SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Anthony Coote, Applicant;
-and-
Assante Corporation, et al, Respondents;
-and-
Ontario Human Rights Commission, et al., First Co-Respondents;
-and-
Her Majesty the Queen, Michael Bryant, et al., Second Co-Respondents;
HEARD: March 2, 21, 2007
BEFORE: Lane, J.
COUNSEL: Anthony Coote in person; Adrian Miedema and Naomi Horrox for the Respondent Assante Corporation; Sharon Ffolkes Abrahams for the First Co-Respondents; Amy Leamen for the Second Co-Respondents.
E N D O R S E M E N T
1I have before me motions brought by the applicant and by the respondent parties to a judicial review application now pending in this court. In the judicial review, Mr. Coote seeks to review the decision of the Ontario Human Rights Commission (“Commission ”) not to refer his complaint against Assante Corporation to the Tribunal for a hearing. In addition to the Commission and Assante Corporation, he has named as respondents a number of Assante employees, who are listed as respondents; a number of persons employed by the Commission, who are listed as the First Co-Respondents; and the Crown, the Attorney-General, the Premier, the Deputy Attorney General and the Province of Ontario, who are listed as the Second Co-Respondents.
2The Second Co-Respondents, who will be referred to as the Crown respondents, move to quash the application on the basis that they are not proper parties to it; that no grounds are set out or relief claimed against them which can properly be the subject of judicial review proceedings; and that the applicant’s complaints about recent amendments to the Human Rights Code are beyond the jurisdiction of the Divisional Court.
3The First Co-Respondents, who will be referred to as the ‘Commission employees’ move to strike the application against them on the grounds that they do not exercise a statutory power of decision and the relief sought, damages in tort, cannot be granted by this court. They also move to strike the affidavit of Mr. Coote because the evidence was not before the Commission when it reached its decision; to admit it would be an abuse of process; much of it is irrelevant and other related grounds. The Commission seeks the dismissal of all claims except for the claim to judicially review and set aside the decision not to send the applicant’s complaint to a hearing.
4Assante Corporation moves to strike the claims against it other than the claim to quash the Commission’s decision not to send the applicant’s complaint to a hearing; to strike the affidavit of the applicant; and to strike the names of all the Assante respondents except those who were parties before the Commission.
5The applicant moves for a wide variety of additional information said to be required for the hearing of the Application, for contempt orders, for orders striking the names of the solicitors for the respondents from the record, for the dismissal of the respondents’ motions and other relief.
6At the opening of the hearing, a point arose as to the status of the Assante respondents other than Assante itself. Mr. Miedema stated that he appeared for Assante Corporation only and that there was no service upon any of the individual respondents. Mr. Coote took vigorous exception to this, asserting that the firm of Fraser Milner Casgrain had received the application on behalf of all Assante respondents. I ruled that there was no evidence before me to show that the firm had accepted service on behalf of any of the Assante respondents, other than Assante itself, or that they had been served personally. That the firm acted for the listed persons other than Assante before the Commission does not mean that it necessarily acts for them in this proceeding. Unless the firm formally accepted service on their behalf, it was, and remains, incumbent on the applicant to serve them personally.
7The basic facts are readily stated. Mr. Coote was engaged by the respondent corporation, as a temporary contract employee, for the 2003 RRSP season from January 20, 2003 to April 18, 2003. He was dismissed on March 14, 2003. He complained in May 2003 that his termination was motivated by considerations of his race, colour and ancestry. In a Case Analysis Report of April 20, 2005, the staff of the Commission reported that there was insufficient evidence to support the complaint and recommended that the Commission not refer the complaint to the Human Rights Tribunal. The Commission accepted this advice and declined to refer in a decision dated July 26, 2005. A reconsideration was conducted at the request of the applicant pursuant to section 37 of the Code, but on October 25, 2006, the Commission decided to uphold its original decision. The Application for Judicial Review was launched on December 27, 2006.
8The Application seeks an order:
“setting aside the decisions (quashing orders or certiorari) of the former Chief Commissioner, Ken Norton and Barbara Hall, present Chief Commissioner of the Ontario Human Rights Commission, as well as the decisions of the unknown part-time Commissioners that adjudicated on this case, and to substitute the decision of the Divisional Court and award damages; alternatively, grant damages and have the case sent to an independent Tribunal for the following reasons:”[statement of reasons omitted]
9The reasons for seeking this order are set out at considerable length. For present purposes it is enough to observe that they include allegations of abuse of process, “acting perversely”, abuse of public office, “administrative bullying”, errors of law and of fact, the giving and receiving of “improper legal advice”, surrendering independence by delegating legal advice to outside counsel, “collateral negligence, contributory deceit, and contributory negligence of the Deputy Attorney General and Attorney General”, nepotism, discrimination, undue delay, negligent preparation of the Case Analysis, “breach of common humanity” and a host of others, some known to the law and many not.
10It is apparent that many of these claims go well beyond the scope of a judicial review of the decision not to send the applicant’s complaint to the Tribunal.
11In addition, the applicant seeks damages from the Commission, from the Crown and from Assante on a wide variety of common law and equitable bases.
Jurisdiction
12A motion judge of this Court has authority to dismiss or strike the application prior to a full hearing on its merits pursuant to section 21(3) of the Courts of Justice Act. In Martin v. Ontario [2004] O.J. No. 2247, Nordheimer J. discussed the point and concluded that Rules 14.09, 21.01 and 25.11 authorize a motion judge in the Divisional Court to strike out inappropriate material filed on an application in the same manner as is done in actions. I agree with this reasoning and rule that, as submitted by the Crown, where a respondent to an application raises an issue concerning the jurisdiction of the court to hear the application and/or grant the remedy sought, that issue may be raised by way of preliminary motion, and the court has authority to hear and decide the issue before any hearing on the merits. In my view, this is an appropriate case in which to exercise this power to ensure, so far as possible, that the issues and materials are confined to that which is relevant to the issues that will be before the panel.
The Crown Motion
13The Crown respondents bring this motion on the basis that they are not proper parties to this application. The Crown respondents submit that this application does not identify any grounds or relief appropriate for determination in judicial review proceedings. The only relief sought against them is damages in tort and the Divisional Court does not have the jurisdiction to grant damages in tort on an application for judicial review. They also submit that the applicant’s complaints about recent amendments to the Human Rights Code are similarly not properly the subject of an application for judicial review, as enacting legislation is not a statutory power of decision. It is also noted that the amendments set out in the Human Rights Code Amendment Act 2006, SO. 2006 c. 30, postdate the complainant’s application, and the commission’s decision. The amendments are therefore irrelevant.
14In my view, the claims based on the amendments to the Code enacted by the amending Act of 2006 cannot be relevant to the decision not to refer the complaint of the applicant to the Tribunal. The amendments were not in effect at the relevant time. How these amendments came into being, whether there was adequate consultation with minority groups, what the motives of the government were, the alleged failure of the government to implement the findings of the Cornish Report and the La Forest Report, whether the changes were the subject of much criticism, all as set out in the applicant’s factum, particularly paragraphs 20, 24 and 42, are similarly not relevant to the decision under review.
15Similarly, the alleged defects in the appointment process whereby Mr. Norton and afterwards Ms. Hall were appointed as Chief Commissioner, the alleged lack of transparency, inappropriate background, and the like, have no relevance to the decision under review, other than the argument that if better qualified people had been appointed, the decision might have been different. That submission cannot prevail because the court accepts the expertise of the persons appointed to these positions and accords deference to their decisions as office-holders, not as individuals. I was pressed in argument by Mr. Coote to review the decision of the Cabinet to appoint these persons, but it is no part of the jurisdiction of this court on a judicial review of the decision of an office-holder to conduct such an inquiry. These matters are therefore irrelevant in this proceeding.
16The Crown respondents submit that this court has no jurisdiction to award damages for torts in a judicial review. They rely on Chol v. York University [2004] O.J. No. 1093, where this court dealt with a judicial review of the refusal of the Commission to refer Mr. Chol’s complaint to the Board of Inquiry on the basis of insufficient evidence to indicate that the complainant was subjected to unequal treatment on account of race. There was also a claim for damages as to which the court said at paragraph 14:
The Divisional Court has no jurisdiction to give this relief. The Divisional Court is a statutory court restricted to granting the relief set out in s. 2(1) of the Judicial Review Procedure Act. It does not have the jurisdiction to award damages: Khalil v Ontario College of Art (1999) 2000 26985 (ON SCDC), 183 D.L.R. (4th) 186 (Div. Ct.) at pages 188, 190. Section 2(1) restricts the relief to which an applicant for judicial review is entitled to one or more of the following:
(i) Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari; or
(ii) Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise or proposed or purported exercise of a statutory power.
Therefore this court has no jurisdiction to grant the relief sought against the University.
17The limited nature of the Divisional Court’s jurisdiction was emphasized by the Court of Appeal in Re Service Employees International Union and Broadway Nursing Home (1984) 1984 2112 (ON CA), 48 O.R. (2d) 225 (C.A.) and also in Seaway Trust Co. v. The Queen (Ontario) (1983) 1983 1780 (ON SC), 41 O.R. (2d) 501, (Div. Ct.); 532 (C.A.). In the latter case, the Court adopted the dissenting reasons of Craig J. in the Divisional Court and held that the Divisional Court could not deal with the damages claims and was in any event not set up in a manner that would permit it to make the findings of fact which would be necessary in the case, whereas the trial court was. The trial court was the appropriate venue.
18Mr. Coote did not direct me to any authority supporting the right of this court to award damages in connection with a judicial review. With reference to case law generally, he filed, as part of his factum, a number of cases, often from Europe, on human rights subjects, bias, misfeasance in public office and in what circumstances governments may owe a duty of care to those affected by government action or inaction. I reviewed these cases but did not find them helpful on the issues actually before me on these motions and do not intend to refer to them. I make no comment on whether they may be of interest on the hearing of the judicial review itself.
19None of the Crown respondents was the maker of the decision under review. None of them was a party to the proceeding before the Commission. They are not necessary parties to a judicial review of that decision. The claim made against them in the Application is for damages based on the allegations of negligence and other torts summarized above and cannot succeed in this court. I make no comment on raising such a claim in any other forum than this court.
20For these reasons, I allow the motion of the Crown respondents, quash the application as against them and remove them as parties to the application. It follows that those parts of the affidavit of the applicant referring to the issues relating to the Crown or Crown employees are irrelevant and are struck out.
The Commission Employees’ Motion
21The Commission Employees move to strike the application against them on the grounds that they do not exercise a statutory power of decision; and that the relief sought, damages in tort, cannot be granted by this court. They also move to strike the affidavit of Mr. Coote because the evidence was not before the Commission when it reached its decision; to admit it would be an abuse of process, much of it is irrelevant and other related grounds. The Commission itself seeks the dismissal of all claims except for the claim to judicially review and set aside the decision not to send the applicant’s complaint to a hearing.
22The motion succeeds, so far as the damages point is concerned, for the reasons already given.
23The moving parties submit that they did not exercise any statutory power of decision regarding the applicant’s complaint. “Statutory power” is defined in section 1 of the Judicial Review Procedure Act as: 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.
24“Statutory power of decision” is defined in section 1 of the Judicial Review Procedure Act 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.”
25Section 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.
26It 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. As Professor Mullan put it in his text Administrative Law (Toronto, Irwin) at page 408:
Both historically and today, the most common prerogative remedy has been that of certiorari. It called upon a statutory authority to produce the record of its proceedings so that the court could become “more certain” that the authority had not committed a reviewable error in reaching its decision. The consequence of a finding of such an error is the quashing of the relevant decision or order.
27In my view, the Commission employees’ motion must succeed. None of them, including Mr. Norton and Ms. Hall, exercised, as individuals, the power of decision in question. The orders before me were made by the Commission and it is the only appropriate party. The application is quashed as against the Commission employees and they are removed as parties to the application. It follows that those parts of the affidavit of the applicant referring to the issues relating to the Commission employees are irrelevant and are struck out.
Assante’s Motion
28I agree with the submissions of counsel for Assante that the persons named as parties in the Application who were not parties before the Commission are not proper parties. These persons exercised no power of decision under the Code and none will be affected by the decision. The names of Martin Weinberg, Nick Mancini, Eric Stephanson, Bob Dorrell, Bruce Warnock, Tim Pyor, Celia E. Gorlick, the Board of Directors and the phrase “et al” are struck from the title to the Application and wherever else they appear. Again, it follows that the portions of the affidavit devoted to making the case against them are irrelevant and are struck out.
The Affidavit of the Applicant
29The respondents object to the affidavit filed by Mr. Coote. The affidavit extends from page 40 of the Application Record to page 56. There are some 100 additional pages of appendices and 11 numbered tabs of exhibits comprised of approximately 130 pages. In his final submissions, the applicant stated that he was not asking the court to review the internal workings of the Commission, rather he wanted the decision reviewed. Nevertheless, some of the material is correspondence with the Commission demanding to know details of how his case was handled. One example is the letter in Appendix 14 at pages 130-132.
30A lot of the material is correspondence passing between the applicant and various employees of the Commission. In some cases the applicant complains that some material was not before the Commission, even though he asked for the documents to be before it. The Commission position is that the practice of the Commission was not to place every document before the Commission. Rather, the investigators prepared the Case Analysis based on their study. As the complainant received a copy of this document and an opportunity to comment on it, the Commission says the process is fair. It was argued that the documents not put before the Commission, but available to the investigators, may cast light upon the issue of whether the decision not to send the complaint to the Tribunal was arrived at by a fair process. Pages 235 to 255 are the applicant’s detailed response to the Case Analysis. It is largely argument. Tab 13 is a similar submission relating to the reconsideration process. As all these documents are largely argument, these points can be made without putting them in affidavit form as if they were evidence.
31Some of the material is newspaper and similar articles which do not have any relevance to the issue of patent unreasonableness. Pages 65 through 70 and the contents of tab 5 fall into this category. They have no place in the record unless they were before the Commission or its staff: see Ontario Federation of Anglers & Hunters v Ontario (MNR), (2001) 2001 40267 (ON SCDC), 196 D.L.R. (4th) 367.
32One of the documents is a witness statement taken from Mr. Coote by Dian Waik. It bears numerous handwritten comments by Mr. Coote, which ought not to be there; they represent argument.
33Affidavit evidence of the sort proffered here is problematic. Admitting evidence in addition to what was before the arbitrator ought to be “very exceptional” and only to the extent that it shows jurisdictional error such as a complete absence of evidence on an essential point, which will occur only rarely: see Re Keeprite Worker’s Independent Union v Keeprite Products ltd. (1980) 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.).
34Where new evidence, not available at the time of hearing, is proffered, it must pass the test for admission. There appears to be virtually none of that in this material. Where it is a rehash of the material already before the Commission, it is argument and should not be disguised as evidence. That description applies to most of the affidavit. The applicant’s major submission was that certain materials should have been before the Commission, but were not, due to the practice of preparing the Case Analysis, which is placed before the Commission in lieu of the entire body of material. I do not agree that this represents a denial of natural justice. The Commission is entitled to establish its own procedures and to rely on investigators and advisors to help it deal with the massive workload. It is not for the court to require the Commission members to read every document a complainant seeks to place before them; the Commission is entitled to have some help and to rely on that help. The Case Analyses are placed before the parties for comment and the comments are taken into account. The parties thus have the opportunity to present their case. If the applicant was able to articulate some new and critical point never placed before the Commission and its advisors, that would be a different position from the present case. But what is in the affidavit and exhibits is largely present argument and past argumentative correspondence about the findings by the Commission staff based on the materials they had. The heart of the case presented by the applicant in these materials is that he disagrees with the findings of the Commission and its staff that he was not dismissed on prohibited grounds.
35The Commission’s procedure involving the Case Analysis was briefly considered by this court in Campbell v Ontario (Human Rights Commission) [2004] O.J. No.530, where the court was mindful of the balance required between the need for thorough investigation and the need to maintain a workable and effective administrative system. The court found the Case Analysis and the reconsideration report to exhibit a balanced approach and noted that the applicant was there, as was the applicant here, afforded the opportunity to comment on the findings before the Commission made its decision. The material that goes before the court on judicial review should essentially be the material that was before the Commission: see Ontario Hydro v Ontario (Assistant Privacy Commissioner) [1996] O.J. No. 4196 (Div. Ct.); Mianowski v Ontario (Human Rights Commission) [2003] O.J. No. 3790 (Div. Ct.).
36For these reasons, the affidavit is struck out.
Applicant’s Motion
37The applicant moves for some 30 orders in connection with the Application. A number of these seek additional information of a factual nature relating to the facts surrounding his termination. For example, #2 seeks statistical evidence to support the position that the applicant was terminated due to a shortage of work and to support the racial diversity of Assante employees. Item #3 seeks the identification of the websites not related to work, which he is said to have frequented and any documentation as to warnings given. If this sort of information was not before the Commission, it can now only be put before the court on a motion to admit new evidence. However, it was all in existence at the time of the complaint to the Commission and could have been obtained then, a circumstance which disqualifies it for admission as new evidence. Item #25 seeks production from the Commission of all documents on this file, in the Record of Proceedings. This Record is already before the court.
38Items 5 through 7 relate to information as to the efforts of the Commission to enforce certain statutes such as employment equity, the Charter, and the like. The information sought is simply not relevant to any issue properly raised on a judicial review of the refusal to send the applicant’s complaint to the Tribunal.
39Items 4 and 8 are too general to enable me to discern any relevance to the judicial review. Item 9 seeks to explore the legal advice given to the Commission, which is privileged. Items 10 and 30 seek disclosure of all minutes of meetings regarding the amendments to the Code, the basis of the changes, the recommendations of various interest groups commenting on the bill, etc. The amendments themselves are irrelevant and accordingly this information is not required for the judicial review. Item 11 seeks disclosure of the budget of the Commission from 2000 to 2006, including detailed breakdown of operating expenses into categories such as legal fees, travelling expenses, hotel bills, the budget for the Race Division, and so forth. This information has no relevance to the issues in the judicial review. Items 12 to 19 ask for dismissal of the respondents’ motions and are dealt with by these reasons. Item 20 deals with costs, which have yet to be argued. Item 21 asks to strike the solicitors appearing for the various parties. There is no basis in the material to do this. (See also the discussion of items 26 to 28, below.) Items 22 and 23 seek to add parties, a matter already discussed. Item 24 asks for an order that certain persons, including the Commission, the two Commissioners, certain investigators and others, be held in contempt. There is no basis in this material on which that could be done and I did not understand the applicant to be pressing this point before me.
40Items 26 to 28 seek dismissal of the motions filed by the respondents. Reference is made to conflict of interest and to the counsel having no standing (paragraph 34). This submission is based on the applicant’s letter of January 27, 2007, in which the applicant suggests that it cannot be that the firm acts only for Assante, because the firm acted for all Assante-connected persons before the Commission. The applicant does not recognize that the judicial review is a new proceeding in this court and that counsel need not be the same or represent the same persons as was the case before the Commission.
41Item 29 deals with a publication ban, but was not pressed before me.
42For these reasons, the motions brought by the applicant are dismissed.
Costs
43Costs of these motions are reserved to the panel hearing the judicial review.
Lane, J.
DATE: May 14, 2007