A.B. v. University of Waterloo, 2017 HRTO 946

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.B.

Applicant

-and-

University of Waterloo

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: July 26, 2017

Citation: 2017 HRTO 946

Indexed as: A.B. v. University of Waterloo

APPEARANCES

A.B., Applicant

Self-represented

University of Waterloo, Respondent

Darrell Hawreliak, Counsel

Introduction

1This is a contravention of settlement application in which the applicant alleges that the respondent contravened terms of a Minutes of Settlement (“MOS”) reached between the parties on March 8, 2016.

2As part of the contravention of settlement application, the applicant alleged that there was a reasonable apprehension of bias by the adjudicator who conducted the mediation which resulted in the MOS. The mediation was held as part of the Tribunal’s standard mediation/adjudication process, which I will refer to in this decision as the mediation.

3I issued a Case Assessment Direction, dated October 11, 2016, in which I directed a preliminary hearing to determine the issue of whether the applicant had sufficient evidence to demonstrate that the mediator was biased against her during the mediation, and if so, what the remedy for that bias should be. The preliminary hearing took place on May 15, 2017. This is my decision with respect to this preliminary issue.

4The applicant sent the Tribunal an e-mail, dated June 19, 2017, in which she included not only an inquiry into why she had not yet received my decision, but in which she also set out various other arguments and evidence with respect to the bias issue. I have not considered those in reaching this decision.

Legal Principles

5The test for reasonable apprehension of bias 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.” Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC) at p. 394. See also Landau v. Ontario (Finance), 2012 ONSC 6926.

6In considering allegations of bias, Courts have consistently applied a strong presumption of adjudicative impartiality. As the Tribunal said in Taucar v. University of Western Ontario, 2015 HRTO 125:

The threshold for a finding of real or perceived bias is high. Mere suspicion is insufficient to support an allegation of bias. Rather, a real likelihood or probability of bias must be demonstrated. There is also a strong presumption in favour of the impartiality of an adjudicative decision-maker: Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856 at paras. 24, 27.

7While the challenge here is to the conduct of an adjudicator in the course of a mediation, the test and the presumption remain the same. The applicant must show a real likelihood of bias/loss of impartiality. That question is distinct from any issues of dissatisfaction with the content of the settlement.

decision

8The applicant made numerous allegations about the Vice-chair's conduct during the mediation. It is significant, however, that she did not raise these concerns immediately or even shortly after the mediation. Her witness, Dr. Morgan, who was present on the day in question, confirms the applicant said nothing to her at the time of the mediation. Rather, her concerns were first articulated six months later as part of the contravention of settlement application. In the circumstances, the timing of the allegations casts doubt on their reliability.

9The applicant argues the Vice-chair bullied and coerced her into the settlement and this is evidence of bias or a lack of impartiality. In support of this argument she claims the Vice-chair told her the mediation was mandatory and that she must continue with the mediation.

10I cannot accept these allegations. It is inconsistent with the applicant's admission in cross-examination that she knew she could leave the mediation at any time. On the applicant's own evidence she appears to have been fully engaged in the mediation process and the creation of more than one draft minutes of settlement. Further, these statements are completely inconsistent with the HRTO's mediation and mediation/ adjudication process.

11The applicant suggests the inclusion of a standard "no admission of liability" clause in the MOS is proof of the Vice-chair's bias and she is unhappy with the wording of the Minutes. She agrees she communicated these concerns at the time and signed the MOS despite them because she wanted to finish her Master’s degree. That was the bargain achieved in the settlement. I am unable to accept these allegations in any way support a reasonable apprehension of bias.

12The applicant also alleges she was not permitted to talk to her government official pursuant to the MOS which included the following term:

The applicant will send one email only to any and all individuals she has previously emailed at any and all government entities with respect to this Application, including the Information and Privacy Commission of Ontario, the Ontario Provincial Parliament and the Federal Parliament of Canada, to indicate that this Application is resolved.

Again I see no connection between this agreement and the suggestion that the Vice-chair displayed a reasonable apprehension of bias.

13I understand the Vice-chair may have appeared frustrated to the applicant over the course of a lengthy mediation and that she may have tried to explain the respondent's position or the downsides of failing to resolve the dispute in terms which the applicant found upsetting or insulting. But, given the strong presumption of impartiality, I am unable to find that the applicant's allegations meet the high threshold required to support finding a reasonable apprehension of bias.

14In addition the applicant alleged the Vice-chair was biased because later the applicant found out she did not have to sign the form the Vice-chair told her she had not signed [to get accommodation], and also found out that a white friend of hers had her past marks erased while the Vice-chair had told the applicant, who is not white, that was not possible. Again, neither of these indicates bias. The Vice-chair’s role is to communicate information and assist the parties to resolve a case through mediation, if possible. It is very likely that the information the Vice-chair shared with the applicant was from the respondent. It is also highly likely that it was accurate in the applicant’s circumstances. What occurred to someone else in different circumstances has nothing to do with bias against the applicant by the Vice-chair.

15Finally, the applicant alleged the Vice-chair has a relative who works at the respondent. Even if this person is a relative, and there was no evidence she is, this is not an indication of any bias.

order

16The applicant’s allegations of bias by the Vice-chair are dismissed.

17The contravention of settlement application will be set for a full-day hearing and a Notice of Hearing will be sent to the parties.