Khaiter v. Human Rights Tribunal of Ontario, 2011 ONSC 2265
DIVISIONAL COURT FILE NO.: 19/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
DR. PETER A. KHAITER
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO ("HRTO", 'TRIBUNAL") and DAVID MUIR, HRTO VICE-CHAIR and YORK UNIVERSITY ("YU", "UNIVERSITY", "YORK") and MADMOUH SHOUKRI, YU PRESIDENT and LORNA MARSDEN, YU EX-PRESIDENT, and SHEILA EMBLETON, YU EX-VICE PRESIDENT, GARY BREWER, YU VICE PRESIDENT, and RHONDA LENTON, YU ASSOCIATE VICE PRESIDENT and BARRY MILLER, YU EXECUTIVE DIRECTOR, FACULTY RELATIONS and PAUL CRAVEN, YU PROFESSOR
Respondents
In Person
Emma Phillips, for the Moving Party, York University Faculty Association
HEARD at Toronto: April 8, 2011
ASTON J. (orally)
Motion for Party Status
1York University Faculty Association ("YUFA") brings a motion which was first returnable on March 11 and adjourned to today by Herman J. The motion seeks relief under both Rules 13.01 and 5.03 to grant the Association party status, either as a respondent or as an intervenor. Both of those Rules provide for the possibility of being added as a party, though the tests under the two Rules are not the same.
2Rule 13.03 provides that a motion for leave to intervene in the Divisional Court as an added party may be granted by a panel of the Court, the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them. As I pointed out at the outset, the designation was not made and I am without jurisdiction to entertain the motion under Rule 13.01. The test under Rule 5.03 is somewhat different and it involves a consideration of whether it is "necessary" to add a party so that the Court can completely and effectively adjudicate all issues before it.
3In this case, there is a live judicial review application, notwithstanding that the first application was administratively dismissed in January. Leave was granted to file an Amended Judicial Review Application, which has been done by the Amended Application dated March 25 and filed on March 29. The Amended Application may be found at Tab 15 of the cross motion.
4Dr. Khaiter has now made it clear on the hearing of the motions this morning that he is abandoning any challenge to the decisions that afforded the Faculty Association intervenor status, as well as any challenge based on its participation in the process before the Tribunal below.
5In paragraph 1 on page 4 of the Amended Application there is a noted exception - for the part, if any, in each of the decisions of the Tribunal which concerns York University Faculty Association's participation in the proceeding before the Human Rights Tribunal of Ontario. Dr. Khaiter has clarified today that that same exception in paragraph 1 can be read into the rest of what he says in his Amended Application, that is to say in the relief that he is claiming and in the grounds. Based upon that, I am not prepared to find that it is necessary for the Faculty Association to participate in the Amended Judicial Review Application process as a party.
6I am not prepared to stretch the test in Rule 5.03 to enable the Association to join the fray simply to address the contingency or possibility that Dr. Khaiter may change his mind or try some collateral attack. Any collateral attack on the orders of the Tribunal, or based upon the participation of the Faculty Association in the proceedings before the Tribunal, can be averted by clear reasons given by me today. I will say that but for this clear expression of his position today by Dr. Khaiter, I would have granted the motion.
The Cross Motion
7On the cross motion: the first seven items of relief in the cross motion can only be advanced on a statutory appeal or judicial review application. This is neither - today's proceeding is simply a motion.
8Item 8 addresses the issues of short service and filing with respect to the original motion record back in early March. In my view, that is of no consequence today since the first motion judge, Herman J., addressed that matter implicitly under Rule 3 when granting the adjournment to today's date. Her decision is not subject to review today.
9The same would apply with respect to item #9 in the cross motion, raising a point which is essentially moot at this stage.
10Items 10, 11, 12 and 13 of the cross motion are, in essence, the basis upon which Dr. Khaiter opposes the motion by the Faculty Association. Those paragraphs do not become the basis for any order today other than with respect to the dismissal of the Faculty Association's motion. It is not necessary for me to weigh the evidence or to render any judgment on these claims of abuse of process, bad faith and the like.
11Those items are also referenced separately in item 14 of the cross motion. In my view, those sorts of things, if they are relevant at all, are perhaps relevant only in relation to costs but are not necessary for me to decide the disposition of the motions.
12For these reasons, I am dismissing both motions.
[COSTS SUBMISSIONS]
Costs
13I have endorsed on the Cross Motion Record, "For oral reasons given today, this cross motion is dismissed. No costs."
14With respect to the Faculty Association's Motion, I have endorsed, "For oral reasons given, this motion is dismissed. However, I wish to highlight the fundamental reason for that decision and I direct that the preamble or body of the formal order is to state that: The applicant does not challenge on his judicial review application any part of the Tribunal's decision which concerns York University Faculty Association's status or participation in the proceedings before the Tribunal, and this position on his part applies to all the paragraphs and grounds set out on pages 4-6 of his Amended Application for Judicial Review dated March 25, 2011. No costs."
ASTON J.
Date of Reasons for Judgment: April 8, 2011
Date of Release: April 15, 2011
CITATION: Khaiter v. Human Rights Tribunal of Ontario, 2011 ONSC 2265
DIVISIONAL COURT FILE NO.: 19/10
DATE: 20110408
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON J.
BETWEEN:
DR. PETER A. KHAITER
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO ("HRTO", 'TRIBUNAL") and DAVID MUIR, HRTO VICE-CHAIR and YORK UNIVERSITY ("YU", "UNIVERSITY", "YORK") and MADMOUH SHOUKRI, YU PRESIDENT and LORNA MARSDEN, YU EX-PRESIDENT, and SHEILA EMBLETON, YU EX-VICE PRESIDENT, GARY BREWER, YU VICE PRESIDENT, and RHONDA LENTON, YU ASSOCIATE VICE PRESIDENT and BARRY MILLER, YU EXECUTIVE DIRECTOR, FACULTY RELATIONS and PAUL CRAVEN, YU PROFESSOR
Respondents
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: April 8, 2011
Date of Release: April 15, 2011