Michelin v. Johnson, 2013 HRTO 1914

Human Rights Tribunal of Ontario

Between: Neil Michelin, Applicant -and- Ralph Johnson and Chris Carter, Respondents

Interim Decision

Adjudicator: Douglas Sanderson Date: November 19, 2013 Citation: 2013 HRTO 1914 Indexed as: Michelin v. Johnson

Written Submissions

Neil Michelin, Applicant Self-represented

Nishnawbe-Gamik Friendship Centre, Proposed Respondent Holly Walbourne, Counsel

Ralph Johnson, Respondent Jordan Lester, Counsel

Chris Carter, Respondent No one appearing

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin, creed, family status and marital status.

2Ralph Johnson, an individual respondent, filed a Request for an Order During Proceedings on October 24, 2013. In a Case Assessment Direction, dated November 1, 2013, the Tribunal wrote at paras 6-9:

As noted, Ralph Johnson, an individual respondent, filed a Request for an Order During Proceedings on October 24, 2013 ("the Request") seeking an order removing him as a respondent to the Application. The organizational respondent responded to the Request on October 29, 2013 and indicated that it did not oppose Mr. Johnson's request to be removed as a party. The other parties have not yet responded to the Request.

When assessing a request to remove an individual respondent from an Application, a key consideration for the Tribunal is whether there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct. See Persaud v. Toronto District School Board, 2008 HRTO 31. Having reviewed the procedural history of this Application, however, it is not clear that the organizational respondent Nishnawbe-Gamik Friendship Centre ("Nishnawbe-Gamik") remains a proper respondent to the Application. On April 13, 2011, the applicant filed a Request to Withdraw the Application as against Nishnawbe-Gamik. Nishnawbe-Gamik consented to the Request to Withdraw by letter dated September 19, 2011 and I note that this letter indicates that the applicant requested withdrawal pursuant to an agreement with Nishnawbe-Gamik. In an earlier Interim Decision in this matter, 2011 HRTO 1796, the Tribunal accepted the applicant's Request to Withdraw and ordered that the Application was withdrawn as against Nishnawbe-Gamik and the style of cause amended accordingly.

In Interim Decision 2011 HRTO 1796, the Tribunal also ordered the individual respondents to file complete Responses. Mr. Johnson complied with this direction and named Nishnawbe-Gamik as an additional respondent in his Response. It does not appear that the other individual respondent, Chris Carter, filed a complete Response. It appears that the Tribunal administratively added Nishnawbe-Gamik to the Application without considering the effect of the Tribunal's order withdrawing the Application as against Nishnawbe-Gamik. In Ihasz v. Ontario (Revenue), 2013 HRTO 333, the Tribunal found that the Tribunal has the discretion to reconsider a decision granting withdrawal of an Application, pursuant to section 45.7 of the Code and Rule 26.5 of the Rules. A decision granting withdrawal of an Application could be subject to a Request for Reconsideration, pursuant to Rule 26.5 of the Tribunal's Rules of Procedure. Of course, there has been no Request for Reconsideration regarding the Tribunal's decision to grant the applicant's Request to withdraw. Accordingly, there does not appear to have been any basis for "reactivating" this Application against Nishnawbe-Gamik. Nishnawbe-Gamik's letter of September 19, 2011 also indicates that the applicant agreed to withdraw the Application against Nishnawbe-Gamik pursuant to a settlement between them. Accordingly, allowing the Application to proceed against Nishnawbe-Gamik may also be an abuse of process.

In my view, the issue of removing Mr. Johnson cannot be addressed until Nishnawbe-Gamik's status in this Application is determined. In these circumstances the most fair, just and expeditious procedure is to direct the parties to make submissions on these issues in advance of the hearing.

3The Tribunal directed the parties to make submissions regarding whether the Nishnawbe-Gamik Friendship Centre (the "Centre") is a proper respondent to this Application and whether allowing the Application to proceed against the Centre would amount to an abuse of process. The applicant and the Centre filed submissions as directed. Mr. Johnson also filed a Response to the Request in which he agreed with the applicant's Request. Mr. Johnson subsequently filed submissions in support of his position that the Centre remains a proper respondent to this Application. Mr. Carter did not file submissions and the time for doing so has passed.

Submissions

The Applicant

4The applicant acknowledged that he withdrew the Application as against the Centre over a year ago in the knowledge that Centre admitted "wrongdoing", was in a state of disarray and had no defence. Nonetheless, the applicant submitted that the Tribunal should reinstate the Centre as a respondent in light of the following:

• The Centre's submissions provide inconsistent information, which shows that the facts it relies upon are not accurate;
• The Centre has had six Executive Directors and counsel from three different law firms since the Application was filed;
• The Centre is a not-for-profit organization and has used its funds and employees to address the Application and its submissions have delayed the progress of the Application;
• The applicant has no income and is a disadvantage because he has no legal knowledge or training. The applicant asserts that he has been traumatized by the respondents' actions;
• The applicant believes evidence exists that would establish that a former acting Executive Director of the Centre made defamatory comments that affected his reputation in the applicant's community;
• The applicant recently learned of the existence of documents that he believes strongly support his Application and will summons the individual, a board member, who possesses them; and,
• The Centre has agreed to the removal of Mr. Johnson as an individual respondent. Mr. Johnson was the elder at the Centre when it was in a state of disarray.

The applicant included several documents related to the operation of the Centre in support of his submissions.

The Centre

5The Centre submitted that the applicant's request to name the Centre as a respondent amounts to a Request for Reconsideration of the Tribunal's Interim Decision, 2011 HRTO 1796, issued in October 2011 granting withdrawal of the Application as against the Centre. The Centre submitted that the facts asserted by the applicant in support of his Request would not be determinative of the case and in event were not new facts that could not have obtained earlier. The Centre submitted that the documents submitted by the applicant involve unrelated incidents and most of his assertions, to the extent they were particularized, related to alleged misconduct directed at a third party, which are irrelevant to this proceeding. The Centre also submitted that the incidents described in these documents occurred in late 2010 and early 2011 and therefore are not "new". The Centre submitted that the applicant did not describe the evidence he has recently come to believe exists that supports his Application. The Centre therefore submitted that no new information has come to light that would suggest that the Centre should be renamed as a respondent to the Application.

Mr. Johnson

6Mr. Johnson made several submissions in support of his position that the Centre is a proper respondent in this Application.

Centre's By-laws and [Section 46.3(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec46.3subsec1_smooth) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

7Mr. Johnson noted that the Centre's by-laws require the Centre's Board of Directors to appoint an Elder, who becomes the ninth Director and has all the powers of a Director. Mr. Johnson noted that there is no dispute that he was the Elder and a Director of the Centre. Mr. Johnson submitted that Article 5.10.1(a) of the Centre's by-laws indicate that the Centre will indemnify every Director for any action, suit, or proceeding that is brought against him regarding any act done in the execution of the duties of his office. The applicant submitted that Article 5.10.1(a) is consistent with section 46.3(1) of the Code, which states as follows:

For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers' organization.

8Mr. Johnson submitted that the Board of Directors voted to terminate the applicant's employment during a meeting held on October 29, 2009. Pursuant to the motion, Mr. Johnson and Mr. Carter communicated this decision to the applicant. Accordingly, the individual respondents were simply carrying out their duties as Directors and Mr. Johnson submits that the applicant has not identified any incident in which Mr. Johnson violated the applicant's Code rights. Consequently, Mr. Johnson submitted that the Centre is a proper respondent to the Application, as mandated by the Code and the Centre's By-laws.

Abuse of Process

9Mr. Johnson also submitted that permitting the Application to proceed against the Centre would not amount to an abuse of process. Citing the Ontario Court of Appeal's decision in Niagara North Condominium Corp. No. 125 v. Waddington, 2007 ONCA 184, Mr. Johnson submitted that the test to be applied regarding abuse of process is "whether there has been a misuse of the Tribunal's procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute." Mr. Johnson submitted that there has permitting the Application to proceed against the Centre would not be an abuse of process because 1) the issue is now moot, 2) there would be no prejudice to any of the parties, 3) Mr. Johnson's Response was not given proper consideration and 4) Mr. Johnson did not have a full appreciation of the implications of removing the Centre

The Issue is Moot

10Mr. Johnson submitted that the applicant filed a Request for an Order during Proceedings to have the Centre re-included as a party to the Application and Mr. Johnson immediately consented to such an order. Accordingly, Mr. Johnson submitted that "basic logic" dictates there is no live controversy between the parties on this issue because the applicant no longer wants the Centre removed from the Application. Mr. Johnson submitted that the applicant's request to "reactivate" the Application as against the Centre renders the abuse of process issue moot.

No Prejudice

11Mr. Johnson submitted that the Centre has continued to participate in the proceedings, notwithstanding the Tribunal's order granting withdrawal against it. Mr. Johnson noted several examples of the Centre's active participation in the litigation of this Application. Mr. Johnson submits that the Centre has been fully preparing to defend the Application and has not been hindered in its ability to make a full answer and defence. Mr. Johnson submitted that the Centre has not explained its position that to allow the Application to proceed against it would "highly prejudicial and against the public interest".

Mr. Johnson's Response

12Mr. Johnson submitted that the Tribunal did not give full consideration to his Response. Mr. Johnson submitted that in Interim Decision 2011 HRTO 1796, in which the Tribunal granted withdrawal as against the Centre, the Tribunal referred to the reasons Mr. Johnson gave for opposing withdrawal as against the Centre as follows: "Respondent Johnson indicates that, as a Board Member of the organizational respondent, he believed that counsel for the organizational respondent would represent him in the matter." In the same Interim Decision, the Tribunal noted that respondent Carter did not file a Response. Mr. Johnson submits that the Tribunal appears to have focussed solely on the fact that Mr. Carter did not file a Response and did not properly consider Mr. Johnson's Response.

Failure to Appreciate the Implications of a Withdrawal

13Mr. Johnson submitted that he is a 59 year old Ojibwa elder who grew up on the Seine River First Nation and now resides in Sioux Lookout, ON, approximately 400 kilometres northwest of Thunder Bay. Mr. Johnson submitted that he has very limited understanding of the legal process and did not appreciate the implications of having the Centre removed from the Application. Mr. Johnson states that this actions left him dumbfounded as he understood that the Centre would represent him in this matter. Further, Mr. Johnson was unaware of his right to request reconsideration of the Tribunal's decision granting withdrawal as against the Centre. Mr. Johnson noted that he has now retained legal counsel and that he would have vigorously opposed the applicant's request to withdraw had he retained counsel at the time.

Analysis and Decision

14A Tribunal decision granting withdrawal of an application can be subject to a request for reconsideration, pursuant to Rule 26.5 of the Tribunal's Rules of Procedure. See Ihasz v. Ontario (Revenue), 2013 HRTO 333. In my view, the applicant's submissions amount to a Request to Reconsider the Tribunal's October 2011 Interim Decision. Rule 26.1 requires a party seeking reconsideration to file a Request for Reconsideration within 30 days of the date of the decision in question. Neither the applicant nor the individual respondents met this deadline. There was no reason for them to file a Request for Reconsideration at the time as the Tribunal administratively added the Centre to the Application without regard to the order granting withdrawal of the Application as against the Centre. I therefore find it appropriate to lengthen the time limit for filing a Request for Reconsideration. For the reasons that follow, I find that the reconsideration is not appropriate in this case.

15The circumstances in which reconsideration may be granted are set out in Rule 26.5:

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking Reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the Reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed Reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

16The Tribunal's Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

17To succeed in a request for reconsideration of a decision granting withdrawal of an applicant, the party seeking reconsideration must provide compelling and extraordinary reasons for reversing an order granting withdrawal of an application. Examples of such compelling and extraordinary circumstances would include evidence of that the applicant lacked of capacity when he or she requested withdrawal or that the request to withdrawal was procured by fraud or under duress. Once the Tribunal grants a withdrawal, the party against whom an application is withdrawn is entitled to consider that he, she or it will have no further involvement in the application.

18In this case, the applicant's submissions contained no assertions that would indicate that he did not understand the implications of his Request to Withdraw, that the Centre procured the Request to Withdraw improperly or any other factor that would amount to extraordinary circumstances that would outweigh the public interest in finality of orders and decisions. To the contrary, the applicant candidly acknowledged that he filed a Request to Withdraw regarding the Centre, despite the fact that he understood that the Centre had "admitted wrongdoing" and that the Centre "had no defence". The applicant's submissions consist of reasons why he believes the Application would be successful against the Centre if the Centre is reinstated as a respondent. The fact that the applicant believes his claim against the Centre to be meritorious is not new and in any event not a sufficient reason, in my view, to reverse the Tribunal's order granting withdrawal of the Application.

19I also did not find Mr. Johnson's submissions to be persuasive. Mr. Johnson is correct that section 46.3(1) deems a respondent employer to be liable for the acts of its employees or officers for acts committed in the course of their duties that amount to violations of the Code, subject to exceptions regarding harassment. Section 46.3(1) does not require, however, that an employer be named a respondent when the conduct of its employees or officers is in question.

20The issue of whether the Centre should be reinstated as a respondent is most certainly not moot, since the Centre itself has clearly taken the position that it should not be a party to this Application. The agreement of the applicant and Mr. Johnson, who are aligned in interest on this issue, is not sufficient to extinguish the controversy of a fundamental issue affecting another litigant, i.e., the Centre.

21While it does appear that the Centre would be able to defend its position if it remained a respondent, I do not agree that it would not suffer prejudice if it is required to. As noted above, a withdrawal ends an application against the party whom an application is withdrawn. The prejudice therefore is that such a respondent shall be required to reengage in a process of which it had every reason to believe it was safely clear. In my view, the Tribunal should permit this only in the clearest of cases. The Centre has already been prejudiced by being required to defend an application withdrawn against it. In my view, this is not a proper basis for reinstating the Centre as a respondent, which will cause it further prejudice.

22Mr. Johnson's submitted that the Tribunal failed to properly consider his Response when it granted the applicant's request to withdraw the Application against the Centre. First, whether the Tribunal's decision was incorrect does not in my view have any bearing on the issue of abuse of process. Second, reconsideration is not an appeal and disagreement with a Tribunal decision is not a basis for reconsideration. See Latronico v. York Region District School Board, 2012 HRTO 637 and 4137566 Canada Ltd. v. Clements, 2011 HRTO 1008. In any event, the Tribunal took note of Mr. Johnson's position that he understood the Centre would represent him and the fact that Mr. Carter did not file a Response. The Tribunal makes no further mention of either of these facts and there does not appear to be any basis for the assertion that the Tribunal either ignored Mr. Johnson's submission or place undue weight on Mr. Carter's failure to file a Response.

23Mr. Johnson is a layperson and may well have been confused by the circumstances arising in the fall of 2011, the order granting withdrawal followed by the apparent reinstatement of the Centre. However, Mr. Johnson has since retained counsel who has made thorough, if unsuccessful, submissions on his behalf regarding whether the Centre is a proper respondent to this Application.

Request to Remove Mr. Johnson

24As noted in the Case Assessment Direction, whether there is an organizational respondent in the proceeding is a key consideration for the Tribunal when considering a request to remove and individual respondent. See Persaud v. Toronto District School Board, 2008 HRTO 31. In this case, I have found that the Application was withdrawn against the Centre, the organizational respondent, and that there is no proper basis to reverse that decision. Accordingly there is no organizational respondent remaining in this Application and in these circumstances I find it would not be appropriate to remove Mr. Johnson as a respondent.

Order

25The Request for Reconsideration is denied and I find there is no other proper basis for reinstating the Centre as a respondent. Consequently, the Centre is not a respondent to this Application. The request to remove Mr. Johnson as an individual respondent is denied. The Application shall proceed against the individual respondents only and the style of cause shall be amended accordingly.

Case Management

26The Tribunal commonly offers the parties Mediation/Adjudication, pursuant to Rule 15A of the Tribunal's Rules of Procedure, at the commencement of a hearing, and I will make this offer to the parties in this. I would be grateful if the parties would consider whether they are willing to attempt Mediation/Adjudication prior to the hearing. I also note that, based on Mr. Johnson's submissions, the Centre may be required to indemnify the individual respondents for any damages that may be awarded against them in this proceeding, pursuant to its By-laws.

In these circumstances, the Centre may wish to consider seeking Intervenor status in order to participate in the proceedings, including Mediation/Adjudication.