Court File and Parties

COURT FILE NO.: 552/09

DATE: 20091125

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

HONDA OF CANADA, MANUFACTURING Applicant

• and -

HUMAN RIGHTS TRIBUNAL OF ONTARIO and LEBERT ALLADICE Respondents

Counsel: Rishi Bandhu and Jayson A. Rider, for the Applicant Margaret Leighton, for the Human Rights Tribunal of Ontario Lebert Alladice, In Person

HEARD at Toronto: November 25, 2009

Oral Reasons for Judgment

LEDERMAN J.: (Orally)

1The applicant Honda seeks a stay of the Human Rights Tribunal proceeding scheduled to commence November 30, 2009, pending the disposition of the application for judicial review that it has filed.

2The test for a stay is that as set out in RJR MacDonald Inc. v. The Attorney General of Canada, [1994] 1 S.C.R. 311:

(a) Whether there is a serious issue to be tried;

(b) Whether irreparable harm will result if a stay is not granted; and

(c) An assessment of the balance of convenience.

3The applicant Honda alleges that the respondent Alladice has not complied with the Tribunal’s procedural rules for production and disclosure, particularly concerning events after he filed his complaint on January 25, 2008. It submits that procedural fairness requires that it receive advance disclosure of such matters in order to know the case to meet and that it is not sufficient to await the hearing. It submits that it sought preliminary rulings from the Tribunal but has not received any procedural orders compelling production and disclosure.

4The interim order of the Alternate Chair dated October 23, 2009 denied its request for particulars. Its position is that without appropriate advance production and disclosure it will be unable to address at the hearing the allegations against it of discriminatory conduct. However, Honda’s remedies in respect of procedural deficiencies are not exhausted at this stage as it can still seek appropriate sanctions such as limitation of the issues and limitations on the evidence from the Tribunal itself.

5The Alternate Chair specifically said at paragraph 5 of her interim decision that:

The Tribunal’s Rules provide for sanctions on a party which fails to comply with its obligations to disclose and produce in a timely fashion. The respondent may pursue those sanctions if necessary at the hearing.

6Although it generally is more efficient to deal with such matters at a preliminary stage, it is still open to Honda to argue before the Tribunal on November 30, that as this is a transitional case under s.53(2) of the Human Rights Code, that section limits the jurisdiction of the Tribunal to the subject matter set out in the complaint of January 25, 2008 and not to matters that took place thereafter.

7If the Tribunal does not agree, the Tribunal may grant an adjournment or make other orders to accord Honda the requisite fairness to meet the case against him.

8Courts have repeatedly frowned on reviewing Tribunal interim decisions in a fragmented or piecemeal way and have emphasized the importance of having a complete evidentiary record. Thus, it is preferable to allow the proceeding to run its full course before the Tribunal (see for example, Toronto Police Services Board v. Ontario (Human Rights Tribunal) [2009] O.J. No. 2509).

9It cannot be said at this stage that the Tribunal, in failing to make preliminary orders as to production and disclosure, has definitively denied the applicant Honda natural justice or has precluded its ability to muster a defence.

10In the end, the applicant has not shown it will suffer irreparable harm if a stay is not granted, and indeed the balance of convenience favours the matter proceeding to completion before the Human Rights Tribunal which has ample powers to control its own processes and ensure fairness to the parties.

11The motion is therefore dismissed.

12I have endorsed the Record to read: “For oral reasons delivered, the motion is dismissed. No costs.”

LEDERMAN J.

Date of Reasons for Judgment: November 25, 2009

Date of Release: December 7, 2009

COURT FILE NO.: 552/09

DATE: 20091125

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT