DIVISIONAL COURT FILE NO.: 1854
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, KENT and ASTON, J.J.
B E T W E E N :
Haruyo Taucar
Applicant
– and –
The University of Western Ontario; and Kenneth Paul Swan, c.o.b. Kenneth P. Swan Arbitration Ltd.
Respondents
C.E. Taucar, for the Applicant
Christopher Riggs, for the University of Western Ontario
HEARD: April 14, 2011 at London
REASONS FOR JUDGMENT
MATLOW, J.
1This application for judicial review and the motion for the review of the order of Justice Little are dismissed. Counsel may make written submissions with respect to costs. The first submission is to be made within 15 days and the second within 15 days after the first.
2At the commencement of the hearing of this application, we heard a motion brought by the applicant, pursuant to s.21 (5) of the Courts of Justice Act, for an order setting aside the order of Justice Little, sitting as a single judge of this court, made on March 15, 2011. By that order, the affidavit of the applicant sworn on November 29, 2010, filed for use on this application was struck with leave to deliver an amended affidavit confined to two specified issues. With the consent of both counsel, we heard submissions on the motion together with submissions on the application and reserved our decision on both matters.
3We agree with the order made by Justice Little, including his award of costs, and find no reason to interfere with it. The contents of that affidavit, and the affidavit that was subsequently delivered pursuant to the leave granted, included extraneous and inadmissible evidence that went far beyond what might have been admissible. Both affidavits are replete with unsubstantiated subjective opinions and submissions, bald assertions and self-serving speculation rather than admissible evidence of facts.
4By this application the applicant, a Japanese language instructor at the university, seeks various items of relief related to a complaint made by her to the university against another Japanese language instructor at the university alleging that her colleague had engaged in harassment toward and discrimination against her on the basis of race, ethnic or national origin.
5The applicant’s complaint put into operation the process set out in the collective agreement between the university and the association representing its academic staff for investigating and addressing such complaints. The article of the agreement setting out the complaint procedure included the following provisions.
If no resolution of a complaint is made within a stipulated period of time, an “External Investigator” is to be retained to conduct an investigation of the complaint and report on whether or not there is a prima facie case raised by the complainant. (s. 10 and s. 10.1)
If no resolution of a complaint found to raise a prima facie case is made within a stipulated period of time, a “Panel of Inquiry” is to be established. (s. 11)
The purpose of the Panel of Inquiry “shall be to determine the facts pertaining directly to the complaint”. (s. 11.3)
The Panel shall determine its own process and procedure and shall submit a written report of its “findings”, “based on the facts and evidence presented directly related to the complaint”. The parties involved shall have the right to present evidence, to call witnesses and to present argument to the Panel of Inquiry.” (s. 11.3)
The Panel is to submit a written report of its findings after the completion of “the hearing”. (s. 11.4 and s.11.5)
The Panel’s report “shall be based on all of the facts and evidence presented”. (s.11.6)
The university is then to “issue a written determination” which is to include “a finding, with reasons, that the complaint is or is not upheld”. (s. 12. 1)
6Pursuant to s. 10, an External Investigator was retained, carried out her investigation and reported that there was sufficient evidence to establish a prima facie case and that certain allegations made “are sufficient to enable the matter to proceed to a Panel of Inquiry”.
7However, rather than proceed to a Panel as contemplated by the process, the applicant, the university and the colleague against whom the complaint was made entered into a private written agreement, dated May 19, 2010 (“agreement”) to provide for a process to deal with the applicant’s complaint. In that agreement they chose their own process that included the following provisions.
An “investigator” was to be substituted for the Panel set out in the article of the collective agreement. (par. 1)
The investigator “shall conduct a full investigation of the complaint”. (par. 3)
The investigator “shall provide a written report of his findings of fact pertaining to the Complaint” to the parties. ( par. 4)
Upon receipt of the report, the university is then “to make a determination” which is to include, “a determination with reasons, that the complaint is upheld or not upheld”. (par. 5)
The parties “reserve all grievance rights in respect of the Employer’s determination after the investigation report in accordance with the Collective Agreement”. (par. 6
“The parties agree that this Agreement replaces Article 11 of the Discrimination and Harassment Article of the Collective Agreement, and that all other provisions of the Discrimination and Harassment Article shall remain in effect with necessary modifications to refer to the Investigator and to reflect the terms of this agreement”. (par. 7)
“This agreement is without prejudice or precedent to any other matter”. (par. 8)
8The respondent, Kenneth P. Swan (“Swan”), was selected to serve as the “investigator” pursuant to the agreement. Swan conducted his investigation and then reported his findings of fact and his conclusions that none of the complaints had been made out.
9In the introduction to his report, Swan addressed the procedure that he followed in carrying out his investigation. The following are some of his observations.
A Panel “would normally proceed by way of a typical adversarial hearing involving calling of evidence, both documentary and viva voce, and cross-examination on the testimony of witnesses. Instead, the parties have assigned the same role to another third party participant, the undersigned, also referred to as an “Investigator” in the Memorandum of Agreement.”
“The legal effect of this way of proceeding is to create a kind of jurisdictional chimera, a tribunal with the responsibilities of a Panel of Inquiry but armed only with the tools of an investigator. As it turned out, this unusual assignment did not prove to be a significant obstacle. At the request of the Complainant, and with the consent of the Respondent, I administered a form of solemn affirmation to each of the individual parties, who were the only witnesses to give testimony before me. While there was no cross-examination, I was able to interview both individual parties as required, and to ask them to provide further information as needed. I met with the Complainant on two separate days, June 21 and 28, 2010, and I met with the Respondent on July 15, 2010. I received from each of them voluminous written documentary evidence and submissions, and I also received various communications from counsel.”
“Neither party took exception to this way of proceeding; counsel for the Complainant wrote essentially consenting to the approach proposed, and the Respondent, with whom that approach was discussed at the end of our interview, took no exception.”
10Swan’s report was then considered by the Provost of the university who rendered the university’s determination, relying on the report, that “there is no evidence in the report to support a claim of harassment or discrimination” and that “no disciplinary measures should be taken against the Respondent”.
11The applicant now seeks various items of relief including that we quash Swan’s report and the university’s determination. The grounds cited in support are numerous and extensive. They include submissions regarding errors committed by Swan, excess of jurisdiction, failure to exercise jurisdiction, violations of natural justice, procedural unfairness, bias, breach of Charter rights, omission of evidence, contradiction of evidence, failure to state reasons and many others.
12Counsel for the applicant is also her husband. Although he may have been well intentioned, in our view he exercised poor judgment in making many of his submissions to us and in purporting to give evidence to support submissions that were unsupported by the evidence. We consider that his performance was a shining example of why one should avoid acting for or retaining one’s spouse. Nevertheless, we listened to all of the submissions that he and counsel for the university made, considered all of the material before us and we deliberated at length before deciding not to intervene.
13Similar observations were also made by Justice Little in his endorsement. He concluded by remarking that “My admonition fell on deaf ears”.
14There is no doubt that the university is a statutory body amenable to certiorari in appropriate circumstances. The rationale for this is that a public body created by statute should be subject to some measure of public control. (See Re Polten and Governing Council of University of Toronto et al. (1975), 8.O.R. (2d) 749 at page 764).
15However, in this case the parties had, by agreement, set aside the university’s process for addressing allegations of harassment and discrimination, including the various safeguards contained in that process, and followed instead a process of their own creativity. That process, although similar in some ways to the university’s process, was significantly different. In it, the rights of the parties to present evidence, call witnesses and to present argument to the Panel of Inquiry were removed and the investigator was given the power to interview the parties in private and then, without more, make his own findings of fact. It may well be that the result was that the investigator’s findings of fact were, by implication, intended to be final and binding and that the university was required to make its determination solely on the basis of those findings.
16In any event, so long as the process followed was that which the parties had created or to which they consented, as we are satisfied it was, the applicant cannot now be heard to complain that it was deficient or that she was entitled to some other process.
17Counsel for the applicant submits that the denial of his request to make submissions to the Provost was a breach of procedural fairness. However, as the parties did not provide for such a right in their agreement, it is our view that there is no basis to support that submission.
18We view the process that was created was intended to have the complaint determined in a summary manner, leaving the essential findings to be made by the investigator.
19On the basis of the investigator’s report, there was no determination that the Provost could reasonably have made other than the one she did.
20We consider it unlikely that the process created by the parties, by which many procedural safeguards contained in the process set out in the collective agreement were expressly deleted, will often if ever, displace the original process. Accordingly, it has no significant value as a precedent.
21It is of some significance that the association refused to grieve the applicant’s complaint, that proceedings related to the refusal initiated by the applicant are now pending before the Ontario Labour Relations Board and the Ontario Human Rights Commission and that she has brought an action brought by her against her former colleague alleging copyright infringement. There are even indications that the applicant intends to take her complaint before an international tribunal. There may be no end to the steps that she, and her counsel, are apparently willing to take.
22However, on all the evidence, the applicant’s complaint, taken at its strongest, would not likely be of much importance to anyone other than the parties themselves. Even though the applicant was undoubtedly bothered by the alleged conduct of her colleague, that conduct was of a relatively minor matter that might well have been resolved in a less extravagant and costly manner.
23Despite the university’s undoubted public duty to provide a harassment and discrimination-free workplace, we regard the process by which the parties agreed to have the applicant’ s complaint determined as reflective of the parties’ intention to treat it as if it were a purely domestic matter that should be left entirely to the university for resolution. Accordingly, it lacks the requisite public character to render it amenable to judicial review.
24It would clearly not be in the public interest or the university’s interest as a public institution that we countenance the expenditure of scarce public funds to make available to the applicant the opportunity to seek judicial review.
Matlow, J.
Kent, J.
Aston, J.
Released: May 31, 2011
CITATION: Taucar v. University of Western Ontario, 2011 ONSC 3069
DIVISIONAL COURT FILE NO.: 1854
DATE: 20110531
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, KENT and ASTON, J.J
B E T W E E N :
HARUYO TAUCAR
Applicant
– and –
THE UNIVERSITY OF WESTERN ONTARIO; AND KENNETH PAUL SWAN, C.O.B. KENNETH P. SWAN ARBITRATION LTD.
Respondents
REASONS FOR JUDGMENT
MATLOW J.
RELEASED: May 31, 2011