DIVISIONAL COURT FILE NO.: DC-13-67-00
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEENEY, PARFETT and VARPIO, J.J.
BETWEEN:
Haruyo Taucar
Applicant
– and –
Human Rights Tribunal of Ontario, The University of Western Ontario, Kenneth Paul Swan and Kenneth P. Swan Arbitration Ltd.
Respondents
Christopher E. Taucar, for the Applicant
Andrea A. Cole, for the Respondent, Human Rights Tribunal of Ontario
Frank Cesario, for the Respondent, The University of Western Ontario
David C. Moore, for the Respondent, Kenneth P. Swan and Kenneth P. Swan Arbitration Ltd.
HEARD: March 19, 2014
REASONS FOR JUDGMENT
INTRODUCTION
1This is an Application for Judicial Review of a Human Rights Tribunal of Ontario (“HRTO”) decision. Shorn of all the Applicant’s efforts to call a rose by another name, the heart of this matter is a report prepared by Mr. Kenneth Swan (the “Swan Report”). That report found that the Applicant’s allegations of discrimination and harassment were not well-founded. The Applicant and her counsel/husband cannot accept this finding and have attempted in every possible way to have the report overturned. This Application for Judicial Review is the latest attempt.
2The gravamen of this matter is an alleged harassment dispute between two Japanese language instructors at The University of Western Ontario (“UWO”), the specifics of which are not relevant to this decision. On July 6, 2009, the Applicant filed a complaint under the Discrimination and Harassment Article of UWO’s collective agreement. The Applicant claimed that she was the victim of harassment and discrimination. The external investigator found a prima facie violation of that Article and a panel of inquiry was scheduled. The parties signed a Memorandum of Agreement to have an investigator stand in place of the panel. The investigator chosen by the parties – Mr. Kenneth Swan of Kenneth P. Swan Arbitration Ltd. – released the Swan Report on September 13, 2010. He found no evidence of discrimination.
3Following its review of the Swan Report, UWO dismissed the complaint by letter dated September 22, 2010 effectively stating that there was no evidence in the report to support the Applicant’s claims.
4On October 26, 2010, the Applicant filed an application under the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), seeking to dismiss that decision. The Applicant claimed that UWO’s dismissal of her complaint without reasons was discriminatory. The Applicant also alleged that the Swan Report was discriminatory for several reasons: first, that Mr. Swan misapprehended Japanese culture; secondly, that Mr. Swan inferred that the Applicant was not to be believed because she is Japanese; and, thirdly, that Mr. Swan ignored relevant tenets of Japanese culture.
5The HRTO proceeding was deferred as the Applicant had also filed an Application for Judicial Review to quash the Swan Report and UWO’s subsequent determination. That Application was heard on April 14, 2011. In her application, the Applicant claimed that UWO’s decision was not in accordance with law, violated natural justice and was procedurally unfair. Further, the Applicant claimed that Mr. Swan committed errors in excess of his jurisdiction in that he:
Failed to exercise appropriate jurisdiction;
Violated natural justice and procedural fairness;
Demonstrated bias;
Acted in breach of Charter rights;
Omitted relevant evidence;
Failed to properly assess contradictory evidence; and
Failed to adequately state reasons.
6Finally, the Applicant claimed that that the denial of her counsel’s request to make submissions to the Provost of UWO was also a breach of procedural fairness.
7On May 31, 2011, the Divisional Court released its decision, finding that the case lacked the requisite public character to render it amenable to Judicial Review. The court found that the parties had, by agreement, set aside UWO’s process for addressing allegations of harassment and discrimination, including the various safeguards contained in that process, and followed a process of their own creation. Matlow J. writing for the panel stated, at para. 16, “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.”
8Leave to appeal to the Court of Appeal for Ontario and to the Supreme Court of Canada was denied: [2011] S.C.C.A. No. 507.
9The HRTO proceeding resumed and, on April 10, 2013, the Vice-chair of the HRTO found that there was no reasonable prospect that the Applicant would be able to establish that UWO violated the Code. She further found that the doctrine of adjudicative immunity applied to Mr. Swan and that the exceptions to the doctrine did not apply in the circumstances of the case. The Vice-chair dismissed the Applicant’s claim.
10The HRTO released its reconsideration decision on May 31, 2013, upholding the first decision by the Vice-chair.
11The Applicant filed an application for Judicial Review of the HRTO decision on June 26, 2013.
12Parenthetically, on October 25, 2013, the Applicant attempted to have the alleged perpetrator of the harassment charged with perjury by having charges laid pursuant to the pre-enquete provisions of the Criminal Code. Charges were subsequently withdrawn by the Crown later that year.
ESSENCE OF THE INSTANT APPLICATION
13The Applicant indicates that there are effectively two grounds for judicial review in this matter:
That the HRTO decision, and its reliance on the Swan Report, contravened the Code in that the process undertaken in reaching the decision, and the substance of the “reasonable prospect” decision, were themselves discriminatory; and
That Mr. Swan lost arbitral immunity and can himself be subject to a Code complaint.
DUPLICATION
14As previously noted by the HRTO on March 18, 2011, “some of the legal issues raised in the Applications and the Judicial Review are similar and arise out of the same factual circumstances”. With all due respect to the Tribunal, it is our belief that the matters canvassed in both the initial Judicial Review Application, the Human Rights complaint and this Judicial Review Application are de facto identical in nature.
15All proceedings in this matter flow from the Swan Report, including the Criminal Code charges. Further, all arguments advanced in the instant Application for Judicial Review have already been adequately canvassed. In fact, in her submissions seeking a deferral of the HRTO complaint dated December 23, 2010, the Applicant stated:
There are questions put squarely before and to be decided by the Divisional Court that will have implications which would work to deny judicial immunity to Mr. Swan, even if he could even make such a claim for immunity, for example in knowingly acting beyond jurisdiction.
16Further, although the Applicant clearly indicated in her 2011 Application for Judicial Review that she was not advancing a human rights claim, within that Application she nonetheless attempted to quash the Swan Report as being biased and procedurally unfair. In support of her allegations, she claimed that the Swan Report:
Failed to consider appropriate evidence;
Drew inappropriate conclusions from the evidence that was considered; and
Resonated bias.
17The Applicant used these same grounds in an attempt to support a discrimination claim before the HRTO and to found her application for Judicial Review before this court. Although her considerable, repetitive and, frankly, confusing materials also attempt to generate other grounds to support a finding of discrimination, these other grounds can all be categorized as being derivative of the grounds listed in the previous paragraph. This is, effectively, an “end run”.
18In dismissing the 2011 Application for Judicial Review, our colleagues stated:
Counsel 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.
Similar observations were also made by Justice Little in his endorsement. He concluded by remarking that “My admonition fell on deaf ears”.
19At a time when justice resources are scarce and courts and tribunals attempt to “do more with less”, this continued, quixotic pursuit of a meritless claim damages the administration of justice and not only must be stopped, but also must be rebuked so as to ensure that other matters deserving of time and effort are able to receive adjudication. As such, we decline to exercise our discretion to consider this matter.
SUBSTANTIVE ANALYSIS
20If we are incorrect in our exercise of discretion, we find that the analysis undertaken by the Vice-chair was correct with respect to both the issue of “reasonable prospect” as well as adjudicative immunity.
21First, we find that the Swan Report was balanced, fair and impeccably reasoned. It appears to contain no unreasonable procedural or substantive decisions or statements – let alone any decision or statement that could be interpreted as a basis for a discrimination claim. Much was made of the expert evidence filed by the Applicant as to how her cultural background affects the manner in which she communicates, both verbally and in writing. However, Mr. Swan had similar evidence before him when he prepared his report. He expressly considered that evidence, and took it into account. The culturally sensitive approach he undertook is the antithesis of discrimination. The mere fact that the Applicant’s experts disagree with Mr. Swan’s factual conclusions does not mean that the latter acted in a discriminatory manner.
22Second, the Vice-chair’s reliance upon the Swan Report was entirely appropriate. As per her reasons, she considered all the relevant evidence. The Vice-chair had before her the report of one of the most experienced and well-respected labour arbitrators in this province. It was entirely reasonable for her to conclude that the Applicant’s attack on such a report was, as a matter of probability, doomed to failure. Her decision not only met the applicable standard of reasonableness, it is, in our view, entirely correct.
23Finally, the Vice-chair’s analysis with respect to adjudicative immunity was thorough, comprehensive and is correct. It need not be repeated here.
24The parties may address the Tribunal with regards to costs in no more than two (2) pages within 30 days of the release of this decision.
Varpio J.
Heeney R.S.J.
Parfett J.
Released: March 20, 2014
CITATION: Taucar v. Human Rights Tribunal of Ontario, 2014 ONSC 1818
DIVISIONAL COURT FILE NO.: DC-13-67-00
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEENEY, PARFETT and VARPIO, J.J.
BETWEEN:
Haruyo Taucar
-and-
Human Rights Tribunal of Ontario, The University of Western Ontario, Kenneth Paul Swan and Kenneth P. Swan Arbitration Ltd.
REASONS FOR JUDGMENT
Released: March 20, 2014