Taucar v. University of Western Ontario, 2015 HRTO 515

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: April 23, 2015 Citation: 2015 HRTO 515 Indexed as: Taucar v. University of Western Ontario

WRITTEN SUBMISSIONS

Haruyo Taucar, Applicant Christopher Taucar, Counsel

The University of Western Ontario, Western University, Donna Pennee and Lisa Ann Korab, Respondents Catherine Peters, Counsel

Request for adjournment for medical reasons

1This Interim Decision is issued to address two matters: (1) the applicant’s request for an adjournment of the hearing for medical reasons; and (2) the applicant’s request for a stay of this proceeding pending the hearing and determination of an application for judicial review.

2These Applications are scheduled for hearing commencing on May 4 and 7, 2015, and continuing on June 10, 11, 12 and 30, 2015. By letter dated March 31, 2015, the applicant requested an adjournment of the scheduled hearing dates in this matter for medical reasons. This letter attached a note from the applicant’s doctor dated March 26, 2015. The respondents filed responding submissions objecting to the adjournment request by letter dated April 2, 2015, and the applicant filed submissions in reply by letter dated April 6, 2015, which I have considered.

3The Tribunal had received two previous letters signed by the applicant’s doctor requesting accommodations for the applicant in respect of the conduct of the hearing in this matter, which were granted. The doctor’s letter dated March 16, 2015 also requested deferral of the hearing on the basis that the applicant may have to re-testify if anticipated judicial review proceedings were successful and on the basis of her perception that I am biased and in a conflict of interest. The deferral request was denied by Interim Decision dated March 25, 2015 (2015 HRTO 380), on the basis that the prospect of the applicant having to testify twice was speculative and that the applicant’s personal perception that I am biased, which is not supported, is not a proper basis for deferral: see paras. 6 and 7.

4In the letter dated March 19, 2015 from the applicant’s counsel which requested deferral on the aforementioned bases, it also was asserted that “the applicant’s condition has deteriorated to such a point over the last several months with no sign of improvement, thanks in part to Mr. Hart’s misconduct, that she now asks for a delay of several months in any event until at least the end of December 2015 in order to give her a chance to recuperate.” In my Interim Decision dated March 25, 2015, I noted that this assertion is not stated in or supported by the doctor’s letter dated March 16, 2015: see para. 8.

5It appears that the applicant had an appointment with the doctor on March 26, 2015, the day immediately following the issuance of my Interim Decision dated March 25, 2015, which resulted in a brief handwritten note stating, in its entirety, “recommend to delay the hearing for medical reasons”. The basis for this recommendation is not stated by the applicant’s doctor, nor did he identify what had changed since previous correspondence from applicant’s counsel as recently as February 26, 2015 confirming the applicant’s ability to attend the hearing on May 4 and 7, 2015. I also note that the letter dated March 16, 2015 and signed by the applicant’s doctor, while requesting deferral of the hearing on the bases identified above, did not indicate that the applicant was unable to participate in the hearing at all for medical reasons. Rather, the identified concerns were that she not be required to testify twice and that she not be required to testify before me due to her perception that I am biased.

6In e-mail correspondence to the Tribunal dated April 1, 2015, applicant’s counsel conveyed that the applicant’s doctor had specifically invited the Tribunal to contact him directly concerning his recommendation. In a Case Assessment Direction dated April 14, 2015 (the “CAD”), I noted that this is a contested adjournment request for medical reasons, which needs to be decided by me as the assigned adjudicator. I indicated that I cannot have ex parte communications with the applicant’s doctor for the purpose of deciding this issue, nor would it be proper to have a Tribunal staff member speak with the applicant’s doctor on an ex parte basis and convey any further information to me.

7In the CAD, I stated that, in my view, further information is required from the applicant’s doctor in order to support his recommendation, including: what symptoms the applicant displayed on March 26, 2015 to support his recommendation; how have any such symptoms changed since the applicant last saw her doctor; what if any restrictions the applicant’s current symptoms place on her other activities; and whether any additional accommodations could be made that would enable the applicant to testify on the hearing dates scheduled for May 4 and 7, 2015.

8In this regard, I note that, from previous correspondence from applicant’s counsel, it had been stated that the applicant needed to complete her testimony by May 7, 2015 as she would be “out of province” after that time and would not be available to testify at a hearing subsequently with the exception of the last two weeks of August 2015 and the last two weeks of December 2015. It has not been indicated as to the reason for the applicant being out of province during this period of time, and particularly whether she will be engaged in some out-of-province employment during this time. If the applicant is indeed employed, one specific piece of information I would want to hear about from the applicant’s doctor is whether his recommendation arising out of the applicant’s medical condition has any impact on her ability to work and, if not, why the applicant would be able to work but not participate in the hearing.

9In the CAD, I indicated that the appropriate process to obtain the necessary information from the applicant’s doctor in order to support the adjournment request was for the Tribunal to schedule a conference call to be attended by the parties and the applicant’s doctor. I indicated that I would take the lead in questioning the applicant’s doctor in order to obtain the information I required to make my determination, to be followed by an opportunity for applicant’s counsel to ask any further relevant questions of the applicant’s doctor and for respondents’ counsel to cross-examine the applicant’s doctor. I indicated in my CAD that once the questioning of the applicant’s doctor was completed, the doctor would be excused from the conference call and I would hear any further oral submissions from the parties in relation to the contested adjournment request arising from the additional information provided by the doctor.

10The CAD stated that the Tribunal would be contacting the parties in the very near future to make arrangements for this conference call. In anticipation of this, applicant’s counsel was directed to communicate with the applicant’s doctor about his availability to attend such a conference call, which I noted should require no more than one hour of the doctor’s time. I noted that I would allow a further half-hour for oral submissions on the adjournment request, so that the total time to be scheduled for the conference call would be one and a half hours.

11On the afternoon of April 14, 2015, the Tribunal contacted the parties in order to schedule the conference call, and provided available dates of April 16, 17, 20 or 21, 2015. The respondents replied with their availability for this conference call. By letter dated April 16, 2015, the applicant’s counsel wrote to advise that he had met with the applicant’s doctor that day and the doctor had stated that “it is not his practice to be involved in hearings”. By letter dated April 18, 2015, the applicant’s counsel stated that, in case there was any ambiguity arising from his April 16, 2015 letter, the applicant would be relying solely upon the written documentation provided in support of her adjournment request. This letter further stated that applicant’s counsel had asked the applicant’s doctor whether he would like to attend a hearing, which he apparently would not, and stated that the applicant wished to respect her doctor’s statement that it is not his practice to be involved with hearings.

12With respect, the applicant’s doctor already has become involved in this proceeding by providing three letters in which he takes positions and makes recommendations specifically in relation to the hearing in this matter. While I appreciate that being involved in a hearing is not always a comfortable process for medical professionals, there are situations like this one where a doctor’s evidence is required in order to provide support for medical recommendations the doctor has made and where the opposing party is entitled to test the doctor’s evidence through cross-examination. I am mindful of the burden that being involved in a legal proceeding can place on a medical professional, and have done what I can to minimize the burden on the applicant’s doctor by being prepared to hear his evidence by phone and to limit the time required of the applicant’s doctor to one hour. In my view, these are reasonable arrangements that attempt to balance the burden and inconvenience placed upon a medical professional against the need to hear evidence that only the doctor can provide to support an adjournment request that is opposed by the respondents.

13In my view, in the context of the surrounding circumstances, the brief handwritten note provided by the applicant’s doctor stating merely that he recommends that the hearing be delayed for medical reasons is far from sufficient to justify the granting of an adjournment for medical reasons. The matters at issue in this proceeding date back some five years now. It has been a lengthy process for this Tribunal to schedule hearing dates that meet the interests of all parties. On the basis of the information before me, I have no idea as to what “medical reasons” form the basis of the doctor’s recommendation; what his prognosis is for when the applicant would be able to attend the hearing; how the applicant’s symptoms have changed or deteriorated in the time since he wrote his March 16, 2015 letter which did not indicate that the applicant was medically unable to attend a hearing at all; whether the “medical reasons” or symptoms displayed by the applicant have any impact on her ability to work and, if not, why not; or whether there are any accommodations that the Tribunal could make to enable to applicant to attend and participate in the hearing on the scheduled dates. All of this information is exclusively in the possession of the applicant’s doctor, who has declined to make himself available for a one-hour teleconference to provide this information and to provide the respondents with an opportunity to test this information. The applicant bears the onus of providing sufficient medical evidence to support her request for an adjournment on medical grounds. In this regard, I note that the applicant has the ability to compel the doctor’s attendance on a conference call, but has chosen not to do so.

14In all of these circumstances, in my view, the brief handwritten note provided by the applicant’s doctor does not justify granting an adjournment of the hearing in this matter. Accordingly, the applicant’s adjournment request is denied.

Request for stay pending judicial review

15The applicant requests a stay of this proceeding pending the hearing and determination of an application for judicial review issued on March 30, 2015. In this regard, I have reviewed and considered the Request for Order filed by the applicant on April 1, 2015 and the supporting materials, the Response to Request for Order filed by the respondent on April 15, 2015, and the applicant’s submissions in reply filed on April 22, 2015.

16The 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.

17This 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.

18In Washington, above, this Tribunal stated (at paras. 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.

19On the issue of whether there is a serious issue to be tried, there has been some division at this Tribunal as to the extent of the scrutiny to be applied to the issues raised by the judicial review application. In King, above, I stated (at para. 10):

It has been determined that the threshold for meeting this element of the test is a low one, and that a prolonged examination of the merits is generally neither necessary nor desirable. Once satisfied that the issue raised is neither vexatious nor frivolous, the Tribunal should proceed to consider the second and third elements of the test, even if it is of the opinion that the requestor is unlikely to succeed on judicial review: see RJR - MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.

20In contrast, in other Tribunal decisions, it has been stated that: “In determining whether exceptional circumstances exist such that an adjournment should be granted, the Board should consider whether the issue grounding the judicial review application is a substantial one worthy of judicial deliberation, and in so doing the Board should assess the strengths or weaknesses of the case for judicial review.”: see Moffat v. Oswin and Kinark Child and Family Services, (BI 0056-95) (unreported decision dated December 13, 1995); Iness v. Caroline Co-op Housing, 2001 CanLII 26236 (ON HRT); McKinnon v. Ontario (Correctional Services), 2005 HRTO 48.

21I note that the Supreme Court’s decision in RJR - MacDonald Inc. v. Canada (Attorney General), above, was not referenced in the Tribunal’s case law cited in the preceding paragraph. While the Supreme Court was dealing with the test for a stay in the context of a Charter application in that case, it is my view that the principles enunciated in that decision apply equally to the test for granting a stay pending an application for judicial review.

22Having said that, in the specific circumstances of the instant case, it is my view that the issues raised on the judicial review application initiated by the applicant are frivolous and vexatious, such that there is no serious issue to be decided on judicial review. In order to explain my reasons for reaching this conclusion, I need briefly to set out some of the history of this matter as it pertains to the issues raised in the judicial review application.

23My first involvement in this matter came when I was assigned to conduct a summary hearing into two aspects of the first Application filed by the applicant in this proceeding. By Interim Decision dated October 11, 2013 (2013 HRTO 1725), I found that the applicant has no reasonable prospect of success in establishing that her rights under the Code had been infringed in relation to these two aspects of her first Application, and these two aspects of that Application were accordingly dismissed. One of these allegations (called Complaint #2 in the appendix to the Application) was that the respondents had discriminated against or harassed the applicant because of disability by sending an e-mail to her requesting that she sign a consent for the University to speak with her legal counsel, who is also her husband, about certain harassment allegations the applicant had made against a co-worker. It was alleged that this was discrimination because of disability on the basis of prior correspondence sent by the applicant’s counsel telling the University not to communicate directly with the applicant due to her medical condition. And yet, at around the same time, the University had sent an e-mail to the applicant and the alleged harasser about office arrangements, and no exception was taken to that communication.

24The other allegation that was dismissed (Complaint #3) relates to a deadline imposed by the University for the applicant to submit documents in support of her claim of copyright infringement. Applicant’s counsel requested an extension for reasons related to the applicant’s medical condition at a time when the person dealing with the claim was away from the office. This person granted the extension request as soon as she returned to the office and prior to the expiry of the deadline.

25The applicant then filed a Request for Reconsideration of my Interim Decision dated October 11, 2013, in which she alleged that I was biased. This allegation was dealt with in my Reconsideration Decision dated January 15, 2014 (2014 HRTO 63), in which I stated that, while I appreciated that the applicant does not agree with my decision, I do not see anything in the decision that gives rise to a reasonable apprehension of bias that would disqualify me from determining her reconsideration request.

26The applicant commenced another application before this Tribunal (the “reprisal Application”) on December 4, 2013. By Interim Decision dated November 21, 2014 (2014 HRTO 1687), the reprisal Application was consolidated with the first Application. In that Interim Decision, I also struck certain paragraphs from the reprisal Application that repeated allegations that already had been struck from the first Application. I also invited submissions from the parties regarding delay in relation to one of the issues raised in the reprisal Application and the relevance of certain other allegations in the reprisal Application.

27These issues were addressed in my Interim Decision dated January 28, 2015 (2015 HRTO 125), whereby I dismissed one allegation in the reprisal Application for delay and struck certain further paragraphs from the reprisal Application. In that Interim Decision, I also addressed the applicant’s renewed allegations of a reasonable apprehension of bias (at paras. 6 to 16). Central to this renewed allegation of bias was an allegation that I had lied in my Reconsideration Decision in order to cover up an error I had made in my Interim Decision dated October 11, 2013. This relates to the applicant’s misperception that, in my Interim Decision dated October 11, 2013, I had misunderstood the impugned communication in Complaint #2 to be about office arrangements. As a review of that Interim Decision makes clear, I knew that the impugned communication was about obtaining a consent: see paras. 25-26 and 30-31. The point that I was making was that some communications between the University and the applicant were apparently okay, such as the communication about office arrangements, while others were allegedly not, such as the request for a consent. This is the same point made in my Reconsideration Decision: see paras. 16 to 19.

28In my Interim Decision dated January 28, 2015, I also addressed the applicant’s request either to amend her first Application to allege reprisal in relation to all of her complaints, including the ones that had been dismissed, or to amend her reprisal Application to allege reprisal in relation to all complaints raised in her first Application. I denied this request in relation to the first Application on the basis that no allegation of reprisal had been raised in relation to these complaints in the five years since the first Application had been filed, or at the summary hearing, or on the reconsideration request, and it was too late to try to revive complaints that had been dismissed by now alleging reprisal. I was prepared to allow reprisal to be alleged in relation to the two aspects of the first Application that remain outstanding, but this was subsequently rejected by the applicant. I also held that it would be an abuse of process to allow the applicant to amend her reprisal Application to try to revive complaints that already had been dismissed in the context of her first Application: see paras. 43 to 53.

29This led the applicant to raise yet another allegation of a reasonable apprehension of bias on my part. Central to this allegation was that I had made a “serious error” and had not read the applicant’s first Application, on the basis that reprisal was one of the grounds alleged in the first Application. I had read the first Application on numerous occasions and was fully aware that reprisal was one of the grounds claimed. However, as reviewed at length in my Interim Decision dated February 12, 2015 (2015 HRTO 197) at paras. 2 to 10 and again in my further Interim Decision dated March 4, 2015 (2015 HRTO 257) at paras. 2 to 19, at the time I was first assigned to this matter, the Tribunal understood that the only allegations in the first Application that were being pursued by the applicant were as set out in the Appendix to that Application, which did not include any allegations of reprisal. The only reprisal allegation raised in the first Application arose from a comment alleged to have been made by one of the respondents on August 18, 2009 that the University might shut down the Japanese program. I allowed the applicant an opportunity to confirm whether she was proceeding with this one reprisal allegation, which she subsequently declined.

30The latest allegations of a reasonable apprehension of bias arise from how I have addressed the applicant’s requests for accommodation in relation to the conduct of the hearing. These requests initially were made by way of letter from the applicant’s counsel. I issued a CAD on December 24, 2014 advising that medical documentation was required to support these requests. In accordance with the Tribunal’s general practice, medical documentation in support of accommodation requests regarding the conduct of the hearing do not need to be served on the opposing party; although, if the accommodation request by its nature has a material impact on the opposing party, a summary of the nature of the request and an opportunity to respond will be provided. Following this general practice, the applicant filed two letters signed by her doctor requesting certain accommodations, including the relocation of the hearing to Toronto and a later start time for the hearing on the days that the applicant was scheduled to testify. These accommodation requests were granted by me.

31The applicant then sought to provide further medical documentation to the Tribunal in support of a request for the adjournment of the hearing for medical reasons, without serving this material on the respondents. This was not an accommodation request in relation to the conduct of the hearing. In accordance with the Tribunal’s general practice, adjournment requests for medical reasons need to be made on notice to the opposing party and the opposing party is entitled to be provided with a copy of the medical documentation provided in support of the request. The applicant was informed of this practice, and provided her request and supporting medical documentation to the respondents. As discussed above, having reviewed the medical documentation and in light of the respondents’ objection to the adjournment request, I determined that a conference call was required to obtain further information from the applicant’s doctor with an opportunity provided to respondent counsel to test the doctor’s recommendation through cross-examination. This led to the doctor’s refusal to participate in the conference call, and the applicant’s decision not to compel the doctor’s participation. In my view, there is nothing here that gives rise to any allegation of a reasonable apprehension of bias.

32Another allegation that has been raised arises from the Tribunal’s acceptance of a first letter signed by the applicant’s doctor which was not on the doctor’s letterhead, and my insistence that any subsequent letters from this doctor be on the doctor’s letterhead and be in the doctor’s own words. I will note that it is highly unusual for a doctor’s letter to be filed which is not on the doctor’s letterhead. Further, the nature and content of the letter gave rise to a concern on my part that, while the doctor may have signed the letter, the doctor himself may not have composed the letter, which raises a potential issue as to the true independence of the views and recommendations expressed in the letter. This is yet another issue that could not be explored as a consequence of the doctor’s refusal to participate in a conference call, and the applicant’s decision not to compel his participation.

33In the judicial review application, the applicant alleges that I am in a conflict of interest in this matter on the basis that “in [my] interest to save [my] career involves prejudicing it not trying to destroy the applicant in order to cover [my] bias and gross negligence or try to make it appear as inconsequential”. In my view, and having addressed the applicant’s allegations of a reasonable apprehension of bias and conflict of interest at length in numerous decisions, the bias and conflict of interest grounds alleged in the application for judicial review are without merit and properly can be regarded as frivolous and vexatious. In reaching this conclusion, I also have been mindful of the observations made by the Divisional Court in relation to two previous judicial review applications pursued by the applicant, as follows:

In dismissing the 2011 Application for Judicial Review, our colleagues stated:

Counsel for the applicant is also her husband. Although he may have been well intentioned, in our view he exercised poor judgment in making many of his submissions to us and in purporting to give evidence to support submissions that were unsupported by the evidence. We consider that his performance was a shining example of why one should avoid acting for or retaining one's spouse. Nevertheless, we listened to all of the submissions that he and counsel for the university made, considered all of the material before us and we deliberated at length before deciding not to intervene.

Similar observations were also made by Justice Little in his endorsement. He concluded by remarking that "My admonition fell on deaf ears".

At a time when justice resources are scarce and courts and tribunals attempt to "do more with less", this continued, quixotic pursuit of a meritless claim damages the administration of justice and not only must be stopped, but also must be rebuked so as to ensure that other matters deserving of time and effort are able to receive adjudication. As such, we decline to exercise our discretion to consider this matter.

See Taucar v. Ontario (Human Rights Tribunal), [2014] O.J. No. 1324 at paras. 18-19.

34I also note that in her previous judicial review applications, the applicant alleged that the person who conducted the investigation into her harassment allegations was biased, which allegation was strongly rejected by the Divisional Court in its decision in the second judicial review (Taucar v. Ontario (Human Rights Tribunal), [2014] O.J. No. 1324). I also note that, despite the fact that this Tribunal’s decision dismissing another previous application by the applicant was upheld by the Divisional Court, the applicant has taken the position that the Vice-chair who made that decision also was and is biased and should not be assigned to preside over this proceeding. In my view, the repeated raising by the applicant of unsupported bias allegations against a variety of individuals, including myself, supports a finding that the nature of the bias and conflict of interest allegations raised in the current judicial review application are frivolous and vexatious.

35In addition to the bias and conflict of interest allegations, the applicant also alleges in the judicial review application that my decisions are incorrect and unreasonable, apparently on the basis of an allegation that I substituted my own standard of reasonableness in place of the Code’s requirement for a respondent to provide accommodation short of undue hardship. This allegation arises out of my Interim Decision dated October 11, 2013, in which I dismissed two aspects of the first Application and was raised by the applicant in her reconsideration request. As explained in my Reconsideration Decision dated January 15, 2014, before getting to the defence of undue hardship, the applicant needs to establish discrimination because of disability in respect of employment. In the context of the accommodation of a disability, this includes being able to establish that a request for accommodation because of disability was made and that the respondent failed to act in compliance with that request. It is at this stage of the analysis that I found the applicant had failed to establish a reasonable prospect of success, on the basis of the lack of clarity regarding the kind of communications with her that would or would not be permissible in accordance with her accommodation request: see paras. 20-21. Accordingly, I find that this basis for the judicial review application also is without merit.

36Finally, the judicial review application also alleges institutional bias arising out of the fact that I was assigned to consider the reconsideration requests made by the applicant in relation to my own decisions. This issue already has been determined by the Divisional Court in Landau v. Ontario (Minister of Finance), 2012 ONSC 6926, in which the Court stated (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”.

37Accordingly, I find that the applicant has not satisfied me that there is a serious issue to be determined on judicial review as required by the first part of the test for granting a stay. Even if the applicant could establish the existence of a serious issue to be determined, she must also establish that she has met the other two branches of the test for a stay.

38The next part of the test requires that the applicant establish that she will suffer irreparable harm if the stay is not granted. I find that the applicant also has not satisfied this aspect of the test. If the stay is not granted, the hearing in this matter will proceed as scheduled and I will hear the evidence and determine the issues before me. If the applicant is not satisfied with the result, she has the right to file a Request for Reconsideration regarding any final decision that may be issued in this matter. If she is still not satisfied, she would then have an opportunity to pursue judicial review proceedings if she so chooses. In this context, she would be free to raise whatever issues she may choose, including any bias allegations. Proceeding in this manner would avoid the fragmentation of this proceeding and further delay in an already long-delayed proceeding, and would not result in any irreparable harm to the applicant.

39Finally, I find that the applicant also has not satisfied me that the balance of convenience favours granting a stay in these circumstances. As previously noted, the events at issue in this proceeding date back some five years now. I have commented upon this delay in my previous decisions, as has the former Associate Chair in an Interim Decision dated May 13, 2013 (2013 HRTO 798). This proceeding already has been delayed by some 15 months as a result of the applicant’s pursuit of a previous unsuccessful judicial review proceeding that was taken all the way to a denial of leave to appeal by the Supreme Court of Canada, which delayed this proceeding from the Interim Decision dated March 18, 2011 granting the deferral (2011 HRTO 550) until the Interim Decision reactivating this proceeding on June 29, 2012 (2012 HRTO 1300). The applicant’s attempt to further defer this proceeding pending her pursuit of a second judicial review application, which also to date has been unsuccessful and also has been taken to the point of seeking leave to appeal to the Supreme Court of Canada, was denied by the former Associate Chair’s Interim Decision dated May 13, 2013. I note that this second judicial review application was filed in June 2013. It was heard by the Divisional Court on March 19, 2014, and was dismissed with reasons on March 20, 2014 and merited an award of substantial indemnity costs against the applicant by order dated June 26, 2014. Leave to appeal from this decision was denied by the Court of Appeal, and an application for leave to appeal to the Supreme Court of Canada was filed by the applicant in January 2015 and remains pending. In all, it is now close to two years since the applicant’s second judicial review application was filed and it still has not been finally determined. Granting a stay for the purpose of allowing the applicant to pursue yet a third judicial review application would result in yet a further delay in this proceeding of between 15 months and two years, which in my view would not accord with this Tribunal’s statutory mandate to endeavour to deal with the matters before it expeditiously. In this regard, I need to be mindful of the rights of all parties to an expeditious hearing and determination of this matter, including the respondents who have been facing these allegations without a hearing for some considerable period of time now.

40For all of these reasons, the applicant’s request for a stay of this proceeding pending the hearing and determination of her application for judicial review is denied.

Next Steps

41The hearing will commence as scheduled on May 4 and 7, 2015, commencing at 12:00 p.m. in Toronto to hear the applicant’s testimony, and will continue in London on June 10, 11, 12 and 30, 2015, commencing at 10:00 a.m. each day.

ORDER

42For all of the foregoing reasons, I hereby make the following order:

a. The applicant’s request for the adjournment of the hearing in this matter for medical reasons is denied; and

b. The applicant’s request for a stay of this proceeding pending the hearing and determination of her application for judicial review is denied.