HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elizabeth Balanyk
Applicant
-and-
Niagara Hospitality Hotels Inc.
Respondent
INTERIM DECISION
Adjudicator: Jay Sengupta
Indexed as: Balanyk v. Niagara Hospitality Hotels Inc.
APPEARANCES
Elizabeth Balanyk, Applicant
Self-represented
Niagara Hospitality Hotels Inc., Respondent
William Hayter, Counsel
Introduction
1This is an Application filed under section 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 disability and age. This Interim Decision confirms and provides reasons for a number of interim oral rulings made during the last three half day hearing blocks held in this matter.
2For the first two half days of hearing held in this matter, the applicant was represented by a licensed paralegal. On October 21, 2014, the respondent and the Tribunal were informed that the applicant was no longer represented by that paralegal. The applicant sought an adjournment of the half day continuation dates scheduled for October 22 and 28, November 18 and December 1, 2014 and asked to postpone the balance of the proceedings for 90 days.
3Given the circumstances, the Tribunal adjourned the hearing dates scheduled for October 22 and 28, 2014 in order to allow the applicant an opportunity to retain and instruct new counsel and left in place the continuation dates scheduled for November 18 and December 1, 2014 and made them peremptory to the applicant.
4In advance of the November 18th hearing date, the applicant made a number of requests, such as the assignment of a porter to assist her in carrying her belongings within the hearing location, recording of the hearing, a request that her former paralegal be ordered to provide her with a copy of her file and a summons for the personal respondent who had been removed as a personal respondent on the first date of hearing. On the 18th of November, she also made a request that I recuse myself. The applicant also renewed her request that I provide reasons for my ruling on the first day of hearing to remove the personal respondent as a respondent in this Application.
5The half day hearing on November 18th, 2014, was, as a result, devoted to dealing with these requests. At the close of the hearing, I indicated that I would issue an Interim Decision confirming my rulings on the issues listed above in advance of the next hearing date on December 1, 2014.
REMOVAL OF PERSONAL RESPONDENT
6The request to remove Vince Kerrio as a personal respondent was granted on the first day of hearing.
7Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “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”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
8The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”) at para. 5:
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
9The respondent company submitted that there is nothing in the alleged conduct of the personally named respondent that warrants the continuation of this proceeding against him personally. It points to the fact that an organizational respondent is named in the proceedings that is also alleged to be liable for the same conduct, there is no issue raised as to the organization’s deemed or vicarious liability, should liability be established, no issue regarding the respondent’s ability to respond to or remedy any alleged infringement and no prejudice to any party as a result of removal of the personal respondent. In short, the respondent company argued the factors in Persaud favour removal.
10The applicant argued that the personal respondent should remain as a party as he had lured her away from another company to work for his business and that the ultimate decision not to bring her back into the workplace was his as he owns the business. She argued that compelling reasons exist to continue the process with him as a named respondent.
11I was and am persuaded that the personal respondent, Vince Kerrio, should be removed as a party. In my view, the factors in Persaud favour removal because his alleged conduct is not such that it would be appropriate to award a remedy specifically against him if an infringement is found, notwithstanding the applicant’s assertion that compelling reasons exist to have him remain as a named party. There is no indication that he will not be made available to provide evidence necessary to the adjudication of this dispute if he is removed as a party to this proceeding. There is no compelling reason to continue this matter with him named as a party given the assurance of the corporate respondent.
12Accordingly, the personal respondent, Vince Kerrio, was removed as a party to these proceedings and the style of cause amended accordingly.
REQUEST FOR SUMMONS
13As indicated above, the applicant takes the position that Vince Kerrio has relevant information regarding the issues before me. She argues that it is necessary that I hear from him as he makes all the decisions as the owner of the respondent company.
14The respondent opposes the request for a summons to compel the attendance of Vince Kerrio, arguing that he was not named as a witness by either side in the proceeding and because he has been removed as a personal respondent, the applicant is embarking on a vexatious course of conduct by seeking to compel his attendance.
15The applicant argues that medical information was sent directly to Vince Kerrio by her physician and that she believes he played an active role in the decisions made concerning her employment.
16The applicant will be permitted to call Vince Kerrio as a witness. Given that there is presently only one half day scheduled and the applicant’s cross examination is due to begin, it is unlikely that the Tribunal will be in a position to hear from Mr. Kerrio on December 1, 2014. Once additional dates have been scheduled, a summons form will be issued by the Tribunal.
REQUEST FOR RECUSAL
17During the third day of hearing the applicant filed a request that I recuse myself and sought an order that the matter be heard by another adjudicator. She based her request on the following reasons:
Wants to know who created the mediation-adjudication agreement
When mediation-adjudication had been attempted, respondent counsel and his articling student did not sign the mediation adjudication agreement although the parties and the applicant’s representative did;
The hearing adjudicator who assisted the parties in the mediation-adjudication agreement did not sign the agreement;
That had she known of the above, she would not have signed the agreement herself and that she was pressured into signing it;
During the mediation portion of the process, the hearing adjudicator received access to privileged and confidential information that will now make it impossible to act as an unbiased adjudicator, and that I have demonstrated bias during the proceedings thus far;
The guide to mediation on the Tribunal’s website says the same person will not act as both mediator and adjudicator on the same matter;
18The respondent argues that paragraph 4 of the mediation-adjudication agreement is clear and prevents the parties from seeking to have a hearing adjudicator recuse themselves as a result of the parties participating in mediation-adjudication. It reads as follows:
We understand that a Tribunal member will conduct the mediation. We agree that if the parties are unable to resolve this 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 in the mediation.
19The respondent also argues that the parties are required to sign the agreement and that as members or licensees of the Law Society of Upper Canada, counsel and the articling student are bound by Rules of Professional Conduct that mirror their obligations under the mediation-adjudication agreement. The respondent points out that the applicant was represented by a paralegal during the process and that she signed the document last and was aware of who had signed and who had not. The respondent submits that the section of the mediation guide referenced by the applicant deals with mediations and not mediation-adjudications. Finally, the respondent submits that from its perspective, there has been no demonstration of bias.
20The 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.”
21The 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, above, 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.
22Prior to the mediation session, the parties executed a Mediation/Adjudication Agreement, which included paragraph 4 (see above). 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.
23In 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.
24Accordingly, I ruled in the course of the third half-day of hearing that I would not recuse myself.
ORDER FOR A COPY OF HER APPLICATION FILE
25The applicant has requested that the Tribunal order her former representative to provide her with hard copies of all materials in her file as well as copies of case law and submissions that she has prepared. The applicant also sought to have the respondent provide her with copies of all materials filed by it in this litigation.
26During the hearing, she was given an opportunity to confirm that she already had copies of all documents filed by the respondent in this matter. In light of this and in light of the communication received from the applicant’s former representative confirming that she has provided copies of all the pleadings and filings in this case to the applicant in either electronic or paper form, I decline to issue any direction.
REQUEST FOR PORTER AND RECORDING OF HEARING
27Just prior to the third day of hearing, the applicant sent an email to the Tribunal asking that a “Tribunal appointed porter” be made available to her to carry her bags and materials while she was at the hearing.
28I ruled at the hearing that the Tribunal would not grant this request but that it was open to her to bring a person to the hearing to assist her with any carrying of bags and materials.
29The applicant also asked that a court reporter be present on the third hearing day. When asked for the basis of this request, the applicant stated that she wanted a record of the proceedings because she intended to challenge the Tribunal’s decision and that she wanted a record to assist her with the book she is writing about her experiences.
30Given the reasons for her request and in accordance with the Tribunal’s Practice Direction on Recording Hearings, the applicant has indicated that she wishes to retain the services of a court reporter. She is directed to provide the name of the person or company she is retaining to counsel for the respondent four days in advance of the next hearing date. In addition the applicant is directed to provide transcripts of the proceedings within two weeks of each hearing block to the respondent and the Tribunal.
CONDUCT OF APPLICANT DURING THE HEARING
31During the hearing dates already held, the conduct of the applicant has caused the Tribunal a great deal of concern. At various points in the proceedings, both while she was represented and subsequently, the applicant has been very disrespectful to respondent counsel, members of the respondent organization and the Tribunal. She has persistently interrupted respondent counsel’s submissions and attempted to speak over the Tribunal. She has also raised her voice and shouted during the course of the hearing. I have told the applicant directly and through her former representative that such conduct is not tolerable and directed her not to interrupt the respondent’s submissions or the Tribunal or to raise her voice and shout.
32In Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913 at para. 9, the Tribunal stated as follows:
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.
33This is a warning to the applicant that discourteous and abusive conduct will not be tolerated. In the event that the applicant persists in this sort of communication, and/or if the applicant continues to fail to comply with the Tribunal’s Rules of Procedure and/or its directions, the Tribunal may dismiss her Application as an abuse of process, pursuant to s.23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
Dated at Toronto, this 28th day of November, 2014.
“Signed by”
Jay Sengupta
Vice-chair