Court File and Parties
COURT FILE NO.: 269/07 DATE: 2007-10-30 SUPERIOR COURT OF JUSTICE - ONTARIO DIVISIONAL COURT
RE: ANTHONY COOTE Applicant (Respondent on Motion)
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ZELLERS, HBC, BOARD OF DIRECTORS, BILL WARD, CHRIS LUCKY, GORD CAMPBELL, SEAN MACDONALD, THOMAS HAIG, BRENDA LANG, DEBBIE FORD, LINA BARBOSA, GARY KLESSEN, VICE PRESIDENT OF HUMAN RESOURCES, all persons at the retreat, et al. Respondents
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ONTARIO HUMAN RIGHTS COMMISSION, BARBARA HALL, KEN NORTON, ROXANNE KALIMOOTOO, NANCY AUSTIN, NEIL EDWARDS, PART TIME COMMISSIONERS, DINA WAIK, SHANNON LEE-MEADOWS, et al Respondents (Applicants on Motion)
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HER MAJESTY THE QUEEN, MR. MICHAEL BRYANT, PREMIER MCGUINTY, DEPUTY ATTORNEY GENERAL (MURRAY SEGAL), PROVINCE OF ONTARIO, et al. Respondents (Applicants on Motion)
BEFORE: HIMEL J.
COUNSEL: Anthony Coote, representing himself Sharon Folkes Abrahams, representing the Ontario Human Rights Commission et al. Amy Leamen, representing Her Majesty the Queen et al. Rachel A. Turnpenney, representing Zellers Inc. et al.
ENDORSEMENT
[1] Anthony Coote brought an application for judicial review of the decisions of the Ontario Human Rights Commission not to refer his complaint to the Tribunal for a hearing and dismissing his complaint alleging discrimination based on race under the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended. The Ontario Human Rights Commission moves for an order to strike out this application as against a number of the named parties, striking out the affidavit of Anthony Coote, striking out all claims except the claim for setting aside the decisions of the Commissioners and striking out documents in the application record. Counsel acting on behalf of Her Majesty the Queen brings a motion to strike out this application as against the Crown respondents on the basis that they are not proper parties and there no grounds as set out or relief claimed against them which can properly be the subject of judicial review proceedings.
FACTUAL BACKGROUND:
[2] Anthony Coote filed a complaint with the Commission on March 8, 2004 alleging breaches of the Code by his former employer Zellers Inc. Commission staff investigated the complaint and prepared a report entitled "Case Analysis". That document was provided to the Commissioners to decide whether to refer the matter to the Human Rights Tribunal of Ontario. Mr. Coote submitted a nineteen page response to the Case Analysis. Zellers responded to the Case Analysis. The Commission considered the matter and decided under section 36(2) of the Code not to refer the matter of the complaint to the Tribunal. Mr. Coote filed an application for reconsideration. Zellers made submissions and the staff prepared a reconsideration report. The Commissioners decided under section 37 to uphold their decision not to refer the matter of the complaint to the Board of Inquiry. Mr. Coote applied for judicial review of these decisions of the Commission.
[3] In the application for judicial review, Mr. Coote named Barbara Hall, Chief Commissioner, Ken Norton (Keith Norton) former Chief Commissioner and others who are part-time Commissioners or employees of the Commission. He also named Her Majesty the Queen, Michael Bryant, Premier McGuinty, Deputy Attorney General (Murray Segal) and the Province of Ontario as respondents. Mr. Coote seeks an order setting aside the decisions of the Commission and for injunctive and declaratory relief. The notice of application refers to breaches of the Code, the Charter of Rights and Freedoms and the Employment Equity Act.
POSITIONS OF THE PARTIES:
[4] Counsel for the Commission argues that the names of persons listed as respondents in the application for judicial review should be struck by this court. The Divisional Court has jurisdiction to hear an application for judicial review of a statutory power of decision. Only the Commission can exercise a statutory power under section 36 and 37 and none of the individuals can exercise a statutory power of decision.
[5] Furthermore, she argues that the material filed by Mr. Coote should be struck because it was not before the Commission when it made its decision.
[6] Counsel for the Crown respondents takes the position that the respondents named are not proper parties to the application in that they did not take any decision or action affecting the applicant's rights or liabilities and do not exercise a statutory power of decision. The application does not identify any grounds or relief for determination in judicial review proceedings.
[7] In responding to the motions to strike, Mr. Coote submits that the individuals named should be parties to the application for judicial review because they are responsible in law for the decisions of the Commission. He also urges that all the evidence contained in his affidavit be before the court on the judicial review.
JURISDICTION OF THE COURT TO HEAR THE MOTIONS:
[8] Under section 21(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, this court has jurisdiction to hear a preliminary motion and decide an issue before holding a hearing on the merits. In the case of Martin v. Ontario [2004] O.J. No. 2247, Nordheimer J. considered the Rules of Civil Procedure and concluded that a motions judge sitting alone in the Divisional Court may strike out inappropriate material filed on an application in the same manner as material is struck in actions. This authority was also noted by Lane J. in the case of Coote v. Assante Corporation et al. and the Ontario Human Rights Commission and Her Majesty the Queen et. al. (heard Div. Ct. March 21, 2007 and released May 14, 2007) and upheld by the Divisional Court panel on October 19, 2007. I agree with my colleagues that this court has authority to hear a preliminary motion in order to ensure that relevant materials are before the panel at the application for judicial review.
THE COMMISSION'S MOTION TO STRIKE THE NAMED COMMISSIONERS AND EMPLOYEES:
[9] Under section 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, the Divisional Court may grant prohibition or certiorari under section 2(1)1. or declarations or injunctions under s. 2(1)2 regarding the "exercise, refusal to exercise or proposed or purported exercise of a statutory power." Section 1 defines a statutory power as follows:
A power or right conferred by or under a statute,
(a) to make any regulation, rule, by-law or order, to give any other direction having force as subordinate legislation,
(b) to exercise a statutory power of decision,
(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,
(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party.
[10] Section 1 also defines "statutory power of decision" as:
A power or right conferred by or under a statute to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether he is legally entitled thereto or not, and includes the powers of an inferior court.
[11] The Commission itself is a statutory body which is subject to the JRPA. I accept Commission counsel's submission that Commissioners or employees are not proper parties to a judicial review. This issue was canvassed fully by Lane J. in the case of Coote v. Assante Corporation et al. supra, where he said at para. 25 as follows:
Section 27 of the Human Rights Code constitutes the Commission and makes it responsible to the Minister for the administration of the Act. Sections 36 and 37 deal with the powers of the Commission to refer or not to refer the complaint to the Tribunal. These sections confer this power on the Commission, not on its individual members or employees.
It follows that the statutory power of decision which can be reviewed in this court, is that of the Commission. None of the Commission employees possesses such a power, nor do the Commissioners as individuals. They only possess the power as the Commission. Similarly, the common law remedy of certiorari, now a part of the court's judicial review jurisdiction, was directed to those who made the decision.
[12] I agree with Justice Lane's views that none of the named respondents from the Commission exercised as individuals the power of decision that is the subject of the judicial review. That view was upheld by the Divisional Court panel which commented that all aspects of his order were "unassailable and well founded both in the record before him and at law." The Commission is the correct party to the proceeding and the application is quashed as against the other named members or staff of the Commission.
THE MOTION TO STRIKE THE AFFIDAVIT:
[13] In this case, in addition to filing an application for judicial review, the applicant filed an affidavit attaching numerous documents to support his position. The documents include a great deal of correspondence, e-mails, statements, reports and decisions, some of which are duplicates of materials already before the court. The Commission counsel moves to strike that affidavit and exhibits from the record as they were not before the Commission when it made its decision.
[14] On an application for judicial review, the Divisional Court is to consider the Tribunal's decision based on the record that was before the Tribunal: see: Campbell v. Ontario (Human Rights Commission) [2004] O.J. No. 530 (Ont.Div.Ct.); Miansowski v. Ontario [Human Rights Commission) [2003] O.J. No. 3790 (Ont.Div.Ct.); Ontario Hydro v. Ontario (Assistant Information and Privacy Commissioner) [1996] O.J. No. 4196 (Ont.Div.Ct.); Lincoln County Board of Education v. Ontario (Information and Privacy Commissioner), [1994] O.J. No. 2899 (Ont.Div.Ct.).
[15] The applicant is seeking to quash two decisions of the Commission: one made under section 36 and one made under section 37 of the Code. Under section 10 of the JRPA, an agency, board or tribunal is required to file with the court for use on the application the "record of the proceedings in which the decision was made" when a notice of application for judicial review is served. In this case, the Commission filed the "record of proceedings", including all the materials that were before the Commissioners in making those decisions.
[16] The affidavit of the applicant and the various attachments were not before the Commission and are not admissible to challenge the findings of the Tribunal. Affidavit evidence is only admissible in exceptional circumstances, for example, to show a jurisdictional error: see Re Keeprite Workers' Independent Union et al. and Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.); Re Securicor Investigations & Security Ltd. and Ontario Labour Relations Board et al. (1985) 1985 1978 (ON SC), 50 O.R. (2d) 570 (Div.Ct.). In this case, no question of jurisdiction arises as the Commission's determination of whether the evidence warrants a referral to the Tribunal is one that falls within its jurisdiction.
[17] The applicant's affidavit material sets out his opinions as to whether the evidence supports the referral of his complaint to the Tribunal and, for the most part, consists of argument. The Divisional Court has held that the standard of review of the exercise of discretion by the Commission is patent unreasonableness: see Gismondi v. Human Rights Commission (2003) 169 O.A.C. (Div.Ct.). Extrinsic evidence is not admissible to question whether the Tribunal's decision is patently unreasonable. The argument of the applicant should not be contained in affidavits filed in support of the application for judicial review. Argument is properly contained in a factum. Accordingly, the affidavit of the applicant which includes attachments must be struck from the record.
THE MOTION TO STRIKE THE NAMED CROWN RESPONDENTS:
[18] In his application for judicial review of the decision of the Commission not to refer his complaint to a hearing, Mr. Coote has named various Crown respondents. As discussed above, the Divisional Court has the authority to review and grant relief regarding the exercise, refusal to exercise, or proposed or purported exercise of a statutory power of decision. The Crown respondents have not exercised any statutory power in the proceedings under the Code. The applicant has included the Crown respondents because of an alleged "supervisory jurisdiction" over the Commission and a responsibility to ensure compliance with legislation including the Charter of Rights and Freedoms. The Crown respondents were not parties to the complaints before the Commission. They made no decisions and had no role to play in the proceedings. Furthermore, claims made about breaches of proposed amendments to the Code and to the Charter are not relevant to the question of judicial review.
[19] Mr. Coote has not been able to demonstrate any basis for allowing the application for judicial review to name the Crown respondents as parties to the application. For these reasons, the motion to strike the Crown respondents is granted. The application against them is quashed and they are removed as parties to the application.
RESULT:
[20] For the reasons outlined, the motion by the Commission to strike the named parties from the application is granted. The affidavit of Anthony Coote and the attached exhibits is struck from the record. The motion to strike the named Crown respondents as parties to the application is granted. Costs of these motions are reserved to the panel hearing the application for judicial review.
HIMEL, J.
DATE: 2007-10-30