HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bahareh Norouzian Applicant
-and-
Young Women’s Christian Association of Greater Toronto Respondent
-and-
Canadian Union of Public Employees, Local 2198 Intervenor
DECISION
Adjudicator: Maureen Doyle Date: March 3, 2014 Citation: 2014 HRTO 277 Indexed as: Norouzian v. Young Women’s Christian Association of Greater Toronto
APPEARANCES
Bahareh Norouzian, Applicant No one appearing
Young Women’s Christian Association of Greater Toronto, Respondent Frances Gallop, Counsel
Canadian Union of Public Employees, Local 2198, Intervenor Devon Paul, Counsel
Introduction
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 27, 2010 alleging reprisal and discrimination with respect to employment on the basis of colour, place of origin and age.
2Continuation dates for this hearing were scheduled for February 18, 19 and 20, 2014. All parties attended the February 18, 2014 hearing date, but the applicant failed to attend the February 19, 2014 hearing date. The hearing convened on February 19, 2014 and I received submissions from the respondent and the intervenor regarding the applicant’s failure to attend. Following these submissions, at approximately 10:45 am, I dismissed the Application and advised that written reasons for my decision would follow. These are the reasons for that decision.
BACKGROUND
3Following a review of the Application, the Tribunal issued a Case Assessment Direction (“CAD”), directing that a Summary Hearing take place in order to determine whether the Application should be dismissed as having no reasonable prospect of success.
4Following the Summary Hearing in this matter, on February 29, 2012, the Tribunal issued Interim Decision, Norouzian v. Young Women’s Christian Association of Greater Toronto, 2012 HRTO 435. This Interim Decision denied the applicant’s attempt to amend her Application for a third time, dismissed certain other allegations as having no reasonable prospect of success, and allowed certain other allegations to proceed in the Tribunal’s process, finding that they could not be dismissed as having no reasonable prospect of success.
5Three days of hearing were scheduled for this matter for January 7, 8 and 9, 2013. On the evening of the first day of hearing, the applicant sent the Tribunal a Request to Adjourn the remaining two days of hearing, on the ground that she was too unwell to continue. When the hearing reconvened the next day, the applicant was not in attendance. The respondent submitted at that time that the Application should be dismissed based on abandonment and abuse of process. The Tribunal issued a CAD directing the applicant to provide medical evidence regarding her Request to Adjourn. The applicant provided some medical documentation and a teleconference hearing was scheduled to address the matter of the applicant’s Request for an Adjournment and her failure to appear at the hearing dates January 8 and 9, 2013.
6Additionally, by that time, the Tribunal was in receipt of correspondence from the intervenor, advising that new counsel, Mr. Devon Paul, would be representing it in this matter. In a CAD dated February 5, 2013, the Tribunal noted that Mr. Paul is the son of one of my former law partners, and advised the parties that at the teleconference hearing, they would be given the opportunity to make any submissions they wished regarding whether they believed this raised a reasonable apprehension of bias, and what they would propose, if it does.
7The teleconference hearing was convened on April 3, 2013, and all parties participated. On June 27, 2013, the Tribunal issued Interim Decision Norouzian v. Young Women’s Christian Association of Greater Toronto 2013 HRTO 1131. In that Interim Decision, I considered the parties submissions including the applicant’s submission that there was a reasonable apprehension of bias and her submission that my participation in the mediation/adjudication process indicated bias. I held that the applicant had not established a reasonable apprehension of bias and I declined to recuse myself.
8Also in the June 27, 2013 Interim Decision, at paragraph 50, I found as follows regarding the medical documentation provided by the applicant in support of her Request for an Adjournment:
I find that the medical documentation appears to provide some basis for an assertion that the applicant was experiencing an acute episode of back pain which required that she rest. I am concerned by what appears to be a mischaracterization of the requirement for standing at the hearing, however, and the applicant is advised that should she make any future requests for an adjournment of a scheduled hearing day on a medical basis, she may be required to provide detailed medical documentation which specifically addresses how and why she is unable to attend a hearing at the Tribunal and what, if any, accommodation, would render her attendance possible.
9Accordingly, through this Interim Decision dated June 27, 2013, I directed the Registrar to schedule new dates for the continuation of the hearing.
10The Tribunal issued a Notice of Continuation of Hearing on August 20, 2013, indicating that dates were scheduled for the continuation of this hearing, commencing at 9:30 am on February 18, 19 and 20, 2014. With regard to failure to attend the hearing, the Notice stated as follows:
If you do not attend the hearing after receiving proper notice, the HRTO may proceed in your absence (if you are a respondent or intervener) or dismiss the Application as abandoned (if you are the applicant).
11The Notice of Continuation of Hearing was sent to the address provided by the applicant to the Tribunal. This Notice was not returned as undeliverable. The applicant subsequently sought and was provided with summonses to witness for her witnesses, and her request to record the proceedings was granted.
12The hearing proceeded as scheduled on February 18, 2014, and the applicant completed her evidence in chief and counsel for the respondent began, but did not complete, her cross-examination of the applicant. It was agreed that the following morning would likely be taken up with the completion of the cross-examination of the applicant and the applicant was advised that she would not need to make her witnesses available to testify until the afternoon.
13During the course of the cross-examination of the applicant on February 18, 2014, her evidence included testimony which had not been particularized in the witness statement she provided for herself in advance of the hearing pursuant to Rule 17 of the Tribunal’s Rules of Procedure. In addition, in the course of her testimony the applicant attempted to reference documents that were not provided to the Tribunal in accordance with Rule 16.3 of the Tribunal Rules of Procedure, but she was not permitted to do so. Further, there were objections made to portions of her testimony on the ground that it was not relevant to the issues which were properly before the Tribunal in light of the rulings made in Interim Decision 2012 HRTO 435, dated February 29, 2012. The applicant was reminded of the scope of issues before the Tribunal at the hearing and of the fact that the evidence she tendered was to be relevant to those issues. Finally, during the course of cross-examination of the applicant, the applicant frequently argued with counsel for the respondent and provided explanations and submissions rather than direct answers to the questions asked. She was directed by the Tribunal to answer questions, and was also permitted, as appropriate, to provide explanations for her answers. Various elements of the hearing process, including the opportunity to provide “reply” evidence, were explained to the applicant throughout the course of the day.
14The applicant was not in attendance at the second scheduled day of hearing on February 19, 2014. Instead, the applicant had written email correspondence to the Registrar of the Tribunal, copying the other parties, at 8:37 am. In her email correspondence, she requests that the Tribunal replace the Vice-chair for her hearing, and states that “it would a vast of time [sic] to go on with my hearing”. In her email correspondence, she states that counsel at the hearing had been allowed to interrupt her testimony with objections, that I had been “passive” in permitting such objections to be made, and that I had not permitted her to “use and refer to [my] most important evidence”. She also again submitted that I am biased, on the basis of the mediation/adjudication session and on the basis of my acquaintance with Mr. Paul, issues previously addressed in Interim Decision, 2013 HRTO 1131, dated June 27, 2013. She concluded by saying that she did not believe that her “hearing is going to be conducted fairly” and requested that I be replaced as Vice-chair, or she would “take the matter to the higher court”.
15Both the respondent and the intervenor were present at the hearing on February 19, 2014. Through their counsel, both were given the opportunity to make submissions regarding the applicant’s email correspondence and what the effect on the hearing process of the applicant’s failure to attend at the hearing should be.
16With respect to the applicant’s email correspondence, the respondent submitted that the applicant’s allegation of bias is not supported by the history of this Application. Specifically, the respondent noted that the Tribunal has permitted the applicant to amend her Application twice. Further, respondent’s counsel noted that I permitted certain aspects of the Application to continue in the Tribunal’s process following a Summary Hearing, I granted the applicant’s request for an adjournment of the January 8 and 9, 2013 hearing dates on what the respondent characterized as “flimsy and inadequate” medical evidence which gave the applicant the benefit of the doubt, and at the hearing date February 18, 2014, I permitted the applicant to testify about matters not included in her “will-say” and permitted her to “go well beyond the questions asked of her and to say what she wanted to say.”
17The respondent’s counsel submitted that according to the applicant’s email, it is evident that she considers continuing the hearing to be a waste of time. She indicated that some of the witnesses the applicant had intended to call to give evidence were employees of the respondent. Counsel advised that she had received information indicating that the applicant had called an employee of the respondent the previous evening, asking her to advise all the witnesses she had summonsed, not to attend at the Tribunal the next day (February 19, 2014), as the hearing was cancelled. She submitted that the three days of hearing scheduled in January, 2013, two of which were adjourned due to the applicant’s non-attendance, and the three days of hearing scheduled for February, 2014, had engaged significant public resources and significant resources from the respondent. Counsel submitted that the applicant has been given every fair opportunity to present her case and that it is not up to her to decide that the hearing has been cancelled. The respondent submitted that the hearing was scheduled to continue, the applicant has chosen, for a second time, not to participate and in the circumstances, the Application should be dismissed based on abandonment and based on abuse of the Tribunal’s process.
18Counsel for the intervenor submitted that the applicant’s allegation of bias on the basis of the mediation/adjudication and on the basis of my acquaintance with him are matters which were already determined in Interim Decision, 2013 HRTO 1131, dated June 27, 2013. With respect to the applicant’s allegation that the conduct of the February 18, 2014 hearing date indicated bias, he adopted the respondent’s submissions. Counsel submitted that an informed person viewing the matter reasonably would not conclude that I would not decide the matter fairly.
19Counsel for the intervenor also adopted the respondent’s submissions regarding dismissal of the Application as abandoned and for abuse of process. Further, he advised that he too had received information from union officials associated with the respondent’s workplace, echoing the information received by counsel for the respondent regarding the applicant’s message to her witnesses not to attend the hearing as it was cancelled. He submitted that her behaviour, her failure to attend and the indication in the above-noted email that she considers continuing with the hearing to be a waste of time, all indicate that she is abusing the Tribunal’s process to vex the respondent and the intervenor and that she has abandoned the proceeding.
ANALYSIS
20The applicant raised issues in her e-mail correspondence with respect to how the hearing was conducted on February 18, 2014. The Code and the Tribunal’s Rules of Procedure confer powers upon Vice-chairs and members to manage proceedings which allow for a fair, just and expeditious resolution of the merits of an application. At sections 39, 40 and 41, the Code states as follows:
The Tribunal has the jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any application before it.
The Tribunal shall dispose of applications made under this part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.
This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.
21Rule A8.2 of the Tribunals Rules of Procedure states that the tribunal “may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.” In addition, Rule 1.7 states specific powers the Tribunal may use “in order to provide for the fair, just and expeditious resolution of any matter before it”, including:
h) define and narrow the issues in order to decide an Application;
n) limit the evidence or submissions on any issue;
w) take any other action that the Tribunal determines is appropriate.
22The question of whether I should recuse myself from this matter due to my participation in the mediation/adjudication and/or my acquaintance with counsel for the intervenor was already determined by the Tribunal in Norouzian v. Young Women’s Christian Association of Greater Toronto 2013 HRTO 1131, where I did not find that the applicant had established a reasonable apprehension of bias and I declined to recuse myself. With regard to the applicant’s allegation that at the February 18, 2014 hearing date, my conduct would indicate bias, I note that at paragraph 22 of the Tribunal’s decision in Latronico v. York Region District School Board 2012 HRTO 2497, the Tribunal stated that “there is a presumption of impartiality and the onus is on the person seeking disqualification to establish a reasonable apprehension of bias”.
23The Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board) 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, per de Grandpre, stated 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 it is more likely than not that [the decision-maker], whether consciously or unconsciously not decide fairly.’
24It is clear that the applicant is unhappy with the way the hearing has unfolded, including the fact that the other parties made objections which interrupted her testimony. However, even if I have regard to the allegations stated in her email correspondence, which should have properly been made the subject of submissions at the hearing, I do not find that she has discharged her onus to establish a reasonable apprehension of bias and I decline to recuse myself. The Code and the Tribunal Rules of Procedure noted above provide that the Vice-chair has the responsibility and the authority to determine the manner in which the hearing will proceed and to direct the parties with respect to the hearing procedure. It is not unusual for parties to make objections during the course of oral testimony, and the fact that the other parties in this matter were permitted to make objections to portions of the applicant’s testimony does not establish a reasonable apprehension of bias. Similarly, the fact that the applicant was reminded of the scope of issues and relevant and permissible evidence does not establish a reasonable apprehension of bias, nor does the Tribunal’s direction to the applicant to answer questions posed in cross-examination.
25With respect to the applicant’s failure to attend the February 19, 2014 hearing date, in Ouwroulis v. New Locomotion, 2009 HRTO 335 the Tribunal discussed an applicant’s responsibilities when bringing a human rights application at paragraphs 4-7 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. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.
26A Tribunal application is a legal proceeding commenced by the applicant. The respondent has spent time, money and resources in responding to this Application and the respondent and intervenor have spent time, money and resources in attending a hearing where the applicant failed to appear. The Tribunal has also expended significant resources in processing this Application and in organizing the hearing date set for this matter.
27The applicant did not attend at the February 19, 2014 scheduled day of hearing. Instead, she wrote an email to the Registrar and to the Tribunal. Had the applicant wished to make submissions regarding bias, it was her responsibility to attend at the hearing in order to seek to do so. Instead, she simply sought to bring the proceedings to a halt at her own instance. In her email, the applicant indicates that it is her view that continuing with the hearing is a waste of time. While no sworn evidence was tendered regarding her telephone call to her witnesses, I note that this account appears to be consistent with her stated view that continuing the hearing is a waste of time. It is clear that the applicant was aware of the February 19, 2014 scheduled hearing date having attended the hearing on the previous day and discussed a proposed schedule for February 19, 2014. In addition, the applicant was advised about the consequences of non-attendance in the August 20, 2013 Notice of Continuation of Hearing. Given the applicant’s experience with an adjournment request in relation to the January 8 and 9, 2013 hearing dates and the respondent’s request for dismissal of the Application at that time, it is also clear that she must have been aware of the importance of attending at a hearing date and the possible consequences for non-attendance.
28In Sebhatu v. Starwood Canada Corp. o/a The Westin Harbour Castle, 2012 HRTO 329, the Tribunal dismissed an application in circumstances similar to the circumstances in this matter. In Sebhatu, during a Summary Hearing, the applicant’s counsel stated that the hearing should be adjourned and that the Tribunal should assign a different Vice-chair to hear the matter. When the other parties submitted that there was no basis for the Vice-chair to recuse himself, the applicant and her counsel disconnected from the Summary Hearing which was being conducted by way of teleconference call. The Vice-chair found that by disconnecting from the hearing, the applicant had abandoned the Application and dismissed it on that basis.
29In this case, the applicant indicated that continuing with this hearing process is a “waste of time” and in view of her failure to attend at the hearing date of February 19, 2014, which is consistent with her email correspondence to the Tribunal of that date, I find that the applicant has abandoned this Application and it is dismissed on that basis.
Dated at Toronto, this 3rd day of March, 2014.
“signed by”
Maureen Doyle Vice-chair