Noruwa v. Eaton Chelsea Hotel, 2015 HRTO 1219

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Noruwa

Applicant

-and-

Eaton Chelsea Hotel; Wysdom Consulting Group and Said Said

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: September 15, 2015

Citation: 2015 HRTO 1219

Indexed as: Noruwa v. Eaton Chelsea Hotel

WRITTEN SUBMISSIONS

Andrew Noruwa, Applicant

Self-represented

Eaton Chelsea Hotel, Respondent

Amanda E. Lawrence, Counsel

Said Said, Respondent

Howard Markowits, Counsel

Wysdom Consulting Group Inc, Respondent

No one appearing

1This Application alleges discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This hearing is scheduled to begin on November 9 and 10, 2015.

3In an email dated August 17, 2015, the applicant has requested a stay of the Application because he intends to seek judicial review of an Interim Decision denying a request to amend the Application. The applicant does not appear to have filed a new Application raising his new allegations.

4Eaton Chelseo Hotel and Said Said both opposed the request. The respondent Wysdom Consulting has not participated in the processing of this Application to date and has been found in default. See 2014 HRTO 1464.

5Although the request was not made using a Form 10 and could be denied on that basis, two of the respondents have responded to the request and accordingly it will be determined.

6The Request is denied. The Tribunal has had occasion to consider such requests in the past and has generaly declined to grant them.

7The starting point for considering the applicant’s request is s.25 of the Statutory Powers Procedure Act, R.S.O. 1990, c. s.22 (“SPPA”). While s.25(1) of the SPPA provides that an appeal from a tribunal decision to the court operates as a stay in the matter, subject to certain exceptions, s.25(2) provides that an application for judicial review is not an appeal within the meaning of s.25(1). Accordingly, the mere fact that a judicial review application has been initiated does not operate as an automatic stay of this proceeding.

8This Tribunal has held that for a stay pending an application for judicial review to be granted, the party seeking the stay must establish: (1) that there is a serious issue to be tried; (2) that they will suffer irreparable harm if the stay is not granted; and (3) that the balance of convenience favours the granting of the stay: Brockie v. Brillinger (No. 1) (1999), CHRR Doc. 99-119 (Ont. Bd. Inq.); King v. Toronto Police Services Board, 2008 HRTO 55 ; Washington v. Toronto Police Services Board (“ Washington”), 2009 HRTO 640 ; K.M. v. Kodama, 2014 HRTO 1074 . This test is conjunctive and a party seeking the extraordinary remedy of a stay must satisfy all three branches: RJR - MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.

9In Washington, above, the Tribunal commented as follow at para. 7 to 12:

This test, of course, reflects the traditional civil test for the granting of an injunction or a stay. In relation to an application for judicial review of an interim Tribunal decision, it should be considered in the context of the Tribunal’s role in the human rights system under the newly revised Code. I therefore make some comments about this system before considering the application of the test to the facts of this case.

It is a well-established principle of judicial review that “delays or interruptions occasioned by judicial review proceedings should be avoided except in ‘exceptional circumstances’”: King, supra at para. 26. As the Divisional Court explained in Ontario College of Art v. Ontario (Human Rights Commission), 1993 CanLII 3430 (ON SCDC),

For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion.

The Divisional Court has emphasized that this approach should be applied by adjudicators in considering requests like this one, holding that a labour arbitrator erred in adjourning an arbitration pending a decision on a judicial review of an interim decision: Placer Dome Inc. v. United Steelworkers of America, Local 8533, [1994] O.J. No. 522.

These principles, in my view, are supported and strengthened by the provisions of the new Code, and, in determining requests for stays pending judicial review, the Tribunal should take the legislature’s guidance into account. Section 41 permits 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” [emphasis added]. Decisions of the Tribunal are final and not subject to appeal or to being set aside in a judicial review unless the decision is patently unreasonable: s. 45.8.

Most important, s. 43(8) of the Code specifically addresses the issue of procedural rulings, providing as follows:

Failure on the part of the Tribunal to comply with the practices and procedures required by the rules or the exercise of a discretion under the rules by the Tribunal in a particular manner is not a ground for setting aside a decision of the Tribunal on an application for judicial review or any other form of relief, unless the failure or the exercise of a discretion caused a substantial wrong which affected the final disposition of the matter.

The requirement for a procedural ruling to affect the “final disposition” of the matter in order to be set aside by a Court is, in my view, a particularly strong signal that the Tribunal should be reluctant to fragment or interrupt its proceedings as a result of an application for Judicial Review, absent exceptional circumstances.

In summary, unlike the previous Code in which decisions could be appealed as of right to the Divisional Court, the new Code sets up the Tribunal as a specialized adjudicative agency, focused on the fair, just and expeditious resolution of matters before it and subject to a privative clause. In applying the test for a stay, these features of the legislation must be central to the analysis.

10In my view, the request fails on the first part of the test – whether there is a serious issue for trial. This aspect of the test has been approached in somewhat diverging ways by the Tribunal. See Taucar v. University of Western Ontario, 2015 HRTO 515, for a discussion of the varying approaches.

11However in my view, it is difficult to say in this case that there is a serious issue to be tried, when the issue appears to be a challenge to an interim procedural decision of the Tribunal which is protected by a privative clause. To begin with there is no application for judicial review and the applicant has not set out what the issue is other than in the most general sense – he is dissatisified with the manner in which his case has been handled. The respondents have assumed that his proposed application for judicial review will be in respect of the Tribunal’s Interim Decision (2015 HRTO 1122) denying his Request to amend his Application. For purposes of this Decision, I have dealt with the request on that basis as well.

12I also do not understand how it can be said that there is a serious issue to be tried, when the issue appears to be a challenge to an interim procedural decision of the Tribunal which is protected by a privative clause. In my view the granting of an application for judicial review is by its very nature an extraordinary remedy and moreso when the decision is not a final one. For these reasons, I would dismiss the request.

The applicant’s Request

13The applicant seeks to amend the remedy he is seeking. The request is opposed. The request is granted. The Tribunal routinely grants such requests. See for example Marino v. Compuware Corporation of Canada, 2011 HRTO 1390. The request is granted without determination by the Tribunal of the appropriateness of the remedies sought and without prejudice to any position that the respondents may wish to take with respect to these issues.

14I am not seized of this case