ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, LAX AND SWINTON JJ.
B E T W E E N:
SHERREE CYBULSKI and JIM DUNCAN Applicants
- and -
THE ONTARIO HUMAN RIGHTS TRIBUNAL, THE ONTARIO HUMAN RIGHTS COMMISSION, MICHAEL MCKINNON, MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES (FORMERLY MINISTRY OF CORRECTIONAL SERVICES) and THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION Respondents
Counsel: P. A. Neena Gupta and Michelle D. MacGillivray, for the Applicants James C. Morton, for the Tribunal Kate Hughes and Crystal Stewart, for Michael McKinnon M. Kate Stephenson, for the Ministry of Community Safety and Correctional Services
HEARD at Toronto: November 10, 2005
Oral Reasons for Judgment
CARNWATH J.: (Orally)
1The application for an Order in the nature of certiorari is denied. We find it premature.
2This Court has said on many occasions that it should not intervene in the administrative process of a Tribunal before it completes a hearing, absent unusual circumstances. Such interventions inevitably interrupt ongoing hearings. In the event the final decision leads to a negative result for the applicants in this matter, they retain their rights and remedies. See Ontario College of Art v. Ontario (Human Rights Commission) (1993) 1993 3430 (ON SCDC), 11 O.R. (3d) 798 at pages 799-800 and Ford Motor Company of Canada v. Ontario (Human Rights Commission), 1995 7431 (ON SC), [1995] O.J. No. 4292 (Div. Ct.) at para. 5.
3Several factors persuade us there are no unusual circumstances that would prompt us to intervene. They are as follows:
4In 1998, the Ministry was found liable for “a poisoned atmosphere in the workplace”. The matter before the Tribunal and before us deals only with the implementation of orders since made against the Ministry. The Tribunal has stated there is no possibility the Tribunal will find the applicants have infringed the Human Rights Code. Mr. McKinnon has endured a long process and will continue to do so. Almost two years ago, this Court referred to this matter as a “unique situation in which outrageous discrimination continued unabated for a period of approximately fifteen years and in which the Tribunal’s original remedial orders appear to have been, at least in part, subverted.”
5The Tribunal has heard twelve days of evidence consisting of eleven witnesses and ninety-seven exhibits. The applicants seek to recall and examine those witnesses where deemed appropriate.
6The Ministry, a party to the proceedings, has similar interest to those of the applicants, if not exactly the same. It appears the Ministry will call them as witnesses and has already cross-examined witnesses on matters of interest to them.
7Non-parties whose conduct is raised at evidence in trials and in administrative proceedings are not entitled as a right to party standing. We find a statement by our Court of Appeal to be particularly apt in the circumstances of this case. See Hurd v. Hewitt (1994), 1994 874 (ON CA), 20 O.R. (3d) 639 (Ont. C.A.), para. [28]:
The practical consequences of any other conclusion would be chaotic. The Tribunal cannot know at the outset what evidence may be relevant to the ultimate reasons. Everytime an aspersion is cast at any person, the Tribunal would have to assure itself that the person is warned and given an opportunity to respond. The allegation might arise from the evidence of the last of the series of witnesses and be cast against earlier witnesses and others. This would mandate recalling those witnesses and calling others or imposing upon the Tribunal the obligation to ignore what may be very cogent evidence.
Taking it a step further, judgment might be reserved and upon reflection, the Tribunal might determine that a particular segment of evidence is essential in the reasoning. The hearing would have to be re-constituted if that evidence involved misconduct in someone’s part and the allegation had not been put to that person. Alternatively, essential evidence would have to be ignored.
8The foregoing matters to which I had referred are those reasons which persuade us that there are no unusual circumstances that would require us to intervene in the mid-course of the hearing of the adjudicator.
9The parties have 15 days to make brief written submissions as to costs.
CARNWATH J.
LAX J.
SWINTON J.
Date of Reasons for Judgment: November 10, 2005
Date of Release: November 28, 2005
COURT FILE NO.: 400/05
DATE: 20051110
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, LAX AND SWINTON JJ.
B E T W E E N:
SHERREE CYBULSKI and JIM DUNCAN Applicants
- and -
THE ONTARIO HUMAN RIGHTS TRIBUNAL, THE ONTARIO HUMAN RIGHTS COMMISSION, MICHAEL MCKINNON, MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES (FORMERLY MINISTRY OF CORRECTIONAL SERVICES) and THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION Respondents
ORAL REASONS FOR JUDGMENT
CARNWATH J.
Date of Reasons for Judgment: November 10, 2005
Date of Release: November 28, 2005