Taucar v. University of Western Ontario, 2015 HRTO 197

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Haruyo Taucar

Applicant

-and-

The University of Western Ontario, Donna Pennee and Lisa Ann Korab

Respondents

B E T W E E N:

Haruyo Taucar

Applicant

-and-

Western University

Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: February 12, 2015 Citation: 2015 HRTO 197 Indexed as: Taucar v. University of Western Ontario

1This Interim Decision is written to address further allegations of a reasonable apprehension of bias raised by the applicant in correspondence to the Tribunal subsequent to my Interim Decision in this matter dated January 28, 2015 (2015 HRTO 125) as well as to address various case management issues.

Further allegation of reasonable apprehension of bias

2By letter to the Registrar dated February 3, 2015, and again in a letter to the Associate Chair dated February 4, 2015, the applicant alleges a reasonable apprehension of bias on my part and requests that I be removed as the assigned adjudicator in this matter. To the extent that the applicant is simply re-raising allegations of a reasonable apprehension of bias that she has previously raised and that I have already addressed and dismissed, I will not address them further in this Interim Decision. Accordingly, I will address only the further allegations of a reasonable apprehension of bias that are raised as a result of my Interim Decision dated January 28, 2015.

3I will not set out again the test for reasonable apprehension of bias or the applicable principles that apply when such allegations are raised, as these already were set out in my Interim Decision dated January 28, 2015. I have directed myself to this test and the applicable principles in considering the allegations raised by the applicant that are addressed herein.

4The primary basis upon which the applicant raises a further allegation of reasonable apprehension of bias arising out of my last Interim Decision arises from my partial denial of her request to amend her original Application dated April 17, 2010 to allege reprisal. The allegation emanates from the fact that, at Part 5 of the Application as filed, which requests the applicant to identify the grounds of discrimination that she believes apply to the Application, the applicant checked the box for “reprisal or threat of reprisal”.

5The Tribunal understood that the allegations raised in the original Application were as particularized at length and in considerable detail in Schedule “A” to the Application and identified as Complaints Nos. 1, 2 and 3. This understanding was fortified by the factum filed by the applicant on August 7, 2013, for the purpose of the summary hearing in this matter. Under Part I of the applicant’s factum, which is headed “Facts and Nature of the Application”, the applicant states at para. 3: “This Application, HRTO File No. 2010-05429-I, involves three separate complaints pertaining to UWO”. The factum goes on to describe the nature of Complaints No. 2 and 3, which were at issue for the purpose of the summary hearing. Nowhere in the lengthy description of the allegations as set out in Schedule “A” to the original Application is any allegation of reprisal raised.

6As part of the original Application as filed with the Tribunal, the applicant was required to complete a Form 1-A, which requests more detailed information about the allegations where the area of alleged discrimination or harassment relates to employment. In the Form 1-A, in response to detailed questions about the applicant’s allegations of discrimination because of disability and workplace harassment, the applicant’s responses reference Schedule “A” to the Application as providing a more complete account of these allegations. In contrast, in the section of the Form 1-A requesting more detailed information about the allegation of reprisal, no reference is made to the allegations as set out in Schedule “A” except for the purpose of identifying the nature of the human rights proceeding which the applicant started or took part in. In response to Question A41, which asked the applicant to explain why she believes that she was reprised against, the only allegation raised pertains to an alleged comment made by Dean Pennee on or about August 18, 2009, that the University might shut down the Japanese program.

7Given the Tribunal’s understanding that the applicant was proceeding with her allegations as particularized in Schedule “A” to the Application, I had not understood that the applicant was proceeding with this specific allegation of reprisal. If I was in error in this regard, I apologize to the parties. However, that does not give rise to an allegation of any reasonable apprehension of bias on my part nor does that justify removing myself as the assigned adjudicator in this matter. Further, that does not change the determinations I made in my Interim Decision dated January 28, 2015 to the extent that the applicant was seeking an amendment to the original Application to raise allegations of reprisal in relation to: Complaint No. 2, which already had largely been dismissed as a result of the summary hearing; Complaint No. 3, which was dismissed as a result of the summary hearing; and paras. 110 to 128 of Schedule “A” to the Application, which were struck. As indicated in my Interim Decision dated January 28, 2015, no allegation of reprisal previously had been raised in relation to any of these allegations, or indeed in relation to any of the allegations set out in Schedule “A” to the original Application.

8Having said that, I agree with the applicant that the one specific allegation of reprisal raised in the original Application, namely the alleged comment by Dean Pennee on or about August 18, 2009, about potentially shutting down the University’s Japanese program, remains outstanding and has not yet been disposed of by this Tribunal. However, given this Tribunal’s prior understanding that the allegations being raised in the original Application were as set out in Schedule “A” to that Application, within 14 calendar days of the date of this Interim Decision, I would like confirmation from the applicant that she still intends to proceed with the one specific reprisal allegation raised in her original Application.

9In my Interim Decision dated January 28, 2015, I allowed an amendment to the original Application to permit the applicant to raise reprisal with respect to the remaining allegations, namely the allegations as set out in Complaint No. 1 and the alleged comment made by Ms. Korab. Correspondence from applicant counsel subsequent to that Decision appears to indicate that the applicant does not intend to proceed with allegations of reprisal in respect of the remaining allegations in her original Application. Within 14 calendar days of the date of this Interim Decision, I would like clarification from the applicant as to whether or not she intends to accept the amendments to her original Application as granted by me in the Interim Decision dated January 28, 2015 and intends to proceed at the hearing in this matter with an allegation of reprisal arising out of the remaining allegations in her original Application.

10The time for the respondents to file any further or amended Response in relation to the amendments granted is hereby extended to a period of 35 calendar days after such clarification is provided by the applicant.

Case management matters

11Based on the correspondence exchanged between the parties, it now appears that all parties are available to proceed with the hearing on the originally scheduled dates of May 7 and 8, 2015. Unfortunately, at this time I am no longer available on May 8, 2015, but the hearing will proceed on May 7, 2015. The hearing will take place at the Tribunal’s hearing centre in Toronto, and will commence at 12:00 noon and run until 5:00 p.m. on that day.

12Obviously more than one half-day will be required to complete this hearing. The applicant has stated that the next available days for her and her counsel are August 15 to 31, 2015 ,and December 15 to 31, 2015. Parties to a proceeding before this Tribunal need to make themselves reasonably available for the scheduling of hearing dates. Accordingly, within 14 calendar days from the date of this Interim Decision, I am requiring the applicant to provide to the Tribunal and the respondents an explanation to justify the unavailability of her and/or her counsel for the dates previously offered in May 2015 and for hearing dates in June, July, the first two weeks of August, September, October, November, and the first two weeks of December 2015. If the Tribunal is not satisfied that there is a sufficient justification supporting the unavailability of her and/or her counsel during any of these periods of time, the Tribunal may proceed to schedule hearing dates notwithstanding the applicant’s asserted unavailability.

13The respondent has requested direction from the Tribunal as to whether, if any or both of the personal respondents are not in attendance at the hearing on May 7 and 8, 2015, counsel may nonetheless discuss with them the evidence given on those dates. This is opposed by the applicant. The dispute on this point arises from the expectation of the parties that the Tribunal will issue an order excluding witnesses from the hearing, which generally is accompanied by an instruction that the parties and their witnesses are not to discuss with any witness who has not yet testified or who may be re-called as a witness any evidence that has been given by other witnesses at the hearing. Such an order does not apply to a party to the proceeding, as they are entitled to be present throughout the hearing. If any party, including a personal respondent, is not in attendance at the hearing to hear the evidence given by the applicant or other witnesses called by the applicant or any respondent witnesses, there is no bar to counsel discussing with that party the evidence that has been given in the party’s absence, subject of course to the restrictions set out in Rule 5.4-2 of the Rules of Professional Conduct when the party is actually testifying on the witness stand. The same would apply to communications between the applicant and her counsel about evidence given at the hearing on any day that the applicant is not in attendance.

14Finally, the applicant has raised the prospect of the hearing being recorded, either by the Tribunal or by her. The applicant is referred to the Tribunal’s Practice Direction on Recording Hearings, which states that the Tribunal does not normally record or transcribe its proceedings, although it will do so when it is necessary to accommodate the needs of the panel, a party or a representative under the Human Rights Code. If the applicant intends to request such accommodation due to any disability-related needs she may have, she should provide to the Tribunal a letter written by her doctor on his letterhead setting out the basis and reasons for any such request.

ORDER

15For the foregoing reasons, I hereby make the following order:

a. The applicant’s request for me to be removed as the assigned adjudicator in this matter on the basis of a reasonable apprehension of bias is denied;

b. Within 14 calendar days of the date of this Interim Decision, the applicant shall provide clarification to the Tribunal and the respondents as to

i. whether she still intends to proceed with the one specific reprisal allegation raised in her original Application, namely the alleged comment by Dean Pennee on or about August 18, 2009 about potentially shutting down the University’s Japanese program, and

ii. whether or not she intends to accept the amendments to her original Application as granted by Interim Decision dated January 28, 2015 and intends to proceed at the hearing in this matter with an allegation of reprisal arising out of the remaining allegations in her original Application;

c. Within a further 35 calendar days, if the applicant indicates that she intends to proceed at the hearing in this matter with an allegation of reprisal arising out of the remaining allegations in her original Application and if the respondents wish to plead additional material facts in response to the reprisal allegations now raised in the first Application, then they are to file an amended Response to plead any such additional material facts and the applicant may file any amended Reply within a further 7 calendar days;

d. The hearing of this matter will proceed on May 7, 2015, at the Tribunal’s hearing centre in Toronto, commencing at 12:00 noon and ending at 5:00 p.m.; and

e. Within 14 calendar days from the date of this Interim Decision, the applicant shall provide to the Tribunal and the respondents an explanation to justify the unavailability of her and/or her counsel for the dates previously offered in May 2015 and for hearing dates in June, July, the first two weeks of August, September, October, November, and the first two weeks of December 2015.