Norouzian v. Young Women’s Christian Association of Greater Toronto, 2013 HRTO 1131

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bahareh Norouzian

Applicant

-and-

Young Women’s Christian Association of Greater Toronto

Respondent

-and-

Canadian Union of Public Employees, Local 2189

Intervenor

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: June 27, 2013

Citation: 2013 HRTO 1131

Indexed as: Norouzian v. Young Women’s Christian Association of Greater Toronto

APPEARANCES

Bahareh Norouzian, Applicant

Self-represented

Young Women’s Christian Association of Greater Toronto, Respondent

Frances R. Gallop, Counsel

Canadian Union of Public Employees, Intervenor

Devon Paul, Counsel

Introduction

1Three days of hearing were scheduled in this matter for January 7, 8 and 9, 2013. On the evening of the first day of hearing, the applicant sent the Tribunal a Request to Adjourn the remaining two days of hearing, on the ground that she was too unwell to continue. When the hearing reconvened the next day, the applicant was not in attendance.

2On January 9, 2013, the Tribunal issued a Case Assessment Direction (“CAD”) directing the applicant to provide certain documentation relating to her request for an adjournment and advising that if she provided such information, a teleconference hearing would be conducted to hear submissions regarding her Request for an Adjournment and her failure to appear at the next scheduled hearing date.

3The applicant provided documentation in response to the CAD and a teleconference hearing was scheduled.

4In the intervening time period, the Intervenor union advised that it was changing counsel, and that Devon Paul would be representing it in this matter. In a CAD dated February 5, 2013, I advised the parties that Mr. Paul is the son of one of my former law partners, and that accordingly, I know him personally. The CAD noted that I have heard evidence in this matter, and am seized. The parties were advised that at the teleconference hearing being scheduled to consider the matter of the applicant’s Request for an Adjournment, they would also have the opportunity to make submissions regarding whether they believe the identity of the Intervenor union’s counsel raises a reasonable apprehension of bias, and to make submissions regarding what they propose, if it does.

5The teleconference hearing was convened and all parties participated.

Whether there is a reasonable apprehension of bias

6The applicant submitted that there is a reasonable apprehension of bias and suggested that I remove myself from her case. She also submitted that she “heard” that adjudicators are “changed” every three months and that there are “lots of decision makers on cases”. She submitted that she is not asking that the hearing recommence, but submitted that “someone else” can hear the remainder of the evidence. She made no submissions regarding why she feels there is a reasonable apprehension of bias, other than to say that she believes my participation in the mediation/adjudication process, in which the parties participated on the first day of hearing, indicated bias.

7The respondent took the position that there is no reasonable apprehension of bias and that I should remain seized of this matter. Counsel referenced the test for reasonable apprehension of bias, as articulated by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board) 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 (“Liberty”), a per de Grandpre at p. 394:

…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 wouls 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 not decide fairly.’

8Counsel also cited Latronico v. York Region District School Board, 2012 HRTO 2497 (“Latronico”).

9Counsel for the respondent submitted that there is no way that an informed person would conclude that I would not decide this matter fairly simply because I have a casual acquaintance with Mr. Paul. She noted that it is very common for members of the bar to know each other. She also noted that Mr. Paul does not act for one of the main parties to this dispute and that the union has sought to intervene merely with regard to remedy, as the remedy the applicant seeks may be inconsistent with the terms of the collective agreement in that workplace.

10With regard to the applicant having raised the question of bias in connection with my participation in the mediation/adjudication process, counsel for the respondent indicated that she was “astounded”, as the applicant had agreed to participate in that process with no indication of any such concerns and submitted that it is a “stalling tactic”.

11Counsel for the respondent submitted that if I were to recuse myself from this matter at this point, it would not be possible to have a fair, just and expeditious hearing. The facts relating to the applicant’s allegations are already several years old and there has been extensive case management in this matter. She submitted that it would result in a waste of public resources to recommence the hearing and that there is a significant onus on the applicant to establish reasonable apprehension of bias.

12Counsel for the union also submitted that there was no reasonable apprehension of bias. He also cited the appropriate test as articulated by the Supreme Court in Liberty.

13Additionally, he submitted that my continuing as adjudicator in this matter is in accordance with the Tribunal’s Rules of Ethical Conduct, and he submitted that a member of the Tribunal is ineligible to conduct a mediation or adjudication involving a party or representative with whom he or she was formerly in a significant professional relationship until a period of one year has elapsed from the termination of the relationship.

14Mr. Paul noted that we have not practiced law together nor have we ever been in any professional relationship with each other. He allowed that there may be “some slight personal relationship” which results in us having seen each other in a social setting on a very occasional basis, but submitted that there is nothing in that relationship which would lead a reasonable person to conclude that I would decide this matter on anything other than an impartial basis.

15Counsel for the Intervenor Union also cited Latronico and Latronico v. York Region District School Board, 2012 HRTO 637 (“Reconsideration decision in Latronico”), which he submitted are analogous to the situation at hand. In those cases, the Vice-chair had a slight personal relationship through the respondent’s counsel’s mother, as there was some connection between them due to the fact that family members attended the same school. Counsel for the intervenor submitted that in Latronico the Vice-chair correctly interpreted the test for reasonable apprehension of bias and found that a reasonably informed person would not conclude that she would not decide the matter fairly based on that relationship. He also pointed out that in the Reconsideration decision, the Associate Chair noted that it is not unusual for there to be some social acquaintance between lawyers and Vice-chairs and that there is a presumption of impartiality.

16He submitted that we have never had a professional relationship and have only a slight personal relationship which cannot rise to the level of reasonable apprehension of bias. He submitted that there is nothing in our personal relationship which would result in me having a closed mind in this matter. He also noted that the Intervenor has an interest in the remedial aspects of this matter, if any, but not in the merits.

17Following the parties’ submissions at the teleconference hearing, I called a recess. During that time, I reviewed and considered the submissions. When we reconvened, I advised the parties that having considered the submissions, I did not find that the test for reasonable apprehension of bias had been made out, and that reasons would follow. Accordingly the teleconference hearing continued. What follows are my reasons for finding that the test for reasonable apprehension of bias was not made out.

18In Latronico, at paragraph 22, the Tribunal noted that “there is a presumption of impartiality and the onus is on the person seeking disqualification to establish a reasonable apprehension of bias”. I do not find that the applicant has discharged such an onus.

19The circumstances of my acquaintance with Mr. Paul are that I know him as the son of my former law partner and have seen him on a very occasional basis in a social setting. I am not in ongoing social contact with Mr. Paul. As the Associate Chair of the Tribunal observed in the Reconsideration decision in Latronico, it does sometimes happen that “an adjudicator may have met a lawyer for one of the parties prior to the hearing in a professional or social setting”. These are not circumstances which indicate a close personal relationship, nor do they indicate any professional relationship at all. Accordingly, I do not find that a reasonably well-informed person, viewing the circumstances, could have a reasonable apprehension that I would make a biased determination of the issues to be decided.

20The applicant also submitted that there was a reasonable apprehension of bias flowing from my participation in the mediation/adjudication session held on the first day of hearing, January 7, 2013. It is important to recall that prior to the mediation session, the parties executed a Mediation/Adjudication Agreement, which included the following paragraph:

4. We understand that a Tribunal member will conduct the mediation. We agree that if the parties are unable to resolve the application through mediation, the Tribunal member who conducted the mediation will conduct the hearing and adjudicate the Application. Neither party may request that the Tribunal member recuse himself or herself based upon anything that occurred during the mediation.

21As the Tribunal noted in Taite v. Carleton Condominium Corporation No. 91, 2011 HRTO 2334, the Mediation/Adjudication Agreement is a clear basis for denying a recusal request where the request arises from events occurring during the mediation.

22Further, in its decision in Nyonzima v. Human Rights Tribunal of Ontario, 2012 ONSC 5120, the Divisional Court noted that the Tribunal’s Rules of Procedure “allow for consensual mediation-adjudication by the same person with the express consent of the parties following the execution of a mediation adjudication agreement” and stated that “In such circumstances the mediator may continue to hear the matter as an adjudicator”.

23It is worth noting, in any event, that the applicant’s allegation provides no basis for recusal. Right from the commencement of the adjudication/mediation process, I advised both parties that I had not and could not come to any conclusions about the merits of the Application, since I had not heard any evidence. I stressed that should the mediation be unsuccessful and should I ultimately have to decide the matter of this Application, my decision would be based only on the evidence and submissions provided in the hearing. I have not pre-determined any issue and there is no basis for my recusal. In my view, an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that there was no reasonable apprehension of bias.

24For all of these reasons, I do not find that a reasonably well-informed person, viewing the circumstances, could have a reasonable apprehension of a biased determination of the issues to be decided, and I decline to recuse myself.

25I also note that the applicant appears to be under the misapprehension that adjudicators are “changed” on matters on a regular basis and that the hearing could simply resume with a different adjudicator without recommencing the evidence. As noted in the February 5, 2013 CAD, I have heard evidence and am seized of this matter. Any change of adjudicator would require the hearing to recommence.

Request for an Adjournment

26During the evening following the first day of hearing, the applicant sent an email to the Tribunal and to the respondent, stating that she had “ongoing back pain and dizziness since August 2012 and my back pain and my dizziness got severe by this evening”. She requested an adjournment of the next two hearing days, saying “I cannot attend the hearing on these dates”. She also indicated that she would provide “doctor’s notes very shortly”.

27At 9:01 a.m. the next day, the Tribunal emailed the parties, advising that the Vice-chair would deal with the request for an adjournment at the start of the hearing day.

28The applicant was not in attendance at the hearing, nor was anyone there to address the Request for Adjournment on her behalf.

29The respondent opposed the Request for Adjournment and sought dismissal of the matter, and in the alternative, submitted that the adjournment be granted on condition, with the applicant being required to produce medical documentation from August 2012 to present.

30The applicant subsequently wrote indicating that she had made a typographical error in her original Request for Adjournment, and indicating that her “ongoing pains” had commenced in August 2011, not August 2012. She also provided a January 8, 2013 note from a chiropractor, which stated that she was under his care due to injuries sustained in a motor vehicle accident and that:

She has multiple strain/sprain with ongoing chronic pain that has made her limited in terms of prolonged sitting/standing, she also gets muscle spasm on/off, her condition is complicated by her persistent headaches and dizziness and psychological disturbances.

She is advised to rest for the next 3-4 days.

31The above-noted chiropractor note was not found to provide sufficient information regarding her assertion that she was unable to attend the hearing in this matter. In the January 9, 2013 CAD directing the applicant to provide documentation in support of her Request for an Adjournment, the Tribunal directed her to provide the following:

1. Clinical notes form her general practitioner and/or treating physician from August 2011 to present, regarding back pain and dizziness;

2. A letter from her general practitioner and/or treating physician regarding her inability to attend and participate in the hearing January 8 and 9, 2013, which specifically includes any objective verifiable findings to support her inability to attend and participate in the hearing January 8 and 9, 2013;

3. Any other medical documentation she has relating to her back pain and dizziness since August 2011 to the present date.

32The applicant provided a January 15, 2013 letter from her doctor stating that she had reported “severe dizziness, vertigo, headache, nausea, generalized weakness and aggravation of her back pain since 7th of January 2013 as she left the hearing tribunal, which lasted long hours”. The letter stated “Due to above mentioned conditions, she was not able to attend the tribunal in next few days [sic]”. She also provided results from several medical tests and clinical notes which appear to be from her doctor, dated October 6, 2011 to November 1, 2012. Much of what is contained in the notes is illegible, but they appear to contain references to complaints of back pain and January 6, March 12 and May 30, 2012 references to dizziness. She also included what appear to be treating notes from her chiropractor, from an assessment on September 22, 2011, and from follow up treatments. A treatment note dated January 8, 2012, which follows a treatment note dated December 17, 2012 states in part as follows:

Had long standing yesterday in court & also in subway, so pain started at night, could not sleep well, took medication. Very stiff in the morning. Hypertonic QL (L greater than R). Moves slowly.

33I note that this treatment note also indicates “sick note”.

34At the teleconference hearing, the applicant submitted that her Request for Adjournment should be granted and she should be excused from not having attended the second scheduled hearing date as she was experiencing severe dizziness, vertigo, headache, nausea, generalized weakness and aggravation of her back pain due to prolonged sitting and/or standing and due to her stress level.

35She also submitted that she was too ill to attend on January 8, 2013, and also that she had acted promptly in making an appointment with her doctor, but that January 15, 2013, was the earliest appointment she could obtain.

36Counsel for the respondent submitted that the applicant’s Request to Adjourn should be denied, based upon her failure to appear at the second day of hearing and based on what counsel submitted was medical documentation which was not in compliance with the January 9, 2013 CAD. She submitted that the hearing dates had been scheduled eight months in advance and had been accepted by all parties. She submitted that the applicant’s “list of symptoms” has now grown. She also submitted that the applicant sent an email on the evening of January 7, 2013, and that in effect she made her own decision not to attend the hearing January 8 and 9, 2013, without seeking or obtaining medical advice.

37She submitted that the applicant has not provided medical evidence to support her claim of dizziness and back pain that evening, and noted that the applicant did not attend at her doctor’s office until January 15, 2013. She submitted that if the applicant was in so much distress that she could not attend at the hearing, she should have gone to a walk-in clinic or the emergency department at a hospital if she was unable to get an appointment with her doctor. She submitted that the applicant has not provided any letter from her general practitioner or treating physician indicating objective, verifiable findings. She submitted that the note from the applicant’s doctor simply “parrots” what she reported to him, and does not include objective verifiable findings. In any event, she notes that the note reflects a visit to the doctor one week after the relevant date, and therefore is “worthless”.

38She also disputed the note’s description of the hearing as lasting “long hours” as the day began with an attempt to reach a mediated resolution, with the result that the hearing itself did not commence until 1:30 or 2 p.m. She noted that at the hearing, the applicant made no complaint of pain or discomfort. She also submitted that the chiropractor’s note indicates an inaccurate description of the hearing day, saying that she stood for “long hours” when in fact the parties were seated for most of the day.

39Counsel submitted that pursuant to the Tribunal’s published practice direction regarding the scheduling of hearings and requests for adjournments, and due to the fact that a last-minute request, such as the one the applicant made, results in a significant impairment to justice, an adjournment should only be granted in extraordinary circumstances.

40Counsel for the respondent cited Caster v. George Brown College, 2009 HRTO 1881 (“Caster”), where the applicant was seen by a doctor one day after a hearing date which she claimed she was unable to attend. The Tribunal stated that the applicant had commenced a legal proceeding, and Tribunal and respondent resources had been allocated to the matter. The Tribunal dismissed that application. Counsel argued that this Application should be similarly dismissed.

41Counsel for the respondent also cited Goodridge v. Toronto Police Services Board, 2011 HRTO 2208 (“Goodridge”), where the applicant failed to attend a scheduled hearing and sought reconsideration of a decision which dismissed his Application as abandoned. There, the applicant saw a doctor five days later, and the doctor provided a note which simply reported the applicant’s complaints of flu-like gastroenteritis and his assertion that he had been unable to contact anyone for the first four days of his illness. The Tribunal stated in that decision that a proceeding at the Tribunal is a serious legal proceeding, entailing obligations on all parties, including the applicant’s obligation to attend at scheduled hearing days.

42Counsel also cited Gonzalez v. Toronto Catholic District School Board, 2010 HRTO 523 (“Gonzalez”), where the applicant sought an adjournment 11 days in advance of the scheduled day. In that matter, the applicant complained of chronic neck and back pain. The respondent did not object to the adjournment request, but the Tribunal denied the request for an adjournment in any event, finding that there was no medical evidence to support the applicant’s request. The only medical documentation provided was a letter from the applicant’s doctor noting that the doctor had been treating the applicant for several years and that he suffered from chronic pain and takes medications which may affect his ability to concentrate. Counsel for the respondent argued that in this case, there is no medical evidence to support the dramatic change in condition the applicant asserts.

43Summing up, counsel for the respondent submitted that the applicant has been aggressively pursuing the Application for a lengthy period and that it has resulted in significant expense to the respondent. She noted there have been several Requests for Order During Proceedings, two Responses have been required, extensive documentation has been produced and the respondent has had to allocate resources to prepare for and attend at the hearing days. She submitted that the Request for Adjournment should be denied and the matter should be dismissed.

44The Intervenor Union took no position on the Request to Adjourn.

45I note that in Caster, the applicant did not contact the Tribunal in advance regarding her failure to attend, and the medical information she provided was a brief doctor’s note authored the day after her failure to attend, simply confirming that she was seen for “flu symptoms which apparently caused her to miss an appointment on October 20, 09”.

46In Goodridge, the applicant had sought adjournments of hearing days on previous occasions due to his incarceration, and had always communicated his inability to attend in advance of the scheduled hearing days. On the occasion leading to the decision to dismiss, however, he did not communicate with the Tribunal, was seen by a doctor several days later, and provided a doctor’s note which indicated that he had reported having been “bed-ridden and unable to contact anyone for the first 4 days”. In that case, the Tribunal confirmed the applicant’s responsibility to contact the Tribunal and other parties as quickly as possible regarding illness and the need for an adjournment, as well as the need to provide requested medical evidence to support the request. The Tribunal noted that as the doctor did not see the applicant until five days after the scheduled hearing day, there was “no actual medical evidence” to support the applicant’s assertions. The Tribunal did not accept, in the absence of supporting medical documentation, that the applicant was so incapacitated by illness that he could not attend the hearing, or that he was unable to seek medical attention at an earlier point.

47In Gonzalez, the Tribunal dismissed the request for an adjournment as the medical documentation simply indicated that the applicant’s health problems had been present for several years, there was no medical evidence to support a dramatic change in his condition, nor was there any indication that any of his problems would improve within a reasonable period of time.

48In this matter, though the applicant did not attend the second scheduled day of hearing, as she was obliged to do, on the evening of the first day, she did advise that she would be unable to attend the next day.

49I agree with counsel for the respondent that the doctor’s letter of January 15, 2013, does not provide much more than an indication of what she reported to him, and as such, does not provide support for her assertion that she was ill and therefore unable to attend.

50In reviewing the chiropractor’s notes, I am satisfied that the note dated “January 8, 2012” was actually a note of her visit on January 8, 2013. I am persuaded that it is from January 8, 2013 based on the fact that it is preceded by a note from December 2012, it makes reference to the fact that the applicant was at a hearing, and it indicates “sick note”, presumably the January 8, 2013 note provided by the applicant to the Tribunal. In the treatment note, the chiropractor indicated a finding of “hypertonic QL (L greater than R). Some previous notes indicate similar findings, but in reviewing this treatment note in tandem with the January 8, 2013 note provided to the Tribunal, where he recommended that she rest for the next 3-4 days, I find that the medical documentation appears to provide some basis for an assertion that the applicant was experiencing an acute episode of back pain which required that she rest. I am concerned by what appears to be a mischaracterization of the requirement for standing at the hearing, however, and the applicant is advised that should she make any future requests for an adjournment of a scheduled hearing day on a medical basis, she may be required to provide detailed medical documentation which specifically addresses how and why she is unable to attend a hearing at the Tribunal and what, if any, accommodation, would render her attendance possible.

51The Registrar will schedule dates for the continuation of this hearing.