Citation: Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2603

DIVISIONAL COURT FILE NO.: DC-15-00794-00

DATE: 20170427

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MOLLOY, C. HORKINS and HOWARD JJ.

BETWEEN:

HARUYO TAUCAR

Applicant

– and –

THE HUMAN RIGHTS TRIBUNAL OF ONTARIO, WESTERN UNIVERSITY (formerly known as THE UNIVERSITY OF WESTERN ONTARIO), DONNA PENNEE and LISA ANN KORAB

Respondents

COUNSEL:

C.E. Taucar, for the Applicant

J. Tam, for the Respondent Human Rights Tribunal of Ontario

F. Cesario, for all other Respondents

HEARD: September 15, 2016

REASONS FOR DECISION No. 1

(Allegation of Bias)

MOLLOY J.

Introduction

[1] Haruyo Taucar (“the Applicant”) was a sessional instructor at the University of Western Ontario (“UWO”). She filed a number of human rights complaints against UWO alleging that she had been the victim of discrimination. There was also an Ontario Labour Relations Board complaint and civil proceedings. The Applicant was unsuccessful in all of these matters, including a number of judicial reviews and appeals from same. Throughout all of these matters, the Applicant has been represented by her husband, Mr. C.E. Taucar, who is a lawyer.

[2] The within judicial review proceeding was commenced by a Notice of Application dated March 30, 2015, and seeks to set aside various decisions of Vice-Chair Hart of the Human Rights Tribunal of Ontario (“the Tribunal”). The application was argued in Oshawa before me and Justices Howard and Horkins on September 15, 2016. As the senior member, I served as the President of the Panel. We reserved our decision.

[3] On September 19, 2016, Mr. Taucar wrote to the Registrar of the Divisional Court and requested that the Registrar forward his correspondence to the Panel. In his letter, Mr. Taucar asked that I recuse myself on the grounds of reasonable apprehension of bias, primarily based on statements I had made during the course of and at the conclusion of the hearing.

[4] Upon receipt of this submission, I ordered a copy of the transcript of the hearing. I also wrote to all counsel advising of the availability of the transcript and inviting responses from counsel for the respondents.

[5] Unfortunately, my secretary sent my letter by email to a different J. Tam, who is a lawyer in another Toronto law firm, rather than to the J. Tam who was counsel for the Tribunal on the application. That error was discovered promptly and corrected. By letter dated October 10, 2016, Mr. Taucar asserted further allegations of bias and wrongdoing as a result of this error. After receipt of submissions from opposing counsel, Mr. Taucar sent further written submissions dated October 27, 2016.

[6] For the reasons set out below, I find no basis upon which an informed person could have a reasonable apprehension of bias with respect to any of the arguments advanced by Mr. Taucar. Having decided that I would not recuse myself from the Panel, I conferred with my colleagues who were both in agreement with my conclusion.

[7] Prior to receipt of the first correspondence from Mr. Taucar, the Panel had already decided that Howard J. would undertake the first draft of the Panel’s Reasons dismissing the judicial review application. I have reviewed and am in agreement with his Reasons. That decision is being released at the same time as this one.

Process

[8] In his initial correspondence, Mr. Taucar submitted that “Justice Molloy should consider whether a reasonable apprehension of bias arises with respect to her and whether it is proper or permissible for her to continue deciding this Application, and also whether the other panel members will exercise their right to control the process before them to have the panel struck and a new panel constituted to hear the application de novo.” He relied upon the Divisional Court’s decision in SOS-Save Our St. Clair Inc. v. Toronto (City).[^1]

[9] In that case, an allegation had been made that Matlow J. should be disqualified from participating in the decision of a three-member panel of the Divisional Court on the grounds of reasonable apprehension of bias, based on his outspoken opposition to a development project near his home, which was related to the subject matter of the application before the Panel. The decision was made in the first instance by Matlow J., who refused to recuse himself. The other two members of the Panel (Greer and E. Macdonald JJ.) agreed that the recusal issue should first be determined by Matlow J., but disagreed with his conclusion. They found that there was a reasonable perception of bias and that principles of natural justice required them to stand down, such that a new panel would have to be constituted.

[10] I agree that this is the appropriate procedure. I note that a similar procedure was followed by Bastarache J. in Arsenault-Cameron v. Prince Edward Island, in which he alone addressed an application requesting that he recuse himself based on a reasonable apprehension of bias. After briefly reviewing the case law setting out the test to be applied, Bastarache J. dismissed the motion, stating:

In conclusion, I find that no evidence was adduced demonstrating that my beliefs or opinions expressed as counsel, law professor or otherwise would prevent me from coming to a decision on the basis of the evidence.[^2]

Subsequently, the appeal was argued before all nine members of the Supreme Court, and the unanimous decision of the Court was co-authored by Major and Bastarache JJ.[^3]

[11] Given that my two colleagues agree there is no reasonable apprehension of bias, there is no need to proceed to the next step of considering whether to strike the Panel.

The allegations of bias advanced

[12] There has been no suggestion that I have any particular stake in this case, nor any basis to be disposed against the Applicant. Rather, the allegations made by Mr. Taucar relate primarily to a comment I made at the conclusion of argument in which, speaking solely for myself, I told Mr. Taucar that I believed it would be in the Applicant’s best interests if she were represented by other counsel in the future. Mr. Taucar submits that this allegation alone would be sufficient grounds to require my recusal.

[13] In addition, in his initial submission, Mr. Taucar alleged that:

(a) I had not read the material in advance of the hearing;

(b) I “appeared to scoff when the doctor’s note was presented for the Applicant’s non-attendance at the hearing” before the Tribunal and “there were other instances of visible agitation on [my] face throughout;” and

(c) I suggested in the course of argument that Vice-Chair Hart could have simply made a mistake in referring to a prior decision, rather than deliberately misrepresenting the content of that decision.

[14] In his letter dated October 10, 2016, Mr. Taucar relied upon the email sent by my secretary as further evidence of my bias. My letter of October 4, 2016 enclosed a brief endorsement inviting submissions. My secretary emailed it to all counsel, but inadvertently sent it by email to a lawyer named Joyce Tam, rather than to Jason Tam, who was counsel for the Tribunal on the argument before the Panel. Based on this, Mr. Taucar argued:

(a) this was further evidence that I still had not read the materials as I did not know who counsel were;

(b) alternatively, Joyce Tam was a lawyer I had retained to represent me in anticipation of a complaint to the Canadian Judicial Council for judicial misconduct and including her in the proceedings was improper;

(c) I had involved my secretary in publishing defamatory remarks to an individual unconnected to the proceeding, thereby exposing my secretary and her employer (the Government of Ontario) to potential liability for defamation;

(d) both the Ontario and federal Attorneys-General may make a complaint about me to the Canadian Judicial Council for having exposed the government to vicarious liability for defamation, and therefore a reasonable person would consider I would not be able to judge this application fairly; and

(e) the email letter was inaccurately addressed to the Applicant personally, although sent to her counsel, as a result of which a reasonable person “would conclude Molloy J. will not decide fairly, and that she will maintain her defamatory attack, regardless of the law, evidence, facts and submissions.”

[15] In his final response submissions, Mr. Taucar added clarification to a point he had made somewhat obliquely in his initial submission. In his first letter, Mr. Taucar maintained that he was a competent lawyer who had acted in a competent manner throughout. He pointed to examples of conduct by opposing counsel, which he contrasted to his own conduct, mentioning in particular the failure of counsel for UWO to address certain points and the failure of respondents’ counsel to file the record or their facta in a timely way. In his letter of October 27, 2016, Mr. Taucar amplified this issue as follows:

If competence of counsel appearing before her was one of the concerns of Molloy J., although Applicant’s counsel has clearly displayed competence, then something should have been said or should be said about instances of questionable competence in relation to Respondent’s counsel, including failure to address key arguments, submissions or law, or to inform oneself of applicable law; failing to address the question posed by the Court; the failures to abide by the Rules of Civil Procedure; making of fallacious submissions, including ad hominem attacks, red herrings, etc; the misstatement of the contents of documents or substance of an argument, which under the circumstances, can only be concluded to have been made knowingly, resulting in a substantial question of unethical behavior arises [sic].

[16] I will address each of these submissions in turn.

Comments at the end of the hearing

[17] At the conclusion of the hearing, I asked all counsel to address the issue of costs, win or lose. Mr. Taucar submitted a bill of costs in which he set out his actual billing rate to his client as $300 per hour, and his claim for partial indemnity costs, also based on $300 per hour. His dockets showed 134 hours of time at $300. In addition, he claimed $100 per hour for the time he spent binding materials and other secretarial-type tasks. The total costs claimed were slightly over $46,000. In response to questions from the Court, Mr. Taucar advised that he had actually charged this amount to his wife (the Applicant), but that she had not yet paid it. Further, he said that although the Applicant had previously paid him $50,000 in fees in relation to this matter, there was now a further $46,000 owing.

[18] Following these submissions, I stated the following:

Well, Mr. Taucar, I am going to speak now for myself, and I know this has been told to you by other courts. The greatest service you could do for your wife/client at this point is to get her other counsel, competent counsel used to dealing with these issues at the Human Rights Tribunal and in this court because you are not well serving her interests. I say that with the most kindness I can muster and out of concern for her, sir. You are not serving her well. We will recess. Thank you. We’ll reserve.

[19] I remain of the view that it would be in the best interests of the Applicant if she were represented by counsel who is familiar with these issues of human rights and judicial review and who is not personally connected to her. I regret having said so at the end of the hearing only because it has resulted in a further time-consuming process for the Respondents and has diverted everyone from the real issues in the case. I do not agree with the submission that my comments are indicative of bias, nor that a reasonable person would perceive that to be the case.

[20] I have not demonstrated, nor do I have, any ill motives towards or negative feelings about the Applicant. The concern that prompted my comment was for safeguarding the best interests of the Applicant. At no time did I impugn the competence of Mr. Taucar. Rather, I stated my concern that he should not be acting for his wife and that independent counsel with competence in the subject areas should be retained. Further, any view I might hold as to the effectiveness of the Applicant’s legal counsel has no impact on my assessment of the merits of this judicial review application, nor my ability to judge it fairly.

[21] I will not detail here the history of these proceedings. However, as I said at the beginning of my remarks to Mr. Taucar, what I told him at the end of the hearing had already been said by other courts before whom he had appeared as counsel for his wife. In particular, on judicial review of an arbitrator’s investigation and report in a related proceeding, the Divisional Court stated the following about Mr. Taucar:

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”.[^4]

[22] Subsequently, another panel of the Divisional Court dismissed a judicial review application with respect to a decision of Vice-Chair Hart, again in a related proceeding, stating:

At 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.[^5]

[23] The remarks I made echo the comments made by other judges of this Court. I said nothing until all counsel had completed their submissions, and I did not in any way prevent Mr. Taucar from making full and proper submissions.

[24] It is not enough that Mr. Taucar may have perceived subjectively that I insulted his professional competence and, therefore, would be unable to decide the case fairly. The question is whether a reasonable informed person, familiar with the context, would have had that perception. The applicable law is well-summarized in the recent Ontario Court of Appeal decision in R. v. Dowholis, as follows:

In order to rebut the presumption of impartiality, a stringent test has been developed by the Supreme Court of Canada. It was first articulated by de Grandpré J. in his dissenting reasons in Committee for Justice v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394, and has been repeatedly endorsed:

[T]he apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.… [T]hat test is "what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

In his reasons in R. v. S. (R.D.), [1997] 3 S.C.R. 484, Cory J. explained, at para. 111, that the test set down by de Grandpré J. “contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case.” The determination is also fact-specific: Wewaykum, at para. 77. The analysis contemplates a hypothetical observer who is informed of all the facts. It does not depend upon the views or conclusions of the litigant or the accused.[^6]

[25] It is well-settled in the case law that there is a strong presumption that judges have conducted themselves fairly and impartially. In Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), the Ontario Court of Appeal held, “Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not of themselves create unfairness.”[^7] The Court in Chippewas also reinforced the importance of context, stating, “In the end, an appellate court should only intervene if satisfied that the trial judge's interventions, considered in the context of the entire trial, created a reasonable apprehension that the trial judge was biased.”[^8] Similarly, in Stuart Budd & Sons Ltd. v. IFS Vehicle Distributors ULC, Epstein J.A. affirmed that “[t]he strong presumption of judicial impartiality is not easily displaced.”[^9] Epstein J.A. also addressed the importance of context, noting that, “Significantly, in assessing whether a judge's presumption of impartiality has been displaced, his or her individual comments or conduct during the hearing of a matter should not be considered in isolation but within the context of the entire proceedings...”[^10]

[26] Mr. Taucar was treated courteously throughout and had every opportunity to make his submissions. The only criticism made at all was after the hearing was over, and even that was framed in a courteous tone and directed solely towards a concern for the Applicant. In my view, the comment I made cannot give rise to an apprehension of bias, particularly when seen in that context.

[27] I have no difficulty deciding this case solely on its merits. Further, in my view, a reasonable person viewing my remarks in context would not have a reasonable apprehension that I would be unable, or would refuse, to do so.

Failure to read the material

[28] In his Notice of Application, Mr. Taucar listed a number of decisions by Vice-Chair Hart which he sought to have set aside: i.e. decisions dated October 11, 2013; January 14, 2014; November 21, 2014; January 28, 2015; April 23, 2015; May 4 and 14, 2015; August 25, 2015; and “any future decisions he may make.”

[29] In the first paragraph of his factum (describing the nature of the application), Mr. Taucar referred to “various decisions” made by Vice-Chair Hart. In the factum’s final paragraph (dealing with the orders requested), he sought “an order quashing Vice-Chair Hart’s decisions.” Neither paragraph sets out the dates of the orders impugned, although there are references to particular orders throughout the factum.

[30] At the outset of the hearing, prior to any argument, I had the following exchange with Mr. Taucar:

JUSTICE MOLLOY: Can we start, Mr. Taucar – because I’m not sure that I’ve got a full handle on it yet, can we start with your identifying, in list form, the decisions you are challenging?

MR. TAUCAR: Yes. Oh, so we’d actually have to go . . .

JUSTICE MOLLOY: It’s not that clear from your factum. You just said ‘various’, but your Amended Notice of Appeal has a list.

MR. TAUCAR: Yes.

JUSTICE MOLLOY: Are all of those . . .

MR. TAUCAR: Yes, so essentially. . .

JUSTICE MOLLOY: All of the ones that are listed in your Amended Notice of Appeal…

MR. TAUCAR: Exactly.

JUSTICE MOLLOY: . . . are the subject of this.

MR. TAUCAR: Exactly, yes.

JUSTICE MOLLOY: Okay, I wasn’t clear that in your factum, you were dealing with all of them.

MR. TAUCAR: Yes. It’s just that I didn’t relist them because of space but that’s – they’re all being challenged.

JUSTICE MOLLOY: Okay.

[31] On the basis of this exchange, Mr. Taucar asserts that I had failed to read any of the material beyond the Notice of Application and the first page of his factum. He alleges, for reasons that escape me, that this is a further illustration of bias.

[32] There is no merit to this submission. I was merely clarifying in advance of the argument precisely which orders were under attack, given that the factum did not list them. That is by no means an indication of bias, but merely an attempt to be sure nothing was omitted in our ultimate analysis of the Applicant’s case.

Scoffing at medical report and facial expressions

[33] At no time during the course of the hearing did I “scoff” at a medical report. Mr. Taucar referred to medical reports from two doctors: Dr. Dief (the Applicant’s family doctor) and Dr. Guiana (a psychiatrist). During the hearing, I expressed no opinion about either of them.

[34] There were several reports by Dr. Dief. When Mr. Taucar first referred to Dr. Dief’s reports (at page 12 of the transcript), Horkins J. referred to the fact that there was no letterhead on one of the reports. Mr. Taucar replied that “he wrote it on plain paper.” I then asked, “Did he write it?” to which Mr. Taucar replied in the affirmative. I said nothing further.

[35] Mr. Taucar referred to the diagnosis of major depression made by Dr. Guaiana a number of times in his submissions. I made no comment. He did not refer to the report itself until the very end of his submissions, at which point my only comments were “Yes” and “Thank you.”

[36] The only medical matter with which I took issue was Mr. Taucar’s submission that, because of positions taken by the UWO in relation to a copyright dispute, the Applicant suffered such mental stress that she had to be “hospitalized.” When Mr. Taucar took us to the documentation supporting this episode of “hospitalization,” I pointed out that the Applicant was seen by a doctor in the Emergency Department, and then was sent home with a recommendation that she consult a doctor. She was never hospitalized, nor was she treated at the hospital. She was merely referred to her own doctor. Mr. Taucar agreed that this was correct. That issue has nothing to do with the medical reports.

[37] I have no idea what “facial expressions” Mr. Taucar is relying upon. I certainly did not deliberately make faces at him. It is possible my feelings of frustration at the lack of clarity in Mr. Taucar’s submissions could be seen on my face. However, that does not constitute bias, nor would a reasonable person believe that to be the case.

Suggestion that the Vice-Chair may have been “mistaken” rather than deliberately misrepresenting his earlier decision.

[38] One of the grounds of bias asserted by Mr. Taucar against Vice-Chair Hart was that the Vice-Chair made a particular finding in his Summary Hearing decision and then later in his Reconsideration decision misrepresented what that prior finding had been.

[39] In his submissions on this recusal motion, Mr. Taucar asserted that when he made that argument, “Justice Molloy intervened stating it might just be a mistake.” He cited this as evidence of bias.

[40] This submission is incorrect in fact and law. I said nothing about the Vice-Chair being mistaken. Howard J. did intervene (at page 37 of the transcript). He suggested to Mr. Taucar that we assume for the purposes of the argument that the Vice-Chair “got it wrong,” ruled adversely to the Applicant, or even made an unreasonable ruling. He then pointed out that what Mr. Taucar needed to convince us of was the “next step…[t]hat delivery of an adverse decision is bias.” Mr. Taucar responded to that suggestion by making further submissions along the same line as before, during the course of which Horkins J. clarified with him that his argument was that the fact that the Vice-Chair said two inconsistent things and then did not address the bias issue was further evidence of bias “as opposed to a mistake.”

[41] Nobody said it “might be a mistake.” However, even if I or one of the other members of the Panel had done so, that is nothing more than probing the nature and extent of a submission in order to fully understand it. This is normal questioning from the Bench in the course of legal argument. It is not evidence of bias, nor can it possibly give rise to a reasonable apprehension of bias.

The email sent to the wrong J. Tam

[42] It is perfectly clear that sending the material to the wrong “J. Tam” is a simple administrative error. It is nonsense to suggest this is an indication that I still had not read the file. It is even more ridiculous to suggest that I had retained this “J. Tam” to represent me on a complaint to the Canadian Judicial Council. I can only assume that the reference to the Canadian Judicial Council is meant as a veiled threat of some kind. I make the same observation with respect to the references to defamation proceedings against my secretary and the Governments of Ontario and Canada.

[43] The Panel met prior to receipt of Mr. Taucar’s initial letter alleging bias and had already unanimously decided that this judicial review application would be dismissed. Therefore, my decision in this case is completely unaffected by anything Mr. Taucar said afterwards, nor am I influenced in any way by any fear of discipline proceedings or civil action against me, my secretary or any government body.

The letter addressed to the Applicant personally

[44] Again, this was a clerical error due to the Applicant and the Applicant’s lawyer having the same surname. The correspondence was sent only to Mr. Taucar. There was no direct contact with the Applicant, as Mr. Taucar knows full well.

Failure to comment adversely on the competence of other counsel

[45] It would appear that Mr. Taucar is of the view that I was not even-handed in that I described him as being incompetent and said nothing about the purported incompetence or misconduct of other counsel. I have already dealt with my comment to Mr. Taucar. As for even-handedness, as far as the hearing before this Panel is concerned, I saw only exemplary conduct and professionalism from the other two counsel and hence had no reason to comment adversely about either of them.

Conclusion

[46] There is no merit to Mr. Taucar’s allegations with respect to bias. I will not recuse myself from participating further in the decision-making in this matter.

MOLLOY J.

C. HORKINS and HOWARD JJ.

[47] We have considered Mr. Taucar’s allegations with respect to bias against Molloy J. We have read the reasons of Molloy J. and concur with her decision.

C. HORKINS J.

HOWARD J.

Released: April 27, 2017

CITATION: Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2603

DIVISIONAL COURT FILE NO.: DC-15-00794-00

DATE: 20170427

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MOLLOY, HOWARD and C. HORKINS JJ.

BETWEEN:

HARUYO TAUCAR

Applicant

– and –

THE HUMAN RIGHTS TRIBUNAL OF ONTARIO, WESTERN UNIVERSITY (formerly known as THE UNIVERSITY OF WESTERN ONTARIO, DONNA PENNEE and LISA ANN KORAB

Respondents

REASONS FOR DECISION No. 1 (Allegation of Bias)

Molloy J.

Released: April 27, 2017

[^1]: SOS-Save Our St. Clair Inc. v. Toronto (City) (2005), 78 O.R. (3d) 331. [^2]: Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, at para. 6. [^3]: Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3. [^4]: Taucar v. University of Western Ontario, 2011 ONSC 3069, 336 D.L.R. (4th) 305, at paras. 12-13 (Div. Ct.), leave to appeal to the Ontario Court of Appeal (unreported) and the Supreme Court of Canada denied, [2011] S.C.C.A. No. 507. [^5]: Taucar v. Ontario (Human Rights Tribunal), 2014 ONSC 1818 (Div. Ct.), at para. 19. [^6]: R. v. Dowholis, 2016 ONCA 801, at paras. 19-20; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259. [^7]: Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, at para. 243; see also Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at paras. 35-39. [^8]: Chippewas, at para. 243. [^9]: Stuart Budd & Sons v. IFS Vehicle Distributors ULC, 2016 ONCA 60, 129 O.R. (3d) 37, at paras. 48, 50, and 72-73; see also Kelly v. Palazzo, 2008 ONCA 82, 89 O.R. (3d) 111, at para. 21, and Martin, at para. 32. [^10]: Stuart Budd & Sons, at para. 49.