearing.

30The parties will each have approximately half a hearing day to present their evidence and make closing arguments and submissions. I will set out precise timelines at the outset of the hearing day.

REQUEST FOR A STAY

31On March 26, 2012, the applicant filed an RFOP which requested the proceeding be held in abeyance until after a Judicial Review process has concluded. The applicant stated that she is pursuing an Application for Judicial Review of my oral decision dismissing her reprisal allegation pertaining to the incident that occurred on November 13, 2009. She stated that the reprisal allegation pertaining to the incident that occurred on April 23, 2010, was the culmination of a series of events that flowed from the November 13, 2009 incident. She stated that it would therefore be unfair to determine the merits of the reprisal allegation pertaining to the April 23, 2010 incident prior to her Application for Judicial Review being decided.

32In her RFOP, the applicant stated that the pleadings for Judicial Review will be provided to the Tribunal when they are filed. To date, the Tribunal has not received any such pleadings from the applicant.

33On April 4, 2012, the respondent filed a Response, which objected to the applicant’s Request because the Application for Judicial Review is premature and presupposes an inability of the Tribunal to resolve the reprisal allegation pertaining to the incident that occurred on April 23, 2010.

34In Washington v. Toronto Police Services Board, 2009 HRTO 640, at paras. 6-12, the Tribunal set out the applicable legal principles relating to a request for a stay of a proceeding before this Tribunal:

(…) The parties agree that for a stay to be granted, the respondents must establish: (1) that there is a serious issue to be tried; (2) that they will suffer irreparable harm if the stay is not granted; and (3) that the balance of convenience favours the granting of the stay: Brockie v. Brillinger (No. 1) (1999), CHRR Doc. 99-119 (Ont. Bd. Inq.); King v. Toronto Police Services Board, 2008 HRTO 55.

This test, of course, reflects the traditional civil test for the granting of an injunction or a stay. In relation to an application for judicial review of an interim Tribunal decision, it should be considered in the context of the Tribunal’s role in the human rights system under the newly revised Code. I therefore make some comments about this system before considering the application of the test to the facts of this case.

It is a well-established principle of judicial review that “delays or interruptions occasioned by judicial review proceedings should be avoided except in ‘exceptional circumstances’”: King, supra at para. 26. As the Divisional Court explained in Ontario College of Art v. Ontario (Human Rights Commission), 1993 CanLII 3430,

For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion.

The Divisional Court has emphasized that this approach should be applied by adjudicators in considering requests like this one, holding that a labour arbitrator erred in adjourning an arbitration pending a decision on a judicial review of an interim decision: Placer Dome Inc. v. United Steelworkers of America, Local 8533, [1994] O.J. No. 522.

These principles, in my view, are supported and strengthened by the provisions of the new Code, and, in determining requests for stays pending judicial review, the Tribunal should take the legislature’s guidance into account. Section 41 permits 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” [emphasis added]. Decisions of the Tribunal are final and not subject to appeal or to being set aside in a judicial review unless the decision is patently unreasonable: s. 45.8.

Most important, s. 43(8) of the Code specifically addresses the issue of procedural rulings, providing as follows:

Failure on the part of the Tribunal to comply with the practices and procedures required by the rules or the exercise of a discretion under the rules by the Tribunal in a particular manner is not a ground for setting aside a decision of the Tribunal on an application for judicial review or any other form of relief, unless the failure or the exercise of a discretion caused a substantial wrong which affected the final disposition of the matter.

The requirement for a procedural ruling to affect the “final disposition” of the matter in order to be set aside by a Court is, in my view, a particularly strong signal that the Tribunal should be reluctant to fragment or interrupt its proceedings as a result of an application for Judicial Review, absent exceptional circumstances.

In summary, unlike the previous Code in which decisions could be appealed as of right to the Divisional Court, the new Code sets up the Tribunal as a specialized adjudicative agency, focused on the fair, just and expeditious resolution of matters before it and subject to a privative clause. In applying the test for a stay, these features of the legislation must be central to the analysis.

35I accept that there is a serious issue to be tried, but I do not accept that irreparable harm will occur if a stay is not granted and that the balance of convenience favours granting a stay.

36With respect to the issue of irreparable harm, I agree with the respondent that the applicant is merely speculating that the Tribunal will be unable to fairly resolve the reprisal allegation pertaining to the incident that occurred on April 23, 2010.

37I am also not satisfied that the balance of convenience favours granting the stay. The applicant has not provided any evidence that she has actually filed an Application for Judicial Review, or when the hearing before the Divisional Court will take place. The Tribunal has a duty to proceed in an expeditious manner and granting a stay in these circumstances will not promote that objective.

38Accordingly, the applicant’s request for a stay of the proceeding pending the conclusion of the Judicial Review process is denied.

ORDER

39The Tribunal makes the following orders and directions:

1. The applicant’s reprisal allegation pertaining to an incident that occurred on April 23, 2010, is within this Tribunal’s jurisdiction.

2. Within two weeks of the date of this Interim Decision, the applicant shall file written submissions which set out the full particulars of the alleged incident of reprisal that occurred on April 23, 2010.

3. Within four weeks of the date of this Interim Decision, the respondent is directed to file written submissions in response.

4. Within five weeks of the date of this Interim Decision, the applicant may file written submissions in reply.

5. The parties shall communicate with each other, and advise the Registrar by no later than two weeks from the date of this Interim Decision as to their availability for one additional day of hearing. If no communication is received from the parties, the Tribunal may set the hearing date without further consultation with the parties.

6. The parties shall deliver to each other and file with the Tribunal a witness list, witness statements, and copies of documents that they intends to rely upon no later than 30 days prior to the hearing.

7. The parties will each have approximately half a hearing day to present their evidence and make closing arguments and submissions. I will set out precise timelines at the outset of the hearing day.

8. The applicant’s request for a stay of the proceeding pending the conclusion of the Judicial Review process is denied.