Nyonzima v. Human Rights Tribunal of Ontario, 2012 ONSC 5120

1This is an application for judicial review of a decision of the Human Rights Tribunal of Ontario dated August 15, 2011, dismissing the applicant’s application as an abuse of process pursuant to s.23(1) of the Statutory Powers Procedure Act. The applicant seeks to have the decision quashed and an order that her applications be remitted back to the Tribunal to be heard on the merits.

2The standard of review for this Court is reasonableness. Decisions of the Tribunal are to be afforded the highest degree of deference because of the privative clause in s.45.8 of the Human Rights Code. See for example, Shaw v. Phipps, 2010 ONSC 3884 at paras. 8 - 10 and 22 – 30. It is also important to note that the Tribunal’s decision in this case ultimately turned on an assessment of the applicant’s credibility which the jurisprudence indicates attracts a heightened deference on appeal or review.

3By way of background, the applicant filed two complaints alleging that the respondents discriminated against her on the basis of race. She also alleged that the respondents engaged in acts of reprisal against her.

4On November 2, 2009 and January 28, 2010, the applicant’s paralegal, Mr. Morrison, received two letters purportedly drafted by Kathleen Kinnear and Rebecca Robinson, co-workers of the applicant. Those letters supported the applicant’s complaints. The respondents alleged that the letters had been fabricated by the applicant. On July 5, 2011, the HRTO hearing was held. The applicant alleges that during the hearing she was refused the opportunity to call three witnesses. We reject that submission. The applicant did not seek to call witnesses on that day. Furthermore, having reviewed the “will say” statements of those witnesses, it is clear to us the witnesses could not refute the adjudicator’s critical finding that the applicant authored the letters.

5The adjudicator found that the applicant lacked credibility and was at times evasive and contradictory in her evidence. Cogent reasons were given for the finding. See paras. 23 – 31 and 38 of the Decision. Furthermore, it is not our function to weigh the evidence or to substitute our own view of the facts.

6The applicant now alleges that the forged letters were part of a plot orchestrated by the respondent to attack her credibility and prematurely end the Tribunal’s investigation into her complaints. That theory is advanced for the first time on this judicial review and there is not a shred of evidence to support it.

7The applicant submits that the Tribunal erred at law in not applying a higher standard of proof in assessing what she characterizes as an allegation of fraud against her. It did not.

8The applicant relies on two decisions primarily, one of Lord Dennings’ from 1950 and another one from the Supreme Court of Canada in 1982. Both those decisions are overtaken by the Supreme Court of Canada decision in F.H. v. McDougall, [2008] S.C.C. 53. That case holds very clearly that there is only one civil standard of proof at common law and that is proof on a balance of probability.

9The applicant submits that the Tribunal erred in relying on circumstantial evidence or mere inferences of fact. In our view, the adjudicator quite properly found that there was a body of circumstantial evidence and that it was compelling in this case.

10With respect to the ultimate decision itself, that is to say the decision to dismiss the applicant’s complaint as an abuse of process, the question is whether that was too heavy handed or whether it was within the range of what is reasonable. Ultimately the adjudicator concluded that the appropriate remedy in this case was to dismiss the applications. That conclusion, in our view, is protected by the deferential standard of review.

11The decision to dismiss the applicant’s complaints because of an abuse of process was well within the Tribunal’s power. The Tribunal may make such orders as are necessary to prevent abuse of its processes. The Code authorizes the Tribunal to control its own process and practices. Whether the Tribunal should exercise its discretion to dismiss an application as an abuse of process is a question at the heart of both its statutory mandate to control its own proceedings and its specialized expertise. The adjudicator reviewed other potential remedies and concluded at paragraph 48 of the Decision that they would be ineffective in this case.

12The remaining submission on the part of the applicant on this judicial review is that the mediation-adjudication process breached procedural fairness. The rules do allow for consensual mediation-adjudication by the same person with the express consent of the parties following the execution of a mediation adjudication agreement. Rule 15A specifically states that with the agreement of the parties the Tribunal member hearing an application may act as mediator. In such circumstances the mediator may continue to hear the matter as an adjudicator.

13The applicant points out that Rule 15A.2 refers to the “parties” in contrast to Rule 15.2 which refers to the parties and their respective representatives. In this case the agreement was signed by the applicant’s paralegal representative. She has never raised before now any issue with respect to his authority to sign on her behalf. We also note that this objection could have been the subject of a reconsideration request, which the applicant chose not to pursue. We therefore reject this submission as well.

14The application is therefore dismissed.

COSTS SUBMISSIONS

15I have endorsed the Application Record, “For oral reasons given and recorded, this application is dismissed. The applicant is to pay costs to the respondent Idlewyld Manor and Cindy Perrodou in the total amount of $14,000 all inclusive.”