Ihasz v. Ontario (Revenue), 2013 HRTO 333

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ronald Ihasz Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Revenue Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: February 27, 2013 Citation: 2013 HRTO 333 Indexed as: Ihasz v. Ontario (Revenue)

APPEARANCES

Ronald Ihasz, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Revenue, Respondent Paul Meier, Counsel

1This is an Application, filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal or threat of reprisal. The hearing of this matter was scheduled to be heard on January 14, 15 and 16, 2013. The purpose of this Interim Decision is to address issues that arose after the first day of hearing.

Background

2The applicant worked for the respondent as a Tax Administration Manager (“TAM”) and specialized in the Employer Health Tax. The respondent identified the applicant as one of the employees to be transferred to the Canada Revenue Agency (“CRA”) as part of the Harmonized Sales Tax initiative. The transfer process was delayed because the applicant went on a disability leave and ultimately not completed because the CRA did not approve the applicant’s “Reliability Status”.

3In the Application, the applicant states that his claim for long term disability benefits was denied and he therefore decided to return to work. The applicant alleges that the respondent failed to accommodate him by designating him as surplus instead of placing him in TAM positions, as he requested.

4The Applicant also filed Application 2011-10019-I, which alleged that the respondent’s selection of the applicant for transfer to the CRA amounted to discrimination because of disability and a reprisal for previous human rights complaints. The applicant filed a Request to Withdraw this Application on December 21, 2012, which the Tribunal granted on January 8, 2013.

5By prior agreement reached during a case management teleconference on January 10, 2013, the parties engaged in mediation/adjudication during the first day of hearing on January 14, 2013. The parties were unable to resolve the matter through mediation and the matter was adjourned to January 15, 2013.

6Following the adjournment, the applicant requested, by e-mail message, to be able to reverse the withdrawal of Application 2011-10019-I, explaining that he had been depressed and overwhelmed when he made the Request to Withdraw.

7Prior to re-commencement of the hearing on January 15, 2013, the applicant informed the Tribunal and counsel for the respondent by e-mail message that he was too ill to attend the hearing that day. The applicant also asked the Tribunal to assign another Vice-chair to hear the matter because of perceived bias on my part. The applicant also repeated his request to reverse the withdrawal of Application 2011-10019-I.

8Later in the morning of January 15, 2013, the Tribunal issued a Case Assessment directing the parties to be prepared to address the issues of bias, whether the applicant could re-open Application 2011-10019-I and, if so, whether all or part of Application 2011-10019-I was untimely, assuming the applicant was able to attend the hearing on January 16, 2013. Unfortunately, the applicant was unable to attend on January 16, 2013, and the hearing was adjourned. By Case Assessment Direction dated January 16, 2013, the Tribunal set out a timetable for the parties to provide written submissions on these issues.

9As will be seen below, I have dismissed the applicant’s request that I recuse myself as well as his request to re-open Application 2011-10019-I. In these circumstances, it is unnecessary to record or address the parties’ submissions regarding the timeliness of Application 2011-10019-I.

Submissions

The Applicant

Reasonable Apprehension of Bias

10The applicant submitted that two Interim Decisions I rendered in this matter, 2012 HRTO 2043 and 2012 HRTO 2275, show bias. These Interim Decisions dealt with requests for production of documents made by the parties. In Interim Decision 2012 HRTO 2043, I dismissed part of the applicant’s request because the respondent asserted that it had disclosed all of the documents in certain categories and the applicant provided no basis for concluding that this was not true. I also ordered the respondent to produce arguably relevant documents regarding a job competition that had not been produced. In Interim Decision 2012 HRTO 2275, I ordered the applicant to disclose documents he referred to in his Application and Reply in Application 2011-10019-I (which had not yet been withdrawn) because they were arguably relevant. The applicant submitted that these decisions show that I favour the respondent and disregarded his submissions. With respect to Interim Decision 2012 HRTO 2275, the applicant submitted that I “warned” him that failure to produce the documents as ordered could result in the Tribunal dismissing his Application. The applicant also submitted that the “strong wording” of the Case Assessment Direction of January 16, 2013 indicated that I “targeted” the applicant because of his disability.

11The applicant submitted that I showed bias during the mediation/adjudication session because I heard evidence that could be incorporated in the decision at the hearing; gave “knowing looks and nods” to the respondent's lawyer whenever he spoke; allowed respondent’s counsel to use the same hearing room door as I did and appeared to be friends with him and allowed him to borrow a pen. The applicant submitted that my statements during the mediation session indicated that I would rule in the respondent's favour if mediation failed. The applicant submitted that his impression was that I provided information to the respondent and helped the respondent with the drafting of an offer for settlement because I left and returned to the hearing room with respondent’s counsel at approximately the same time.

Withdrawn Application

12The applicant submitted that he withdrew Application 2011-10019-1 when he was overwhelmed and depressed.

The Respondent

Reasonable Apprehension of Bias

13The respondent submitted that the applicant’s request that I recuse myself on the grounds of alleged bias amounted to an attempt to “shop” for an adjudicator and was a violation of the Mediation/Adjudication Agreement that the applicant signed on January 14, 2013. The respondent submitted that there is a presumption of impartiality and the party seeking recusal bears the onus of establishing a reasonable apprehension of bias. The respondent submitted that the impartiality of a decision maker is not negated solely by having prior experience with an issue. The respondent referred to Khaiter v. Ontario (Labour Relations Board), [2009] O.J. No. 3190, in which the Divisional Court ruled that the fact that a Vice-chair of the Labour Relations Board had previously ruled against the applicant in that case on a number of occasions does not create a reasonable apprehension of bias. The respondent also submitted that allegations of bias should be raised at the earliest possible opportunity and not used as a tactic.

14The respondent submitted that the Interim Decisions I issued in this matter involved production matters and gave no indication that I had closed my mind should the matter proceed. The respondent submitted that no reasonable person could possibly believe that I exhibited any signs of bias. The respondent also submitted that the Interim Decisions were rendered October 25, 2012 and December 5, 2012, respectively, but the applicant did not raise bias allegations until after mediation was unsuccessful. The respondent submitted that the applicant’s belated allegation of bias is plainly a tactic, i.e., an attempt to “adjudicator shop”.

15The respondent submitted that respondent’s counsel and I had never met before January 14, 2013. The respondent submitted that the applicant’s evidence of bias, e.g., that respondent counsel borrowed a pen from me to make notes, was “comical”. The respondent denied the applicant’s allegations regarding the mediation session and characterized them as specious. The respondent submitted that the applicant blatantly resiled from the Mediation/Adjudication Agreement.

Withdrawn Application

16The respondent submitted that the Tribunal lacks the jurisdiction to re-open a withdrawn application. The respondent noted that an administrative tribunal such as the Tribunal is limited to the powers expressly conferred upon it through statute. The respondent submitted that, pursuant to section 34 of the Code, the Tribunal has jurisdiction to inquire into a violation of the Code only if there is a valid application. The respondent submitted that the Tribunal has no jurisdiction once an application is withdrawn. The respondent submitted that there is no applicable common law mechanism that would allow the Tribunal to re-open the Application. The respondent submitted that the Tribunal’s Rules of Procedure (the “Rules”) indicate how an application may be withdrawn, but there is no mechanism that permits an application to be “re-opened” once it is closed.

17The respondent submitted that the applicant appears to be putting his legal capacity in question regarding his decision to withdraw Application 2011-10019-I. The respondent submitted that the applicant’s assertion in this regard is insufficient to nullify his withdrawal. The respondent noted that adults are presumed to have capacity, pursuant to section 2 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). The respondent submitted that the Tribunal has required medical evidence addressing the applicant’s mental capacity to rebut the presumption of capacity. The respondent also submitted that the Tribunal has found claims of incapacity to be without merit in cases where an applicant displayed rational behaviour and decision-making and has actively participated in the proceedings.

18The respondent stated that it did not take issue with the applicant’s general claims of depression, but submitted that he has presented no evidence to demonstrate that he lacked the necessary mental capacity when he withdrew the Application.

19The respondent submitted that the applicant has been an active participant in the litigation process, which required him to make decisions about how he conducted his case. The respondent submitted that this activity demonstrated his capacity and ability to appreciate the nature and consequences of his decisions. In that regard, the respondent noted that the applicant had capacity, amongst other things, to bring several applications to the Tribunal, deal with interim issues, participate in mediation and review and comment on the evidence gathered by the respondent. The respondent submitted that the applicant describes himself as a person with a mental health issue, but has never suggested any incapacity to commence his various applications. The respondent submits that his decision to withdraw his application is no different.

20The respondent pointed to correspondence with the applicant on December 20 and 21, 2012 that indicate the applicant was considering withdrawing both Applications against the respondent because his health was suffering. The respondent noted that, ultimately, the applicant withdrew Application 2011-10019-I, requested mediation for Application 2012-10882-I and submitted a request seeking accommodation regarding the hearing. The respondent submitted that the applicant raised no issue regarding his decision to withdraw Application 2011-10019-I until after the mediation of Application 2012-10882-I was unsuccessful.

Analysis and Decision

Reasonable Apprehension of Bias

21The Supreme Court of Canada enunciated the principles to be applied in considering apprehension of bias in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394 as follows:

. . . 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 would 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, would not decide fairly.”

22Tribunal adjudicators routinely make preliminary rulings regarding cases they have been assigned to adjudicate, which often includes issuing Interim Decisions regarding productions issues. The Tribunal has ruled on several occasions that making preliminary rulings or engaging in case management does not create a reasonable apprehension of bias. See Group of Employees v. Presteve Foods, 2012 HRTO 1365, Rosenberg v. Ombudsman Ontario, 2012 HRTO 676, Mayta v. Canada Lands, 2009 HRTO 1613, and Noronha v. 1174364 Ontario, 2009 HRTO 1292. In Presteve Foods, supra, the Tribunal made the following apposite comment, at paragraph 10:

To the extent the respondent argues that an adjudicator hearing the merits cannot have heard a preliminary matter in the same case, I disagree. It is the role of an adjudicator to make preliminary decisions in advance of the final decision, with neutrality, and this facilitates the resolution of cases in an effective manner for all parties. Parties before the Tribunal understand that each issue is approached on its own merits. The applicant was unable to cite any case that would suggest that there is a reasonable apprehension of bias if an adjudicator or judge who has made a previous ruling on a different issue in the same case makes further rulings.

23The applicant is dissatisfied with the Interim Decisions I issued in this matter, but that is not a basis for finding a reasonable apprehension of bias. I would also note that his allegation that the Tribunal threatened to dismiss his Application if he did not comply with a production order is not accurate. The applicant provided no other basis for concluding that the Interim Decisions in question demonstrated bias.

24Similarly, the applicant gave no explanation regarding how the wording of the Case Assessment Direction of January 16, 2013 indicated bias. The purpose of the Case Assessment Direction was to set a timetable for written submissions and did so in typical language.

25Prior 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.

As 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.

26It is worth noting, however, that the applicant’s allegations are either simply wrong or no basis for recusal. On several occasions in the mediation session, I emphasized 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 did not assist the respondent with the proposal they put to the applicant and in fact was not present in the respondent’s break-out room when it was drafted. Respondent’s counsel presented the proposal to me after it was drafted and he came with me into the hearing room, where the applicant was located for the mediation session, to explain it to the applicant. As a matter of convenience, counsel and I entered through the same door. Similarly, respondent’s counsel forgot to bring a pen with him on one occasion he came into the hearing room for discussions with the applicant. Rather than have him leave the room for a pen, I lent him a pen so that he could take notes. I met respondent’s counsel for the first time on January, 14, 2013 – we are not friends – and I was no more courteous to him than the applicant. 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.

Reactivation of a Withdrawn Application

27I respectfully disagree with the respondent’s submission that the Tribunal has no jurisdiction to re-open an Application once it has been withdrawn. Withdrawal of an application under Rule 10 of the Rules is not automatic and requires an order of the Tribunal. Pursuant to Rule 10.5, the Tribunal’s permission is required to withdraw an application where a response has been filed, as in this case. Where, as here, the Request to Withdraw is unopposed, the Tribunal will generally allow withdrawal through an administrative closing letter, but in other cases an adjudicated decision is required. See for example, Dixon v. Ontario (Attorney General), 2011 HRTO 2011. The Tribunal has the discretion to reconsider its decisions, pursuant to section 45.7 of the Code and Rule 26.5 of the Rules. In my view, the applicant’s request to re-open Application 2011-10019-I amounts to a Request to Reconsider the Tribunal’s decision to permit withdrawal of that application. The applicant has not, however, established that reconsideration is appropriate in this case.

28The 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.

29The 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.

30In my view, the applicant’s request could come under Rule 26.5(a) on the basis that the applicant’s condition at the time he requested withdrawal is a new fact or under Rule 26.5(d) on the basis that his incapacity at the material time outweighs the finality of the Tribunal’s decision. The applicant has not, however, established the requirements of either sub-rule.

31The applicant’s only submission in support of re-opening the withdrawn application was that he was overwhelmed and depressed. On its face, the applicant’s submission does not indicate that he lacked capacity or did not understand the consequences of the decision. In any event, the law presumes that adults have capacity. See, for example, s. 2 of the SDA and Perino v. Perino, 2008 CanLII 11048 (2008), 52 R.F.L. (6th) 341, at paragraph 46 (Ont. S.C.J.). The Tribunal requires parties relying on a medical condition to provide evidence establishing that condition. See Taranco v. Michedes (a.k.a. Michaelides), 2011 HRTO 1188, Karamesinis v. National Steel Cars, 2009 HRTO 1812, Rivard v. George Brown College, 2009 HRTO 2212, Pelletier v. Nortrax Canada, 2011 HRTO 1968, and Boodhoo v. McMaster University, 2010 HRTO 1757. The applicant, however, provided no medical evidence that would support a conclusion that he lacked the capacity to withdraw the Application.

32The applicant’s actions in the litigation of this matter also do not support the conclusion that he lacked the mental capacity to withdraw the Application. He has been an active participant in the proceedings and has communicated his position on various issues in a logical and professional manner. The evidence presented by the respondent indicates that the applicant considered his decision to withdraw Application 2011-10019-I in light of his health concerns. The applicant’s actual request indicates that he was able to make requests regarding the conduct of the hearing by asking for mediation and accommodation of his disability. These actions indicate that the applicant continued to be able to make and understand decision regarding this litigation.

33In these circumstances, I find that the applicant has not established that he was incapacitated when he filed the Request to Withdraw Application 2011-10019-I and has not established the criteria for Reconsideration under Rules 26.5(a) and 26.5(d).

Order

34The Tribunal orders as follows:

1. The applicant’s request that I recuse myself is dismissed, and
2. The applicant’s request to re-open Application 2011-10019-I is dismissed.

35In light of these orders it is unnecessary to determine whether all or part of Application 2011-10019-I is untimely.

36Within 14 days of the date of this Interim Decision, the parties are directed to communicate with each other and provide the Tribunal with dates on which they are both available on three consecutive days to continue the hearing of this matter.