Cameron v. Ontario (Training, Colleges and Universities), 2013 HRTO 566

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Cameron

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Training, Colleges and Universities

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: April 8, 2013

Citation: 2013 HRTO 566

Indexed as: Cameron v. Ontario (Training, Colleges and Universities)

1In a Case Assessment Direction issued on March 8, 2013, I alerted the applicant to the fact that he had failed to comply with his obligations under Rules 16 and 17 of the Tribunal’s Rules of Procedure.

2The applicant was pointed again to the requirements of these Rules which were first elaborated in the Notice of Confirmation of Hearing as follows:

Unless otherwise directed by the HRTO, not later than February 26, 2013 you must deliver to every other party and file with the HRTO:

• a list of all documents you intends to rely on at the hearing;

• a copy of each document on that list for the HRTO;

• a copy of every document on that list for each party or confirmation every document has already been provided to the other parties;

• a witness list that includes the name of every witness, including expert witnesses, you intend to present to the HRTO;

• a statement summarizing the expected evidence of each witness;

• where you intend to rely on the evidence of a proposed expert witness, a copy of the expert’s written report or a full summary of the expert’s proposed evidence and the expert’s curriculum vitae;

• the Statement of Delivery of the Rule 16.2 list and documents on the other parties.

3In response to these Directions the applicant responded on March 15, 2013. He indicated only that he would be calling four witnesses and would be relying on the submissions already filed. The applicant identified as his potential witnesses, Joyce Burke, RNA; Dr. Joseph Falletta, M.D., Lorrie Corby and Melanie Herbin.

4In a further CAD issued to the parties on March 15, 2013, I indicated to the parties that the applicant had not complied with the Tribunal’s directions as it remained unclear what, if any, documents the applicant intended to rely upon and he had not provided a summary of his proposed witness’ evidence. I pointed out that in the absence of a summary of the expected evidence of his proposed witnesses it would be impossible to determine whether or not they have evidence that the Tribunal would entertain. I pointed out that two of the witnesses are health care professionals and there has to date been no disclosure of any medical documentation. I also noted that that one of the applicant’s proposed witnesses is counsel for the respondent. I made the following further directions:

a. The applicant will deliver and file a list of the documents he intends to rely on at the hearing before 12:00 Noon Friday March 22^nd 2013 ;

b. The applicant will deliver and file a summary of the expected evidence of any witness he proposes to call at the hearing before 12:00 Noon Friday March 22^nd 2013;

5The applicant did not comply with this CAD causing me to issue a further CAD on March 22, 2013. In this CAD I noted that the applicant was not in compliance with my prior Directions and consequently it was not clear what evidence he would be relying upon. In particular no documents had been filed by the applicant and it was not clear whether the witnesses the applicant proposed calling had evidence necessary to the fair, just and expeditious adjudication of the case.

6I also directed, in light of the applicant’s failure to comply with my Directions, that he would not be permitted to call Ms. Herbin as a witness at the hearing. I noted at that stage that it was not at all clear how counsel for the respondent would have any evidence in respect of the events at issue in the case which relate primarily to a series of communications between the applicant and officials of the respondent in October 2010. I now note from a review of the Application that Ms. Herbin is not mentioned in the Application (Form 1) nor is she listed as a potential witness by the applicant in his materials. I also expressed concern that the applicant’s proposed summonsing of Ms. Herbin would be disruptive of the hearing process because if she were a proper witness, the respondent would have to retain new counsel which might require the adjournment of the hearing. In all of the circumstances I directed that Ms. Herbin would not be required to give evidence at the hearing. I made the following Directions in the March 22, 2013 CAD:

a. Ms Herbin will not be required to give evidence at the hearing of this case;

b. The applicant shall deliver and file a list of the documents he intends to rely on at the hearing before 12:00 Noon, Tuesday April 2, 2013 failing which the applicant may be deemed to have abandoned this Application;

c. The applicant shall deliver and file a summary of the expected evidence of any witness (other than Ms. Herbin) that he proposes to call at the hearing before 12:00 Noon Tuesday April 2nd 2013.

7Little more than an hour after the release of this CAD the applicant responded to it as follows:

Please be advised that given your actions of prejudicing this hearing by attempting to limit and pick and choose my witnesses as an applicant so evidence can be heard, that I am requesting your immediate removal from this hearing.

First, I made this Tribunal aware that i have contacted the Human Rights Legal Clinic on March 15th, 2013 and you have failed to consider this fact. This hearing will not proceed until I have had my meeting this clinic and retained their services. They are indicating that it will take another week to have that meeting.

In addition, you have misrepresented and lied in you CAD of March 15th, 2013 and today March 22nd, 2013 as to what I have wrote in terms of my witnesses.

I have specified that the following witnesses will be called.

-Joyce Burke RNA – who will testify as to the medical condition that I faced when I enrolled in the Second Career training program.

-Dr. Joseph Falletta MD – my family doctor who will testify as to the medical condition that I faced when I enrolled in the Second Career training program and present medical information related to my surgery during that period.

-Lorrie Corby – will be properly examined by legal counsel and testify as to the events and statements she made to me in the months of August 2010 through to March 2011.

-Melanie Herbin - will be properly examined and testify as to the events and statements she made to me in the months of August 2010 through to March 2011.

-Robert F. Cameron – I will gladly testify and be examined by my legal counsel as to the statements made by Lorrie Corby, the actions of this civil servants in denying my fundament rights to services under the Ontario Human Rights code and to the subsequent actions of Melanie Herbin, LLB in denying me services in contravention of the Ontario Human Rights Code.

You do not have the right as an adjudicator to strike from the list ANY individual claiming government priviledge and that they have nothing to offer prejudicing their testimony at this tribunal. It is clear that YOU as an adjudicator are prejudicing this hearing and my rights by trying to pick and choose which individuals are allowed to be cross examined or testify at this hearing.

This is all appellable actions to the Divisional Court of Ontario. You are not above the laws of Ontario.

8On April 2, 2013, the applicant sent an email to the Tribunal and the respondent complaining that the submissions received from the respondent that day were unreadable and accused the respondent of taking away his rights under the Code.

9On April 3, 2013, further correspondence from the applicant was received from the Tribunal. In the email received by the Tribunal at approximately 11:10 a.m., the applicant indicates for the first time that he had not received notice of the hearing scheduled for April 12, 2013, and had only learned of the date when he received the respondent’s submissions of April 2, 2013. In the same correspondence, the applicant also sought an adjournment of the hearing on the basis that he had not received notice of it and will be out of the country on the hearing date. He also claims a constitutional right to counsel and will not be able to secure representation for that date. On April 4, 2013, the applicant reiterated his request that the hearing be adjourned while he retains and provides instruction to a representative.

10The actions of the applicant and his communications with the Tribunal on March 22 and April 3, 2013 raise a number of issues.

Reasonable Apprehension of Bias

11The applicant has suggested, more than once, that I and the Tribunal are biased in favour of the respondent. See 2011 HRTO 2240. The claim in his correspondence of March 22, 2013 (reiterated in the April 3, 2013 email referred to earlier) merely repeats earlier unsubstantiated claims of what appears to be an allegation of bias on my part and the Tribunal generally. These charges have been levelled at myself as well as staff of the Tribunal who have handled this file.

12It is a fundamental requirement of procedural fairness that an adjudicator be free of any reasonable apprehension of bias. The legal principles to be considered are well established and are captured in this often cited passage from Committee for Justice and Liberty v. National Energy Board, [1976] 1. S.C.R. 369 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 would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it more likely than not that [the decision maker] whether consciously or unconsciously, would not decide fairly.

13The law is also clear that the onus rests with the party making the claim of bias to establish it.

14Having regard to the above test, I conclude that there is no basis to recuse myself from this Application as the applicant has offered no basis which a reasonable and right-minded person, applying themselves to the question, could possibly conclude that there has been any bias in the directions that have been made in this case to date. In making the request, however, the applicant has made completely baseless assertions which need to be addressed. The applicant complains that I am biased in favour of the respondent because I have made directions with respect to the witnesses he may call. In particular I have concluded that he should not be allowed to summons counsel for the respondent to give evidence. Contrary to the applicant’s assertions, the Tribunal does have the power, indeed the obligation, to control its process to ensure the fair, just and expeditious adjudication of the applications before it. See Rules 18, 1.6 and 1.7 of the Tribunal’s Rules of Procedure. The Tribunal has the express power in Rule 1.7(n) to prohibit a party from calling a witness where it is appropriate to do so. Rule 1.7 (v.1) authorizes the Tribunal to make such orders or give such directions as are necessary to prevent abuse of its process. One of the situations where it may be appropriate to direct that witness will not be heard from is where there is no reasonable basis to believe that the proposed witness has any relevant evidence for the Tribunal to consider. Another is where a party has failed to identify a witness and/or failed to provide an adequate summary of that witness’s evidence (see Rule 17.3).

15Based on the very limited information provided by the applicant it is not at all clear why at least two of the witnesses he has listed are necessary to the fair, just and expeditious adjudication of this Application. In particular the applicant has provided no reason to believe that Ms. Herbin has any evidence to offer the Tribunal. She is nowhere mentioned in the Application and does not appear to have been involved in the dispute between the parties in October 2010. I note at this stage that the applicant suggests that there were interactions with her through the winter months of 2010/2011 but does not disclose how such interactions with Ms. Herbin, if indeed there were any, relate to the dispute in October 2010. Ms. Herbin will not be required to give evidence at the hearing and my directions in that regard are not an indication of bias on my part.

16The applicant also asserts that I have lied and misrepresented what he has said about his witnesses. These are serious, yet completely unexplained and unsubstantiated allegations. To the extent these allegations may possibly relate to my characterization of his compliance with the Tribunal’s Rules and my Directions with respect to disclosure of his witness list and documents, they are unsubstantiated. Contrary to this claim the applicant had not complied with the Tribunal’s Rules with respect to disclosure in anticipation of the hearing in any fashion until directed to do so in a CAD issued on March 8, 2013, and then only incompletely on March 15, 2013, resulting in the need to issue further CADs on March 15 and 22, 2013. At this stage he remains non-compliant with the Tribunal’s Directions in that he has failed to provide the documents he intends to rely upon or if he has already submitted materials as he claims, a list of the documents he intends to rely upon. I note again that the applicant has proposed to call two medical witnesses but has not provided any medical documents or an even remotely adequate summary of their evidence. As there is no basis to the applicant’s claim that I lied and misrepresented anything with respect to his degree of compliance with the Tribunal’s Rules and my Directions, these assertions provide no basis to conclude that there has been any bias in my decision making in this case.

17The applicant asserts that he has previously advised the Tribunal about his attempts to obtain legal representation and I did not take this into account. The applicant makes a cryptic reference to waiting for a meeting with the Human Rights Legal Support Centre in his email of March 15, 2013. It is not clear how this information might have been taken into account in the circumstances. Contrary to the applicant’s suggestion now that the Tribunal process must stop because he alerted us to the fact that he may be seeking representation, this is not the case.

18The hearing date for this case was set in September 2011. I will have more to say about his below but I note at this stage that I am not satisfied that the applicant has not received timely Notice of the hearing date as he has now claimed. Once a date is set, the parties are expected to act with dispatch and ensure that they are prepared for the hearing. If a party wishes to seek representation for a hearing they are expected to act promptly to secure that representation and to ensure that their representative is available for the hearing date that has been set. A party’s wish to have legal representation does not suspend the Tribunal’s processes. Notwithstanding the applicant’s failure to seek representation in a timely fashion, if he had required further time to prepare he could have made a request for an extension of time, copied to the respondent, and it would have been considered. No such request was made of the Tribunal. In any case this complaint of the applicant even if supported by any facts does not constitute evidence of bias in favour of the respondent.

19For these reasons and considering the test set out in Committee for Justice and Liberty v. National Energy Board above, I find that there is no basis at all to the applicant’s claims that I have acted inappropriately or evidenced any bias in favour of the respondent. Accordingly there is no basis for his request that I remove myself from this case.

The Applicant’s Request to Adjourn

20As indicated the applicant seeks an adjournment of the hearing scheduled for April 12, 2013. He claims that he did not receive the Notice of Confirmation of Hearing (Notice) delivered to him by mail on September 20, 2012. He claims that he will be out of the country on the day of the hearing and will not be able to attend. I observe that this is very similar to the request to adjourn made at the outset of the hearing in December 2011. See 2011 HRTO 2240.

21I do not accept the applicant’s claim that he had not received timely Notice of the hearing. I note that the Notice was sent by mail and not returned to the Tribunal. I note that while the Tribunal often communicates with the parties by email and has done so in this case, pursuant to directions previously made by me formal communications with respect to the scheduling of events was to be done my regular mail in addition to any other method because of alleged difficulties the applicant had previously had in sending and receiving emails. I also note that while the March 8, 2013 CAD did not specifically reference the April 12, 2013 hearing date it made express reference to the fact that the applicant had failed to file his materials as required 45 days prior to the hearing. It also reminded the applicant that this information would have been provided to him in the Notice of Confirmation of Hearing. If the applicant was unaware at that point that the Notice had been issued it is not clear why he would not have raised the issue at that time.

22The applicant was reminded again of his need to take steps to prepare for the hearing in the March 15, 2013 CAD. The Notice was referenced again in this CAD but the applicant did not make enquires about it. Finally the March 22, 2013 CAD warns that applicant that the hearing was to begin in three weeks from that date and that the respondent should have had his materials on or before February 26, 2013. Although the applicant had much to say about the March 15 and 22, 2013 CADs, he expressed no concern about not having been given Notice of the hearing he clearly must have understood to be imminent.

23Based on all of the above, I am not at all satisfied that the applicant did not have timely Notice of the hearing. Accordingly the applicant’s request for an adjournment on that basis is denied.

24The applicant also claims that he has an absolute right to counsel and that the hearing cannot proceed until he has obtained representation. While the applicant has a right to retain representation, his failure to do so in a timely manner does not require that the Tribunal’s process be suspended. As indicated earlier, a party who wishes to have representation for the hearing is required to act with dispatch and retain a representative who is available for the hearing dates that have been scheduled. The applicant appears to have not made any efforts to seek counsel until March 15, 2013 when he claims to have contacted the Human Rights Legal Support Centre. In these circumstances I am not satisfied that it would be fair, just or expeditious for a hearing date scheduled in September 2012 to be adjourned.

25For all of these reasons the adjournment request is denied.

Other Matters

26In its submissions in response to the issues raised in the applicant’s March 22, 2013 correspondence, the respondent requests that the Application be dismissed for non-compliance with my Directions in the CADs of March 8, 15 and 22, 2013. While I agree that the applicant has been largely non-compliant with my Directions, it seems to me that to deem him to have abandoned the Application and dismiss it on that basis is not appropriate in all of the circumstances. However, pursuant to my authority to ensure the fair just and expeditious adjudication of this Application and to prevent an abuse of the Tribunal’s process the applicant’s failure to comply with the Tribunal’s Rules and Directions must have some consequences. rections.

27The hearing is scheduled to take place on Friday April 12, 2013. As of this moment the applicant remains largely non-compliant with my Directions and the Tribunal’s Rules. In his March 22, 2013 submissions the applicant provided very brief summaries of the evidence of his witnesses. In my CAD of March 8, 2013, I advised the applicant of the Tribunal’s expectations with respect to the content of a summary of a witness’ evidence which was first set out in C.C. v. Wal-Mart Canada Inc., 2010 HRTO 426 at para. 7:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

28The summaries the applicant provided on March 22, 2013 are not adequate. They are not detailed and provide no particulars of the evidence each witness is expected to give. Of particular concern is the fact that two of the proposed witnesses are medical witnesses for whom the applicant has provided no details with respect to their expected evidence and no documents that they will of necessity be required to rely on related to the applicant’s alleged medical condition in the Fall of 2010.

29I have already directed that counsel for the respondent will not be required to give evidence as there is no reasonable basis to believe that this proposed witness has any relevant evidence to give with respect to the issues in dispute. Nothing in the applicant’s subsequent submissions changes this conclusion. This is particularly troubling given my raising this concern from the outset and yet the applicant apparently refuses to disclose what evidence counsel might have to offer related to the issues in dispute.

Abuse of Process

30As discussed above the applicant has made serious but completely unsubstantiated allegations of bias on my part, including an allegation that I have lied and misrepresented some aspect of his participation in this proceeding. The applicant has also suggested that counsel for the respondent has acted inappropriately in her representation of her client. These allegations are serious and are without foundation. I am also concerned about the tone that the applicant takes in his communications with the Tribunal and the respondent; it is in my view not respectful of the parties or the process.

31Morevoer In correspondence with the Tribunal received on April 5, 2013 the applicant has made highly inappropriate comments about counsel for the respondent and an employee of the reaspondent.

32I am also concerned as indicated above about the applicant’s claims in support of his adjournment request and the alleged non-reciept of the Notice as described above.

33The applicant also remains to a significant degree non-compliant with my Directions above to provide disclosure of his evidence and the documents upon which he intends to rely.

34The applicant has previously been admonished about his conduct in these proceedings. In 2011 HRTO 2240, I made the following remarks:

The applicant’s behaviour in the hearing was less than acceptable. He appeared to be raising his voice and despite being admonished several times continued to do so. He spoke over and interrupted both counsel for the respondent and myself, despite being admonished several times for this. As indicated above he repeatedly suggested that the Tribunal was being directed by the Attorney General and the “government” in an effort to manipulate the process in the respondent’s favour. He accused the respondent of lying without any basis.

Such conduct is not conducive to the fair, just and expeditious adjudication of these cases. The Tribunal has commented on the responsibilities of parties appearing before it. In Ouwroulis v. New Locomotion, 2009 HRTO 335 at paras. 4-7, the Tribunal stated as follows:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules.

In Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913 at paras. 8-9, the Tribunal stated as follows:

Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal’s process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.

It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal’s process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.

As I indicated to the applicant at the hearing the conduct such as I have described above has been found to constitute an abuse of the Tribunal’s process, resulting in dismissal of an Application: see Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667, and Vizcaya v. University of Toronto, 2010 HRTO 916. See also Nouraghighi v. Toronto Catholic District School Board, 2009 HRTO 2085.

As discussed in these cases above the Tribunal has the authority pursuant to its Rules and s. 34(1) of the Statutory Powers Procedure Act R.S.O. 1990 c. S.22, to make such orders as are necessary to prevent an abuse of process, including dismissing an Application where it is appropriate to do so as indicated above. In order to ensure the orderly adjudication of this Application I make the following Directions at this stage of the proceeding:

a. The applicant’s request that I recuse myself on the basis of bias or reasonable apprehension of bias is denied. My previous order that the applicant will not be permitted to call Ms. Herbin as a witness at the hearing is confirmed.

b. The adjournment Request of the applicant is denied. The hearing will proceed on April 12, 2013 at 9:30 a.m. in Toronto;

c. The respondent’s request that the Application be dismissed as abandoned is denied. The hearing will proceed on April 12, 2013 at 9:30 a.m. in Toronto;

35The hearing date of April 12, 2013, is cancelled and converted to a telephone conference call to hear the parties submissions on why this Application should not be dismissed as abuse of process for the reasons discussed above in this Interim Decision. I am not seized of this case.