Moore v. Ferro & Company, 2015 HRTO 1569

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Philton Moore

Applicant

-and-

Ferro & Company and Ellen Helden

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: November 19, 2015

Citation: 2015 HRTO 1569

Indexed as: Moore v. Ferro & Company

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Case Assessment Direction (“CAD”) dated October 20, 2015, and the Tribunal’s Interim Decisions at 2015 HRTO 1509, dated November 9, 2015, and at 2015 HRTO 1546, dated November 16, 2015. This Decision also addresses a Request for Order filed by the applicant on November 17, 2015, seeking a stay of proceedings pending judicial review.

Request for reconsideration

2On November 17, 2015, the applicant filed a Request for Reconsideration of the Tribunal’s CAD dated October 20, 2015, and the Tribunal’s Interim Decisions at 2015 HRTO 1509, dated November 9, 2015, and at 2015 HRTO 1546, dated November 16, 2015.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), provides as follows:

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction on Reconsideration to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

5The Tribunal’s Practice Direction on Reconsideration includes the following:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

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.

9The applicant has requested that another Tribunal member, other than myself, should decide this Request for Reconsideration. As stated by the Divisional Court in Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 at para. 16, “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”. The test for reasonable apprehension of bias, as summarized in the Landau decision, is “whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly” (para. 15). As indicated in my Interim Decision dated November 9, 2015, I see nothing that gives rise to a reasonable apprehension of bias that would disqualify me from determining the applicant’s reconsideration request. In his Request for Reconsideration, the applicant has not raised any further or additional allegations of a reasonable apprehension of bias that would disqualify me from considering his Request.

10The first question to address is whether the Tribunal’s CAD dated October 20, 2015 or either of the Tribunal’s Interim Decisions are “final decisions” within the meaning of Rule 26.5. As stated in Sigrist and Carson, above, a “final decision” is “one that disposes of some or all of the central issues in the complaint as between the parties”: see para. 41. This does not include procedural directions made during the course of a proceeding, such as lengthening or shortening time limits for taking steps, ordering documentary disclosure, or consolidating or separating cases for hearing: see para. 32.

11The Tribunal’s Interim Decision dated November 16, 2015 denied the applicant’s request for the re-scheduling or postponement of the hearing for a period of six months, in order for him to seek an order from Bankruptcy Court lifting the statutory stay of proceedings as against Mr. Ferro under s. 69.3(1) of the Bankruptcy and Insolvency Act (“BIA”). In my view, this Interim Decision is in the nature of a procedural ruling and does not constitute a “final decision” within the meaning of Rule 26.5. Accordingly, the applicant is not entitled to seek reconsideration of this Interim Decision.

12The Tribunal’s Interim Decision dated November 9, 2015 denied the applicant’s request for me to remove myself due to a reasonable apprehension of bias. In my view, this is not a decision that disposes of some or all of the central issues in the Application, and thus does not constitute a “final decision” within the meaning of Rule 26.5. Accordingly, the applicant is not entitled to seek reconsideration of this aspect of the Interim Decision dated November 9, 2015.

13The Tribunal’s CAD dated October 20, 2015 and its Interim Decision dated November 9, 2015 also stayed this proceeding as against Mr. Ferro on the basis of the statutory stay of proceedings under s. 69.3(1) of the BIA. However, the basis of this determination was that the applicant was seeking to invalidate the bankruptcy as a whole, and that the Bankruptcy Court, and not this Tribunal, was the proper forum in which to raise such arguments. In these circumstances, it is not clear to me that this determination can be regarded as disposing of a central issue in the Application, as the applicant could have (and still can) proceed before Bankruptcy Court to either seek to invalidate the bankruptcy as a whole or seek an order lifting the statutory stay to permit him to proceed as against Mr. Ferro. While it is not clear to me that this amounts to a “final decision” within the meaning of Rule 26.5, I nonetheless am prepared to consider the applicant’s reconsideration request in relation to this one determination.

14The applicant takes issue with my statement in the Interim Decision dated November 9, 2015 that “the Bill of Rights applies only in federal jurisdiction and has no application to a proceeding before this Tribunal which operates under provincial jurisdiction”: see para. 20. As part of his request to remove me for reasonable apprehension of bias and challenge the stay of proceedings as against Mr. Ferro, the applicant relied upon s. 2(e) of the Canadian Bill of Rights on the basis that I had deprived him of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations. The applicant in his reconsideration request takes the position that my statement about the Bill of Rights is in conflict with established jurisprudence, namely this Tribunal’s decision in Kondramachine v. Landlord and Tenant Board, 2014 HRTO 189 (“Kondramachine”).

15In Kondramachine, the Tribunal stated (at para. 7):

The Bill of Rights is a federal statute and only has application to the interpretation and application of other federal statutes. It does not apply to the interpretation and application of provincial statutes, nor to the adjudicative activities of tribunals constituted under provincial statutes (unless those tribunals are interpreting and applying a federal statute).

16The applicant takes the position that, as I was interpreting and applying a federal statute, namely the BIA, therefore the Bill of Rights applies. With respect, this argument is in error. Section 2(e), in its relevant part, states: “no law of Canada shall be construed or applied so as to . . . deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations”. If there was an argument that some provision of the BIA operated to deprive the applicant of his right to a fair hearing, then I may have been called upon to apply the Bill of Rights. However, that was not the applicant’s argument. The applicant’s argument was that, by failing to give adequate or sufficient reasons for upholding the statutory stay under the BIA, I as a member of a provincial tribunal had deprived him of his right to a fair hearing. That is a situation where the Canadian Bill of Rights has no application.

17The applicant also takes the position that factors exist that outweigh the finality of a Tribunal decision. First, the applicant takes the position that in my CAD dated October 20, 2015, which was the initial determination upholding the statutory stay of proceedings under the BIA as against Mr. Ferro, I failed to provide adequate or sufficient reasons for my decision, in that I failed to address all of the applicant’s detailed arguments. He further states that this failure is not saved by the more expansive reasons set out in my Interim Decision dated November 9, 2015.

18With respect, I disagree. The simple point I made in the CAD dated October 20, 2015, and repeated again in the Interim Decision dated November 9, 2015, is that it is not the proper role of this Tribunal to look behind an assignment in bankruptcy that has been filed with and accepted by the official receiver. The effect of the applicant’s submissions about Mr. Ferro’s assignment in bankruptcy is to seek to invalidate the bankruptcy as a whole. The point that I have made twice now, and will repeat again, is that, where an applicant is seeking to invalidate the bankruptcy as a whole, the proper forum in which to raise such arguments is before the Bankruptcy Court and not this Tribunal. As stated in my Interim Decision dated November 9, 2015 (at para. 13):

I say this not only because Bankruptcy Court possesses the requisite experience and expertise in administering the BIA, but also because the impact of the applicant’s arguments, if successful, would potentially affect the interests of Mr. Ferro’s creditors, who should be on notice of and given an opportunity to respond to the applicant’s arguments. The proper forum in which to do this is Bankruptcy Court, not in the context of a proceeding before this Tribunal.

19In my view, these reasons are sufficient and adequate in order to dispose of the applicant’s arguments, as all of his detailed arguments were directed at seeking to invalidate the bankruptcy as a whole.

20Second, the applicant takes the position that I failed to address his argument that Mr. Ferro and the trustee-in-bankruptcy did not comply with s. 49(2) of the BIA, which requires an assignment in bankruptcy to “be accompanied by a sworn statement in the prescribed form showing the debtor’s property that is divisible among his or her creditors, the names and addresses of all his or her creditors and the amounts of their respective claims”. Further, s. 49(3) of the BIA states, in its relevant part, that the official receiver “shall refuse to file the assignment unless it is in the prescribed form or to the like effect and accompanied by the sworn statement required by subsection (2)”.

21The applicant takes the position that the trustee-in-bankruptcy has not denied the applicant’s assertion that Mr. Ferro failed to file a sworn statement as required by s. 49(2) and that there is no evidence to indicate that he did. With respect, the applicant is in error. By e-mail dated September 22, 2015, the trustee-in-bankruptcy sent to the applicant and filed with the Tribunal the statutory documents that were required to be filed with the official receiver prior to the issuance of a certificate of appointment. These statutory documents include: the assignment in bankruptcy for Mr. Ferro (Form 21); Mr. Ferro’s statement of affairs (non-business bankruptcy) (Form 79), which details Mr. Ferro’s assets and his liabilities, including the names and addresses of creditors and the amounts of their claims; and Mr. Ferro’s monthly income and expense statement (Form 65). As is readily apparent from these documents, Mr. Ferro’s statement of affairs (Form 79), which is the form prescribed to comply with the requirement of s. 49(2) of the BIA, was sworn by Mr. Ferro before his trustee-in-bankruptcy, who is a Commissioner of Oaths (see page 9 of 10). As a result, there is no merit to the applicant’s argument that Mr. Ferro and/or the trustee-in-bankruptcy failed to comply with s. 49(2) of the BIA.

22Finally, while the applicant has asserted in his Request for Reconsideration that there are new facts or evidence that are potentially determinative of the case and that could not reasonably have been obtained earlier, he does not in fact identify what these new facts and evidence may be. Accordingly, there is no basis to grant reconsideration under this ground.

23As a result, the applicant has not satisfied me that the decision to stay this proceeding as against Mr. Ferro is in conflict with established jurisprudence or that there are other factors that outweigh the public interest in the finality of Tribunal decisions, and he has not identified any new facts or evidence that are potentially determinative of this issue.

24For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.

Request for stay pending judicial review

25The applicant also has filed a Request for Order seeking a stay of the hearing in this matter pending judicial review. The applicant has stated that he intends to file an urgent Application for Judicial Review. He has stated that an Application for Judicial Review has not yet been issued pending the determination of his reconsideration request, on the basis that this is a necessary step that needs to precede the initiation of judicial review proceedings. But he states that he has attached a draft Application for Judicial Review to his Request, which he expects to be issued by the Court and served on the parties later this week.

26In fact, however, no draft Application for Judicial Review was attached to the materials filed by the applicant with the Tribunal in support of his request for a stay.

27The 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. This is acknowledged by the applicant.

28This 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, 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.

29My difficulty is that, in the absence even of a draft Application for Judicial Review, I am not satisfied that there is a serious issue to be tried. To the extent that the applicant’s Application for Judicial Review is based upon his allegation of a reasonable apprehension of bias on my part, or his allegation that I failed to give adequate reasons for upholding the statutory stay of proceedings under the BIA as against Mr. Ferro, or his various arguments as to why Mr. Ferro’s assignment in bankruptcy should be invalidated, these allegations and arguments all have already been addressed by me in this Reconsideration Decision and in my previous CAD and Interim Decisions. If that is the basis for his Application for Judicial Review, then it seems to me that there is no serious issue to be tried.

30I also am not satisfied that the balance of convenience would favour granting the stay. The Application in this matter was filed in September 2012 and relates to matters dating back primarily to the period from February to August 2011. There have been lengthy delays in this matter to date, primarily due to the failing health of Mr. Ferro, who ultimately passed away in June 2015. The hearing is scheduled to proceed on December 1 to 3, 2015, over four years following the underlying events at issue. As addressed in my Interim Decision dated November 16, 2015, these hearing dates were scheduled in consultation with the parties at a time when the applicant already had been made aware not only that Mr. Ferro had passed away but that he had made a personal assignment in bankruptcy prior to his untimely death.

31The principal issue being pursued by the applicant at this juncture is his apparent desire to continue this proceeding as against Mr. Ferro notwithstanding his death and bankruptcy, either by invalidating the assignment in bankruptcy as a whole or by obtaining an order lifting the statutory stay. As stated in my Interim Decision dated November 16, 2015, if that is the applicant’s desire, then he has had ample time to do so in advance of the scheduled hearing dates. But rather than initiate a proceeding in Bankruptcy Court to obtain relief, the applicant has continued to file repeated requests with this Tribunal despite being told repeatedly that this Tribunal is not the proper forum.

32In these circumstances, in my view, the balance of convenience does not favour granting a stay pending judicial review, which would only serve to further delay this already long-delayed proceeding.

33As stated previously, if the applicant wishes to try to invalidate the bankruptcy as a whole or to obtain an order lifting the statutory stay, then he needs to initiate a proceeding in Bankruptcy Court. If he wishes to have my previous decisions set aside, then that is relief that he can seek on judicial review. However, absent an order either from Bankruptcy Court or from the Divisional Court staying this proceeding, the hearing in this matter will proceed as scheduled on December 1 to 3, 2015.

ORDER

34For all of the foregoing reasons, I hereby make the following order:

a. The applicant’s Request for Reconsideration is denied; and

b. The applicant’s request for a stay of this proceeding pending judicial review is also denied.