HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Haruyo Taucar
Applicant
-and-
The University of Western Ontario, Kenneth Swan and Kenneth P. Swan Arbitration Ltd.
Respondents
RECONSIDERATION DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Taucar v. The University of Western Ontario
WRITTEN SUBMISSIONS
Haruyo Taucar, Applicant
Christopher E. Taucar, Counsel
Introduction
1The applicant seeks reconsideration of the Decision, 2013 HRTO 597, dismissing her Application. In her Application, the applicant alleged that Kenneth Swan and Kenneth P. Swan Arbitration Ltd. (the “Swan respondents”) and the University of Western Ontario (“University”) discriminated against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, she alleged that Mr. Swan discriminated against her by issuing a report in which he found that there was insufficient evidence to support the complaint of discrimination and harassment she had filed under the discrimination and harassment provisions of her collective agreement. The applicant also alleged that the University discriminated against her by accepting the allegedly discriminatory conclusions in Mr. Swan’s report. In the Request for Reconsideration (“Request”), the applicant’s counsel submits that the Tribunal made fundamental errors in its analysis that justify the exceptional remedy of reconsideration. For the reasons that follow, I find that the applicant has not met her burden of establishing any of the threshold criteria justifying reconsideration.
2Two points should be made at the outset. First, it is important to note that, in support of his Request, the applicant’s counsel essentially repeats arguments made orally and in writing before the Tribunal. He also seeks to rely upon cases already filed with, and considered by, the Tribunal. As the Tribunal has noted in several cases, a request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered by the Tribunal in its initial decision. See, for example, Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 (“Sigrist and Carson”). Notwithstanding the fact that the applicant’s counsel is in essence attempting to reargue his case, and the applicant’s Request could be dismissed on this basis, I address the main submissions set out in the Request below.
3Second, at several points in the Request, the applicant’s counsel claims that I “ignored” key arguments, evidence and/or authorities submitted by the applicant. Interestingly, this is also one of the claims he made against Mr. Swan in a related judicial review application and before the Tribunal. It seems that the applicant’s counsel interprets a disagreement with his views as a sign that his views were ignored rather than simply not accepted. As I noted in my Decision, the materials submitted by the applicant’s counsel were voluminous. As the courts have noted, a tribunal does not have to refer to every piece of evidence or set out every finding or conclusion, no matter how subordinate, in the process of arriving at its decision. See, for example, Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 16 and Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670 at para. 29.
4For the reasons set out below, I find that the applicant has not established the existence of any of the criteria in Rule 26.5 of the Tribunals Rules of Procedure (“Rules”) that would lead to reconsideration of my Decision.
background
5In the Decision, I found as follows:
a. In the circumstances of this case, the Swan respondents were immune from the application of the Code by operation of the doctrine of adjudicative immunity.
b. The applicant’s claims against the University were dismissed as having no reasonable prospect of success.
THE REQUEST FOR RECONSIDERATION
6The reasons provided in support of the Request for Reconsideration can be summarized as follows:
a. The Decision is not in accordance with established jurisprudence;
b. The Decision is contrary to fundamental constitutional principles and the Code;
c. The Decision erred in finding that the applicant’s claim against the University stood no reasonable prospect of success; and
d. Other factors exist that outweigh the public interest in the finality of the Tribunal’s Decision.
Applicable Principles
7The circumstances in which a Request for Reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s Rules:
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.
Alleged Inconsistency with Established Jurisprudence
8The applicant submits that the Decision is not in accordance with established jurisprudence pertaining to the nature and limits of adjudicative immunity.
Distinction Between Judges and Quasi-Judicial Decision-Makers
9According to the applicant’s counsel, I erred in applying cases relating to judges to the circumstances of this case. In this respect, the applicant’s counsel repeats arguments he made in the hearing before me in which he sought to distinguish between the immunity granted to judges and the immunity granted to quasi-judicial decision makers.
10I am not convinced that any findings made in the Decision are in conflict with established jurisprudence. In my view, the real basis for the applicant’s Request on this point is not that my decision is inconsistent with established jurisprudence, but instead that it is consistent with the Tribunal’s established jurisprudence. In the hearing, I asked the applicant’s counsel whether he was asking that I refuse to follow the Tribunal’s extensive case law that has applied the doctrine of adjudicative immunity to quasi-judicial decision-makers. He confirmed that he was. Ultimately, I concluded that I agreed with the analysis consistently applied in the Tribunal’s case law that the doctrine of adjudicative immunity applies to exempt quasi-judicial decision-makers from the application of the Code due to their functional comparability to judges.
11I note that this same approach has also been followed by courts. See, for example, Agnew v. Ontario Association of Architects, (1987), 1987 CanLII 4030 (ON HCJ), 64 O.R. (2d) 8 (Div. Ct.) and Ermina v. Canada (Minister of Citizenship and Immigration, (1998), 1998 CanLII 8969 (FC), 167 D.L.R. (4th) 764 (F.C.T.D.).
12As a result, I am not convinced that any findings made in the Decision in regards to this issue are in conflict with established jurisprudence on the application of adjudicative immunity to quasi-judicial decision-makers.
Alleged Exceptions to Doctrine of Adjudicative Immunity
13The applicant’s counsel claims that the Decision contradicts and/or does not consider or mention, binding and long-established jurisprudence that has established that adjudicative immunity is inapplicable where a decision-maker has knowingly exceeded his or her jurisdiction or has acted in bad faith. He also alleges that the Decision did not properly apply these exceptions to the facts of this case.
14Although I reviewed and considered all of the authorities cited by the applicant, in my decision, I focused on the decisions I considered to be most relevant and the most likely to support the applicant’s submissions. Following my review of all the cases submitted by the parties, I concluded that, based on two recent Superior Court of Justice cases, it is doubtful that the exceptions to the doctrine of adjudicative immunity urged by the applicant form part of the law in Ontario. I went on to find that, even if the two exceptions sought to be relied upon by the applicant were part of Ontario law, neither would apply in the circumstances of this case.
15I cannot conclude that there is any basis for the applicant’s claim that my Decision contradicts any of the decisions cited in the Applicant’s Request, most of which either predate the cases cited in my Decision or are decisions of lower courts.
Allegations re: Knowingly Exceeding Jurisdiction
16Counsel for the applicant claims that I “ignored all of the evidence” which supported the applicant’s position that Mr. Swan knowingly exceeded his jurisdiction. As noted above I considered all of the applicant’s evidence, submissions and authorities but ultimately did not find in the applicant’s favour. There is nothing new in the applicant’s Request that would cause me to reconsider my Decision on this point.
Allegations re: Acting in Bad Faith
17The applicant argues that I failed to provide adequate reasons for my finding that there was no evidence that Mr. Swan acted in bad faith. The applicant takes issue with the fact that I summarized her allegations of bad faith in my Decision rather than reproducing the full statement of her allegations contained in the intended amendment to her Application. I do not see how this would amount to a failure to provide adequate reasons. In any event, I did not base my decision on a lack of particulars but on the fact that all of the actions that the applicant alleged to constitute bad faith were in fact examples of alleged procedural fairness or errors of law. As the Tribunal has found, the doctrine of adjudicative immunity applies even in cases where an applicant alleges that an administrative decision-maker breached natural justice.
18Accordingly, I cannot conclude that there is any basis to the applicant’s claim that I misapplied the bad faith exception or failed to provide adequate reasons to support my conclusions on this issue.
Submissions re: Other Types of Immunity
19The applicant’s counsel submits that I erred by not addressing his submissions and authorities with respect to the limitations placed on other types of immunity such as prosecutorial immunity. I did not have to address these submissions because the matter before me related exclusively to the issue of adjudicative immunity. As there were decisions on point, in particular recent decisions of the Ontario Superior Court, there was no reason to consider any analogies to any other forms of immunity.
20For all the above reasons, I am satisfied that the applicant’s submissions on this Request do not establish that my Decision conflicts with established jurisprudence with respect to adjudicative immunity.
Alleged Inconsistency with Constitutional Principles and Code
21The submissions of the applicant’s counsel on this point simply repeat the submissions he made in his written submissions filed in advance of the hearing and in his oral submissions at the hearing. I provided my reasons for declining to accept these submissions at paras. 59-62 of my Decision. The applicant has not raised any new issue or argument not already addressed in my Decision. Therefore, I cannot conclude that the applicant’s submissions on this point provide a basis for reconsideration of the Decision.
Alleged Errors re: Claim Against University
22Counsel for the applicant submits that I erred in finding that his claim against the University stood no reasonable prospect of success. He advances numerous arguments in support of this submission which I summarize and address briefly below.
23First, counsel for the applicant argues that my Decision “completely ignored” vital expert evidence from two proposed experts whose statements the applicant filed with the Tribunal. Rather than ignoring the evidence of these two experts, I advised the parties that I was prepared to consider these statements for the purposes of the summary hearing. Based on the evidence before me, I found that the applicant’s claim against the University stood no reasonable chance of success. The applicant’s counsel has not raised any new submissions or evidence on this point that were not already addressed in the Decision.
24Second, counsel for the applicant makes a number of allegations aimed at suggesting that I treated the Divisional Court’s decision in the related judicial review application as in effect being binding in this case or giving rise to res judicata. I did not treat the Court’s judicial review decision as binding with respect to the issues before me. Instead, I found that the Court’s comments in the decision were significant and highly relevant to the issue of whether the applicant’s claim against the University stood a reasonable prospect of success.
25Third, the applicant’s counsel argues that my decision was contrary to the Tribunal’s own jurisprudence as, in an Interim Decision, 2011 HRTO 550, the Tribunal decided to defer, rather than dismiss, the Application pending the conclusion of the judicial review proceeding. One of the reasons the Tribunal gave for the deferral in 2011 HRTO 550 was the fact that judicial review application contained “facts and allegations that were identical to the allegations set out in [the Tribunal’s] proceedings”. The Tribunal also noted that “[t]he Orders sought through the judicial review reflect some of the same remedies sought by the applicant in the current Applications.” As a result, my Decision was entirely consistent with the Interim Decision by acknowledging the overlap in issues in both proceedings.
Alleged Factors Outweighing Public Interest in Finality of Decision
26The applicant alleges that, during the hearing, I reversed a ruling that I made in the case management meeting on January 4, 2013. In particular, she appears to allege that I erred in accepting the respondent’s sur-reply factum despite the fact that the applicant claimed that it addressed matters that were not technically “new matters”. The applicant also claims that it was improper for me to “heavily rel[y]” upon the contents of the sur-reply factum in my Decision.
27The only matters raised in the sur-reply factum that I relied upon in the Decision were the Ontario Superior Court of Justice’s decisions in Tsai v. Klug and Baryluk. In those decisions, the Court held that the two exceptions to the doctrine of adjudicative immunity urged by the applicant did not form part of the law in Ontario.
28I cannot conclude that it was improper for me to rely upon those decisions. The Swan respondents properly called my attention to these two relevant decisions which the applicant’s counsel had failed to cite or mention in his submissions. Moreover, the decisions form part of the law of Ontario and both the applicant and the Swan respondents had an opportunity to make submissions in relation to them. Therefore, I do not see how my reliance upon them was improper.
Alleged Bias
29Relying upon many of the same arguments summarized above, the applicant’s counsel argues that there is a reasonable apprehension of bias in this case. For the same reasons that I cannot conclude that these arguments justify a reconsideration of the Decision, in my view, they do not support an allegation of bias. Moreover, the applicant did not raise any concerns regarding a reasonable apprehension of bias in the hearing. The issues he now raises as signs of a reasonable apprehension of bias appear to relate to his disagreement with my conclusions rather than with the way in which I conducted the hearing.
30Finally, counsel for the applicant submitted that I should not be assigned to determine this Request for Reconsideration due to structural bias. He submitted that, if I was assigned to determine the Request, I would be sitting in judgment of my own case. Notwithstanding these submissions, the applicant’s Request was assigned to me to determine in accordance with the Tribunal’s Practice Direction, which provides that requests for reconsideration are typically made by the member who made the original decision. Significantly, this procedure was affirmed by the Divisional Court in Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 at para. 17, where the Court stated:
The mere fact that an adjudicator determines a request for reconsideration of his or her own decision does not, in and of itself, create a reasonable apprehension of bias in the context of this legislative scheme.
A reconsideration is not an appeal or a hearing de novo. More importantly perhaps, there is no right to have a decision reconsidered. Under s.45.7(2) of the Code “the Tribunal may reconsider its decision” but is not bound to do so. The original decision maker may be in the best position to know whether a reconsideration request raises new issues or submissions.
31For all the reasons detailed above, I find that the applicant has not established the existence of any of the criteria in Rule 26.5 that would lead to reconsideration of the Tribunal’s Decision. Therefore, the Request for Reconsideration is denied.
Dated at Toronto, this 31st day of May, 2013.
“Signed by”
Jo-Anne Pickel
Vice-chair```