CITATION: Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604

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

C.E. Taucar, for the Applicant

Jason Tam, for the Respondent Human Rights Tribunal of Ontario

Frank Cesario, for all other Respondents

HEARD: September 15, 2016

REASONS FOR DECISION No. 2 (Merits of Application)

HOWARD J.

Overview

[1] How much is enough?

[2] This is now the fourth time that the applicant returns to this court with claims involving essentially the same allegations of discrimination and harassment against her previous employer, the University of Western Ontario (now, Western University), that she first raised in 2010.

[3] The applicant, a former sessional instructor employed by the University, filed two applications against the University with the Human Rights Tribunal of Ontario (the “Tribunal” or the “HRTO”), alleging that her rights under the Human Rights Code[^1] to be free of discrimination and harassment in employment had been infringed. Put broadly, the two complaints, filed in 2010 and 2013, took issue with the University’s accommodation of the applicant with respect to her alleged disability, its response to her allegations of harassment, and its decision to select another candidate for a job competition.

[4] The two complaints were consolidated by the Tribunal and were ultimately heard by the Tribunal in May 2015.

[5] Two days before the scheduled hearing, legal counsel for the applicant (who is also the applicant’s husband) advised the respondents and the Tribunal that the applicant would not be attending the hearing and requested that her applications be decided on the basis of the documentary record alone. The respondents objected and advised that they would seek dismissal of her applications if the applicant chose not to attend. The Tribunal took steps to advise the applicant in advance that if she did not attend at the hearing, it would entertain the respondents’ request in her absence.

[6] The applicant was warned, more than once, that if she failed to attend the hearing, the Tribunal may dismiss her applications. Despite the warnings, neither the applicant nor her counsel attended the scheduled hearings.

[7] Accordingly, the hearing proceeded, as scheduled, in the absence of the applicant or her counsel. As expected, the respondents made submissions requesting the dismissal of the applications. In its comprehensive reasons, the Tribunal allowed the respondents’ request and dismissed the applications on the basis that the applicant’s refusal to appear at the hearing constituted an abuse of the Tribunal’s process and, further, that the documentary record was insufficient to establish an evidentiary basis for the applicant’s allegations.

[8] The applicant then requested reconsideration of the Tribunal’s decisions. The Tribunal denied the request for reconsideration on the basis that its decision was fully consistent with the Tribunal’s jurisprudence and procedures and that there were no public interest reasons that outweighed the need for finality of the Tribunal’s decision.

[9] The applicant then commenced this application for judicial review of the Tribunal’s decisions.

[10] For the reasons that follow, the application must be dismissed. In my view, the Tribunal’s decisions were free of any taint of bias and cannot be said to be unreasonable given the merits of the applicant’s complaints and the applicant’s deliberate abuse of the Tribunal’s process.

Factual Background

[11] In order to provide some context to the issues raised by the applicant in this judicial review, it is instructive to provide a brief summary of the applicant’s long history of complaints against the University.

[12] The applicant self-identifies as being of Japanese origin. She began teaching Japanese language instruction courses at the University in the 2004-2005 academic year as a sessional instructor within the Department of Modern Languages.

[13] In July 2009, the applicant filed a discrimination and harassment complaint against one of her colleagues under the collective agreement negotiated between the University and its faculty association. In her complaint, the applicant alleged that she was harassed and discriminated against by her colleague over a period of years. In particular, she alleged that her colleague, who is also of Japanese origin, used Japanese culture to harass and dominate her in various ways.[^2]

[14] The collective agreement between the University and the faculty association included a provision prohibiting discrimination and harassment. The collective agreement also set out a detailed dispute resolution process, which functioned as an alternate to the grievance process, in order to deal with allegations of discrimination and harassment by faculty members against fellow faculty members. Apparently, the faculty association had a policy not to file grievances in cases involving allegations of discrimination and harassment between its members.

[15] The alternate process provided that the University could retain an external investigator to determine whether a complainant has made out a prima facie case of discrimination or harassment. To that end, the University and the faculty association chose Mr. Kenneth Swan from a list of approved persons to be the sole investigator of the allegations in the applicant’s complaint. Mr. Swan, like the other persons on the approved list, has an extensive practice as a neutral grievance arbitrator. Mr. Swan subsequently proceeded to commence his investigation of the applicant’s internal complaint.

[16] On April 19, 2010, the applicant filed an application under the Code alleging discrimination with respect to employment on the basis of disability and reprisal. The respondents named in the application included the University, Ms. Donna Pennee,[^3] and Ms. Lisa Ann Korab,[^4] i.e., the same persons who are included as respondents to this application (collectively, the “University Respondents”).

[17] Having concluded his investigation of the internal complaint, Mr. Swan released a comprehensive 53-page report on September 13, 2010, in which he concluded that there was insufficient evidence to support the allegations set out in the applicant’s complaint. At the conclusion of his investigative report, Mr. Swan summarized his findings as follows:

What seems clear is that the Complainant took an immediate dislike to the Respondent, and characterized her from the outset as scheming, manipulative and dishonest. She asserted that for cultural reasons, she then suppressed her opinion of her colleague, but continued to view all of her conduct through the lens of her initial impression. As discussed above, that led her to regard some conduct that was merely inadvertence, some conduct that was demonstrably collegial, and some conduct that was apparently generous, as part of an ongoing manipulation. The evidence as a whole does not support this view of events.[^5]

[18] By letter dated September 22, 2010, the University advised the applicant and her colleague that, following its review of the complaint and Mr. Swan’s report, it had concluded that there was no evidence to support the applicant’s claims of harassment or discrimination. The University stated that, in its view, Mr. Swan’s report completely exonerated the applicant’s colleague of the allegations made against her and that, accordingly, the University would be taking no disciplinary measures against the colleague.

[19] In response, the applicant commenced three more legal proceedings.

[20] First, the applicant filed a complaint with the Ontario Labour Relations Board against her faculty association under s. 96 of the Labour Relations Act, 1995.[^6] She alleged that her union had breached its duty of fair representation under s. 74 of the OLRA by, inter alia, refusing to file a grievance on her behalf and due to what she alleged was a flawed dispute resolution process applied in her case.

[21] Second, the applicant commenced an application for judicial review against the University and Mr. Swan with respect to Mr. Swan’s report and the University’s reliance upon it. Among other things, the applicant raised several alleged errors of law committed by Mr. Swan, including excess of jurisdiction, failure to exercise jurisdiction, violation of natural justice and procedural unfairness, bias, breach of the Canadian Charter of Rights and Freedoms, omission of evidence, contradiction of evidence, and failure to state reasons.

[22] Third, on October 25, 2010, the applicant filed a second application under the Code against the University, Mr. Swan, and his arbitration services company, alleging discrimination with respect to employment on the basis of race, ancestry, place of origin, citizenship and ethnic origin. The applicant alleged that Mr. Swan discriminated against her by conducting an unfair investigation of her internal complaint and, in particular, that he “discounted her credibility and evidence due to his failure to properly take into account distinct Japanese patterns of communication and behaviour.”[^7] The applicant alleged that the University discriminated against her by accepting the allegedly discriminatory conclusions in Mr. Swan’s report.

[23] On December 14, 2010, the Labour Relations Board dismissed the applicant’s s. 96 complaint and found that the faculty association had not breached its duty of fair representation under s. 74 of the OLRA. The Labour Board concluded that:

Nothing in the application or submissions suggests any arbitrary treatment, discrimination or malice towards the applicant by officials of the [faculty association]. On the contrary, even when met with hostile and confrontational demands, the [faculty association] has continued to provide assistance to the applicant without complaint.[^8]

[24] By interim decision dated March 18, 2011, the Tribunal consolidated the April 2010 and October 2010 human rights applications into one proceeding. It then ordered that consideration of the consolidated complaints be deferred until after the determination of the judicial review proceedings.[^9]

[25] On May 31, 2011, the Divisional Court released its decision on the applicant’s judicial review application. The court held that the application lacked the requisite public character to render it amenable to judicial review. The court held that the alternate process established by the parties under the collective agreement was intended to have the complaint determined in a summary manner, leaving the essential findings to be made by the investigator. Further, the court held that “[o]n the basis of the Investigator’s report, there was no determination that the Provost [of the University] could reasonably have made other than the one she did.”[^10]

[26] In concluding that the applicant’s complaint was essentially an internal university “domestic matter that should be left entirely to the university for resolution,”[^11] the court concluded its analysis with the following observations:

It 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.

However, 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.

It 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.[^12]

[27] In a separate endorsement released August 23, 2011, the court ordered the applicant to pay the University costs on a partial indemnity basis, fixed in the amount of $15,000, all inclusive, payable forthwith.[^13]

[28] The applicant sought leave to appeal the decision of the Divisional Court to the Ontario Court of Appeal. On October 3, 2011, leave was denied with costs to the University.[^14]

[29] The applicant then sought leave to appeal to the Supreme Court of Canada. On April 12, 2012, leave was denied with costs to the University.[^15]

[30] On June 7, 2012, the applicant filed a request to reactivate her 2010 consolidated human rights applications. By its interim decision dated June 29, 2012, the Tribunal reactivated the applications.[^16]

[31] For reasons released April 10, 2013, Vice-Chair Jo-Anne Pickel of the Tribunal concluded, following a summary hearing, that there was no reasonable prospect of success that the Applicant could show that the University breached the Code by accepting and acting upon the findings of fact in the investigation report. The Tribunal further found that the application against Mr. Swan fell outside the jurisdiction of the Tribunal by reason of the doctrine of adjudicative immunity. In the result, the Tribunal dismissed the consolidated applications.[^17]

[32] The applicant then requested reconsideration of the Tribunal’s decision. In its reconsideration decision of May 31, 2013, Vice-Chair Pickel of the Tribunal denied the request, finding that the applicant had not established the existence of any of the criteria in rule 26.5 of the HRTO Rules of Procedure that would justify reconsideration. The Tribunal observed that, consistent with its previous jurisprudence, “a request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered by the Tribunal in its initial decision.”[^18]

[33] Interestingly, the Tribunal addressed the applicant’s claim of reasonable apprehension of bias, which was raised for the first time on the reconsideration request, and dismissed that claim in the following terms:

Relying upon many of the same arguments summarized above, the applicant’s counsel argues that there is a reasonable apprehension of bias in this case. For the same reasons that I cannot conclude that these arguments justify a reconsideration of the Decision, in my view, they do not support an allegation of bias. Moreover, the applicant did not raise any concerns regarding a reasonable apprehension of bias in the hearing. The issues he now raises as signs of a reasonable apprehension of bias appear to relate to his disagreement with my conclusions rather than with the way in which I conducted the hearing.[^19]

[34] On June 25, 2013, the applicant then commenced, for a second time, an application for judicial review, now in relation to the 2013 Tribunal decisions of Vice-Chair Pickel.

[35] On October 11, 2013, following a summary hearing, the Tribunal dismissed portions of the first application as having no reasonable prospect of success and made case management directions for hearing the remaining issues. The applicant’s request for reconsideration of that decision, which alleged a reasonable apprehension of bias, was refused in January 2014.

[36] The applicant filed a further human rights application against the University on December 11, 2013, alleging reprisal in relation to the cancellation of a summer course in 2011 and the failure to hire her to teach courses for the 2013-2014 academic year.

[37] The applicant’s second application for judicial review was dismissed by the Divisional Court for reasons released March 20, 2014. In those reasons, the court held that the applicant’s grounds were “repetitive” and “derivative” of the 2011 application for judicial review and that, “the [Swan investigation] reports 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.”[^20] Moreover, the court found that the Tribunal’s analysis of both the “reasonable prospect of success” test and the doctrine of adjudicative immunity was correct. On the latter point, the court made the following finding:

First, 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.

Second, 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.[^21]

[38] In a separate endorsement released June 26, 2014, the court ordered the applicant to pay the University costs on a substantial indemnity basis, fixed in the amount of $8,088.46, and to the Swan respondents costs on a substantial indemnity basis, fixed in the amount of $15,000, all payable within 30 days of the court’s endorsement.[^22]

[39] The applicant sought leave to appeal the decision of the Divisional Court to the Ontario Court of Appeal. On November 21, 2014, leave was denied with costs.[^23]

[40] The applicant then sought leave to appeal to the Supreme Court of Canada. On May 14, 2015, leave was denied with costs to the University and the Swan respondents.[^24]

[41] By interim order released November 21, 2014, the Tribunal issued an interim order consolidating the December 11, 2013, application with the balance of the previous April 19, 2010, application, which dealt with the remaining allegations relating to an alleged failure to adequately accommodate the applicant’s needs arising from a disability and an alleged disability-related comment.[^25] These are the consolidated applications that are at root of the instant application.

[42] In the interim, the applicant made numerous requests of the Tribunal in respect of the hearing dates for the consolidated applications, including requests to defer the hearing pending the completion of this judicial review process, to change the date and location of the hearing to accommodate her disability, and to record the evidence so that she could review it at her own pace in order to accommodate her comprehension, as English was not her native language.

[43] Vice-Chair of the Tribunal, Mark Hart, who apparently had been assigned to case-manage these proceedings, responded to these and others of the applicant’s requests in numerous interim decisions, which, generally, did not favour the applicants.[^26]

[44] The applicant alleged a reasonable apprehension of bias on nearly every occasion on which the Vice-Chair denied one of her requests.[^27]

[45] A notice of hearing was issued on December 9, 2014, setting hearing dates for the consolidated applications on May 7 and 8, 2015. On December 17, 2014, counsel for the applicant advised that he was not available on those dates and proposed days in April 2015 and also requested the location and start time of the hearing be changed to accommodate the applicant’s disabilities.

[46] The applicant then made a number of requests to amend her application and reiterated her bias allegations. In addition, the respondents asked the HRTO to strike portions of the applicant’s pleadings and dismiss her reprisal allegation for delay. The HRTO addressed these issues in its interim decision issued January 28, 2015. The Vice-Chair found no reasonable apprehension of bias and declined to recuse himself. The reprisal allegations were struck.[^28]

[47] The applicant made further allegations of bias, which were addressed in an interim decision issued February 12, 2015.[^29]

[48] On March 4, 2015, Vice-Chair Hart issued another interim decision, which responded to requests to reconsider previous interim decisions, and more allegations of bias, and provided case management directions in response to the applicant’s accommodation requests.[^30]

[49] New hearing dates were scheduled on consent for May 4 and 7, 2015, and in accordance with the applicant’s accommodation requests, the first two days of the hearing were scheduled in Toronto and were set to commence at noon.[^31]

[50] On March 25, 2015, the Tribunal refused the applicant’s request to defer the hearing, dealt with repeated allegations of bias, and issued further case management directions.[^32]

[51] On April 23, 2015, the Tribunal refused the applicant’s request to adjourn the hearing for medical reasons or to stay the hearing pending service of an application for judicial review.[^33]

[52] On Saturday May 2, 2015 – a mere two days before the scheduled hearing – counsel for the applicant notified the parties and the HRTO that neither he nor the applicant would attend the hearing scheduled for Monday, May 4, 2015, for the following reasons:

In light of the bias, whether reasonable apprehension or actual, concerning Vice-chair Hart, which will be addressed by the Divisional Court and may lead to the invalidating of all his decisions, including the hearing scheduled; and, in light of the Applicant’s medical condition, including being aggravated in appearing before this biased individual and at the prospect of having to attend a re-hearing, the Applicant will not attend the hearing to give evidence. In the circumstances, the Applicant will rely upon the documents already submitted.

In view of the circumstances, Applicant’s counsel will not attend on May 4 and 7, 2015, days on which the Applicant was scheduled to testify. There does not appear to be any need for any counsel or parties to attend on those days.

The Applicant intends to make written submissions, including as to evidence, as well as in relation to bias.[^34]

[53] The respondents objected to the adjournment and cancellation of the hearing and gave notice to both the Tribunal and the applicant that they would ask that the applications be dismissed if the applicant or her counsel did not appear.[^35]

[54] The applicant responded by email correspondence that same day, Saturday, May 2nd, and stated, remarkably, as follows:

In reply … it is the Applicant’s undisputed right to decide how to proceed with her case in the presentation of her evidence.

In light of the circumstances, including bias and the fact that the Court will be deciding upon the matter which may include invalidation of all Vice-chair Hart’s decisions, the Applicant will be submitting documentary evidence in support of her case … it is anticipated that Applicant’s counsel will be attending the hearings scheduled for June, as well as making written submissions. …

In light of her right to present her case in the manner she decides … there appears no point for Applicant’s counsel to attend on May 4 and 7, 2015, days on which the Applicant was scheduled to testify. This is the manner in which, under the circumstances, the Applicant has exercised her right on the to submit her evidence [sic]. Neither the Tribunal nor the Respondents may interfere with her right.[^36]

[55] The HRTO emailed the parties the morning of the hearing, indicating that the applicant’s attendance was expected and that the hearing would proceed. The Tribunal advised the parties that:

The Tribunal acknowledges receipt of correspondence from the parties over the past weekend. The parties, including the applicant, are expected to attend the hearing commencing at 12:00 noon today and the applicant should be prepared to take the stand to provide her testimony in support of her case. If the applicant fails to attend the hearing today, the Tribunal will consider the respondents’ request for the Applications to be dismissed.[^37]

[56] In response to the Registrar’s email, the HRTO received an auto-reply from applicant’s counsel, stating that he was out of the office between May 3, 2015, and May 16, 2015, and would not be able to receive or reply to correspondence.

[57] The respondents attended the hearing, which began after a one-hour recess in order to provide the applicant with an opportunity to appear. When neither the applicant nor her counsel appeared after the recess, the respondents requested that the applications be dismissed.[^38]

[58] The Vice-Chair dismissed the applications on the basis that the applicant and her counsel’s unilateral refusal to testify at the hearing, combined with her counsel’s decision to render himself unavailable for contact on the day of the hearing, was an abuse of the Tribunal’s process.[^39]

[59] The Vice-Chair then went on to find that even if the Tribunal were to accept the Applicant’s documents for their authenticity, the Tribunal was unable to accept them for the truth of their contents. Further, the Vice-Chair reasoned that even if the Tribunal were to proceed as the Applicant insisted, the majority of the Applicant’s allegations would fail due to the Applicant’s failure to prove the essential elements of the allegations before the Tribunal.[^40]

[60] On May 21, 2015, the applicant filed a request for reconsideration.

[61] By its reconsideration decision dated August 25, 2015, the Tribunal denied the applicant’s request, finding that it was the applicant and her counsel’s unilateral refusal to appear at the hearing (and not any denial of natural justice) that resulted in the dismissal of her applications.[^41]

[62] The Vice-Chair dismissed the allegation that he erred in stating that the documents alone could not make out the applicant’s case. The Vice-Chair reiterated that several issues before the Tribunal required the Applicant’s oral testimony. Examples included her assertion that she was “objectively superior” to other candidates in the job competition and that, if discrimination were found, she would be entitled to lost wages on the basis that she should have been employed in the position.[^42]

[63] The Vice-Chair reiterated that his primary reason for dismissing the applicant’s application was her abuse of the Tribunal’s process by unilaterally refusing to attend the hearing and that while some of the issues before the Tribunal may have been resolved on a documentary basis alone, it did not excuse the actions of the applicant and her counsel.[^43]

[64] Accordingly, the Vice-Chair concluded that the Applicant had not met the criteria for reconsideration set out in HRTO Rules of Procedure and denied her request.[^44]

[65] By notice of application for judicial review issued March 30, 2015, the applicant now seeks to set aside the following decisions of Vice-Chair Hart: the interim decision of October 11, 2013; the reconsideration decision of January 14, 2014; the interim decision of November 21, 2014; the interim decision of January 28, 2015; the interim decision of April 23, 2015; the final decision of May 14, 2015; and the reconsideration decision of August 25, 2015.

[66] In the applicant’s factum and in argument before us, counsel for the applicant spent most of his time focussing on the final decision of May 14th and the reconsideration decision of August 25th. That is perhaps understandable given the reality that, unless the applicant satisfies the court that the final decision of May 14th, wherein the Tribunal dismissed the application, and the August 25th decision, wherein the Tribunal denied the reconsideration request, ought to be set aside, any alleged deficiencies in the earlier interim decisions are essentially moot. I adopt the same approach here.

Issues

[67] The issues raised on this application for judicial review are as follows:

1. Has the applicant established that the Tribunal’s decisions are infected with bias?

2. Has the applicant established that the Tribunal’s reconsideration decisions are infected with institutional bias?

3. Has the applicant established that the Tribunal’s decision was unreasonable?

Standard of Review

Bias

[68] The applicant’s allegations of bias raise issues of natural justice and procedural fairness. As such, the analysis does not require a court to engage in the determining the appropriate standard of review. If the applicant is able to establish that the decisions were tainted with bias, the decisions must be set aside.[^45]

Reasonableness

[69] The applicant also submits that the Tribunal’s decisions should be set aside because they are unreasonable. Put broadly, the Tribunal ruled against the applicant on the basis of abuse of process and the Tribunal’s assessment of the merits of the applicant’s case.

[70] The appropriate standard of review in these circumstances is reasonableness. However, the applicant did not concede the point, and while there is some suggestion in her factum that the applicable standard is correctness, the factum is not entirely clear on point.[^46] Certainly, the University Respondents understood that the applicant was advocating a correctness standard.[^47] In these circumstances, it is appropriate to provide some further explanation of my conclusion.

[71] Section 45.8 of the Code provides, in pertinent part, the following:

[A] decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

[72] As the Supreme Court of Canada held in Dunsmuir v. New Brunswick, reasonableness is a deferential standard of review grounded in the principle that “certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions.”[^48]

[73] Expounding on the Supreme Court’s pronouncement in Dunsmuir, the Ontario Court of Appeal recently explained the reasonableness standard in Taylor-Baptiste v. OPSEU as follows:

The reasonableness standard of review recognizes that certain questions coming before administrative tribunals do not lend themselves to only one particular result. Consequently, reasonableness is concerned with both the existence of justification, transparency and intelligibility of the decision-making process, as well as with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Where the reasonableness standard applies to an issue, the person seeking judicial review must show that the tribunal could not reasonably have arrived at the decision it reached.[^49]

[74] In Phipps v. Toronto Police Services Board, the Ontario Court of Appeal confirmed that the standard of reasonableness applies to the HRTO’s interpretation and application of human rights law, which are to be accorded the highest degree of deference in recognition of the Tribunal’s specialized expertise:

An Adjudicator’s decision is not subject to appeal, but only to judicial review: see s. 45.8 of the Human Rights Code … In recognition that the Adjudicator “has a specialized expertise” in the area, the Divisional Court explained that the reasonableness standard accords “the highest degree of deference ... with respect to [the Adjudicator’s] determinations of fact and the interpretation and application of human rights law” (at para. 41). Deference is maintained unless the decision is not rationally supported. The ultimate question is whether the result falls within the Dunsmuir “range of possible, acceptable outcomes which are defensible in respect of the facts and the law”, as the Divisional Court determined that it did (at para. 85).[^50]

[75] Our Court of Appeal confirmed this approach most recently in Hamilton-Wentworth District School Board v. Fair, where Roberts J.A., writing for a unanimous court, held that:

[U]nder the reasonableness standard, as also articulated in Taylor-Baptiste, at para. 40, “the decisions of the Tribunal on determinations of fact and the interpretation and application of human rights law are entitled to the highest degree of deference having regard to the Tribunal’s expertise and specialization.”[^51]

[76] The Divisional Court has also held that the reasonableness standard applies to a decision of the Tribunal to dismiss an applicant’s complaint on the grounds of abuse of process. In Nyonzima v. Ontario (Human Rights Tribunal), the court held that:

With 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.

The 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.[^52]

[77] This Court has also held that the reasonableness standard of review is the appropriate standard where an applicant seeks to review a reconsideration decision of the Tribunal.[^53]

Analysis

Are the Tribunal’s decisions infected with bias?

[78] Almost all of the applicant’s argument before us was devoted to the issue of bias, with counsel also submitting that the alleged evidence of bias is also evidence of the unreasonableness of the Tribunal’s decision.

[79] Although the applicant’s factum speaks of “whether a reasonable apprehension or actual bias arises” from the impugned decisions,[^54] there was absolutely no evidence of any actual bias presented. There was, for example, no evidence that the Vice-Chair had any interest in the subject-matter of the litigation. The claim of actual bias must fail at the outset.

[80] The test for reasonable apprehension of bias has been reviewed by Justice Molloy in the companion decision on bias being released concurrently with this decision.[^55] There is no need to repeat that analysis here.

[81] The grounds for establishing a reasonable apprehension of bias must be substantial and require cogent evidence to rebut the strong presumption of judicial impartiality.[^56] As the applicant concedes in para. 26 of her factum, “[m]ere suspicion is insufficient. Rather, a real likelihood or probability of bias must be demonstrated.” It is, as our Court of Appeal has said, a “stringent test,” and the party who alleges bias bears a “heavy burden.”[^57]

[82] In my view, the applicant here has not discharged that heavy burden.

[83] Indeed, I agree with the submission of the University Respondents, as set out in para. 62 of their factum, that the applicant’s allegation of bias against the Tribunal is “unfounded and can be addressed summarily.”

[84] Counsel for the applicant points to seven particular circumstances which, he says, show evidence of bias on the part of the Tribunal.[^58] I disagree entirely. Indeed, it is not necessary to examine the particulars of his seven examples because the common thread – and fatal flaw – with all of the applicant’s so-called examples is that, at best, they establish no more than the fact that the applicant received a decision adverse to her interests.

[85] It is trite to say that the mere fact that a decision does not favour the applicant or that the applicant disagrees with the decision does not establish that the decision is tainted with bias. By itself, an adverse decision does not rebut the strong presumption of impartiality.

[86] However, I am not satisfied that the applicant, or perhaps even her counsel, appreciates that notion.

[87] I have reviewed the history of the applicant’s litigation quest in some detail above. That history clearly establishes that the same allegations of bias were made repeatedly by the applicant, and by no means were they reserved for Vice-Chair Hart. Indeed, it seems to be somewhat of a habit for the applicant, or perhaps her counsel. If Vice-Chair Pickel denies her reconsideration request, she must be biased. If Mr. Swan’s investigation does not support her allegations, he must be biased. If Vice-Chair Hart rules against her, he must be biased. If a judge is perceived as making an adverse comment against counsel, the judge must be biased.

[88] I agree with the submissions of the University Respondents, as set out in para. 65 of their factum, that a reasonable person with knowledge of the process and context surrounding the impugned behaviour in this case would not find a reasonable apprehension of bias. Indeed, the applicant’s conduct throughout the history of her litigation with the University indicates that it is the applicant, or perhaps her counsel, whose perceptions of what constitutes bias are far from reasonable.

[89] The applicant’s allegations that Vice-Chair Hart’s decisions were tainted with bias are misplaced and utterly devoid of any merit whatsoever.

Are the Tribunal’s reconsideration decisions infected with institutional bias?

[90] As referenced above, in the course of dealing with the applicant’s claims, Vice-Chair made two reconsideration decisions, on January 15, 2014, and August 25, 2015. On both occasions, the Tribunal denied the applicant’s request.

[91] Pursuant to s. 45.7(1) of the Code, any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules. Rule 26.5 of the HRTO’s Rules of Procedure provides the following:

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

1. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

2. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

3. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

4. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

[92] The Tribunal’s Practice Direction on Reconsideration provides litigants with guidance on how the reconsideration process works in practice. The Practice Direction speaks directly to the question of who makes reconsideration decisions, and provides as follows:

Who decides the request?

The Associate Chair, or his or her delegate, reviews all requests for reconsideration and assigns the request to an HRTO adjudicator for decision. In most cases, the request will be assigned to the adjudicator who made the decision which is the subject of the request. This practice has been endorsed by the courts because the original decision maker may be in the best position to know whether a reconsideration request raises new issues or submissions. [Emphasis added.]

[93] In the instant case, consistent with the Tribunal’s practice, Vice-Chair Hart made the two reconsideration decisions in question.

[94] The applicant argues that the Tribunal’s reconsideration decisions are infected with institutional bias because they were decided by the same adjudicator who made the decisions that are the subject of the reconsideration request. In particular, counsel for the applicant submits in para. 48 of his factum that:

Institutional Bias is inherent in the Tribunal’s practice of having the same adjudicator make a reconsideration decision of his or her summary hearing decision. The adjudicator must assess, inter alia, whether or not one’s own decision made a month earlier was wrong, being “in conflict with established jurisprudence.”

[95] There is no merit in this submission.

[96] The very same argument was considered by the Divisional Court, and rejected, in Landau v. Ontario (Minister of Finance). In Landau, the unmarried applicant challenged the Ontario Sales Tax Transition Benefit, arguing that it discriminated against her on the basis of marital and family status because a married person was eligible to receive a larger benefit than was she. The HRTO made a preliminary ruling that it did not have jurisdiction in the matter because the Ontario Sales Tax Transition Benefit was not a “service” for the purposes of s. 1 of the Code. The applicant’s request for reconsideration was denied “on the basis that she was simply re-arguing her case without demonstrating that the earlier decision was in conflict with established jurisprudence.”[^59]

[97] On judicial review of the Tribunal’s original and reconsideration decisions, the applicant in Landau argued that “no one should sit in appeal on a review of his or her own decision.” She submitted that “the Tribunal’s Practice Direction on reconsideration, specifically allowing adjudicators to reconsider their own decisions, is insufficient to avoid the reasonable apprehension of bias.”[^60]

[98] This court rejected the applicant’s allegations of bias, upheld the reconsideration decision of the Tribunal, and held that the Tribunal’s reconsideration practice does not found a claim of bias where a Tribunal member reconsiders his or her own decision. Speaking for the unanimous Divisional Court on this point, Aston J. held:

The mere fact that an adjudicator determines a request for reconsideration of his or her own decision does not, in and of itself, create a reasonable apprehension of bias in the context of this legislative scheme.

A reconsideration is not an appeal or a hearing de novo. More importantly perhaps, there is no right to have a decision reconsidered. Under s.45.7(2) of the Code ”the Tribunal may reconsider its decision” but is not bound to do so. The original decision maker may be in the best position to know whether a reconsideration request raises new issues or submissions. In this case, the applicant has not established anything more than the fact that the Associate Chair was reviewing his own decision. By itself that does not constitute a breach of procedural fairness under this legislative scheme. We would therefore not give effect to this ground of appeal.[^61]

[99] In my view, this court’s decision in Landau is fatal to the same argument advanced by the applicant in this case. Mr. Taucaur’s attempts to distinguish Landau were neither compelling nor persuasive. This ground of the applicant’s challenge must fail.

Has the applicant established that the Tribunal’s decision was unreasonable?

[100] In oral argument before us, while most of the applicant’s submissions were devoted to the issues of bias, the applicant also submitted that the Tribunal’s decisions were unreasonable and ought to be set aside.

[101] Given the standard of review that attaches to the impugned decisions here, the issue for this court is whether the Vice-Chair’s decisions fell within the range of reasonable outcomes. As our Court of Appeal has said, “[o]n judicial review it is not enough that the reviewing court be persuaded that one could arrive at a different decision based on the same evidentiary record. To succeed on judicial review in this case, it was necessary to show the tribunal could not reasonably arrive at the decision it did.”[^62]

[102] Under the Human Rights Code, the Tribunal has a broad range of powers to permit it to adjudicate and resolve proceedings that come before it. Section 40 of the Code directs the HRTO to adopt the practices and procedures provided for in its rules, which, in the opinion of the Tribunal, offer the best opportunity for a fair, just, and expeditious resolution of the merits of the application.

The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.[^63]

[103] To further facilitate this goal, s. 41 of the Code authorizes the Tribunal to adopt practices and procedures that are an alternative to traditional adjudicative or adversarial procedures and which allow the HRTO to control how an application is processed, heard, and decided, either on a preliminary basis or following a hearing on the merits.

This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.[^64]

[104] The Tribunal is specifically empowered by its rules of procedure to address abuses of its process. Rule A8.1 of the Social Justice Tribunals Ontario Common Rules (which apply to the seven adjudicative tribunals, including the HRTO, within the cluster of Social Justice Tribunals Ontario) provides as follows:

The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.[^65]

[105] I pause to note that rule A7.1 of those same SJTO Common Rules requires that all participants in a Tribunal proceeding must treat the Tribunal and other participants with courtesy and respect.

All persons participating in proceedings before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding.[^66]

[106] Further, rule 3.13 of the HRTO Rules of Procedure specifically empowers the Tribunal to proceed in the absence of any party who has received notice of a hearing and fails to attend:

Where a party has been notified of a hearing and fails to attend, the Tribunal may:

(a) proceed in the party’s absence;

(b) determine that the party is not entitled to further notice of the proceedings;

(c) determine that the party is not entitled to present evidence or make submissions to the Tribunal;

(d) decide the Application based solely on the materials before it;

(e) take any other action it considers appropriate.

[107] Within the context of the Tribunal’s statutory scheme, there can be no doubt that the Tribunal’s power to control its own proceedings includes the ability to dismiss an application as an abuse of its process. The question of whether the HRTO should exercise its discretion to dismiss an application as an abuse of process is a question that lies at the heart of the Tribunal’s statutory mandate and specialized expertise.[^67]

[108] In the instant case, the Vice-Chair considered the failure of the applicant and her counsel to attend at the hearing on May 4, 2015, in the context of the statutory scheme governing human rights proceedings, the history of the particular litigation before him, and the merits of the parties’ respective positions. There is nothing unreasonable, or incorrect for that matter, in that approach. The Vice-Chair identified the issues before him as follows:

A proceeding before this Tribunal is a legal proceeding, in which all parties are expected to participate and abide by the Tribunal’s Rules, directions and orders. The failure to do so without reasonable excuse will result in legal consequences. There is no question that the applicant had notice of the hearing date scheduled for May 4, 2015. Indeed, she confirmed that she was available to attend a hearing on that date prior to the date being set. There also is no question that the applicant was aware of the potential consequences of her failure to attend the hearing on May 4, 2015. These potential consequences, namely the dismissal of her Applications, expressly had been set out in the Notice of Hearing.

The issue for me is whether the failure of the applicant or her counsel to attend the hearing is reasonably excused on the basis of her decision not to testify before this Tribunal but instead rely simply upon the documents she had submitted. I agree with applicant counsel that the applicant has the right to decide how to present her case, and that it is open to her to decide whether or not she wants to testify in support of her allegations. There also is no question that the May 4 and 7, 2015 hearing dates were scheduled in Toronto to commence at noon each day as an accommodation for the applicant, on the understanding that she would be testifying and giving her evidence on these two days.

That, however, does not mean that the applicant’s decision not to testify at the hearing automatically results in these hearing dates being cancelled, thereby relieving the applicant or her counsel from their obligation to appear. The scheduling of hearing dates at this Tribunal, as with the courts or any other tribunal, represents an allocation of scarce Tribunal resources to a particular matter in lieu of the allocation of these resources to other pending matters. Similarly, for the parties, the scheduling of hearing dates represents an allocation of scarce resources of legal counsel, the parties themselves and their witnesses in lieu of the allocation of this time to their other work or life activities. It does not fall to the applicant to purport to unilaterally cancel long-scheduled hearing dates and thereby waste the scarce time and resources of the Tribunal and the respondents on the basis of her decision not to testify, communicated to the Tribunal and the respondents on the weekend before the commencement of the hearing on the following Monday.[^68]

[109] I pause to underscore the Vice-Chair’s point about the significance of the applicant’s failure to attend the hearing in the context of the expenditure of the Tribunal’s scarce resources. In my view, in the circumstances of the instant case, the failure to attend a scheduled hearing date of the Tribunal, when one has received appropriate notice of the date, is on its face an act of disrespect of the Tribunal and its process.

[110] The conduct of the applicant and her counsel on this point ought not to be glossed over. For these purposes, I find it instructive to consider whether the applicant and her legal counsel would have conducted themselves in the same fashion if they been involved in a lawsuit before the Superior Court of Justice and if they had decided at the eleventh hour not to attend before the court on the date scheduled for trial or, at the very least, not to send counsel or an agent to appear before the trial judge to speak to the matter. In my hypothetical, I should think it plain that it would not be unreasonable for the trial judge to consider that the conduct of such an applicant or plaintiff was disrespectful of the court’s process.

[111] So too, in such circumstances, I think it plain that it would not be unreasonable for the Tribunal to consider such conduct to be disrespectful of and an abuse of the Tribunal’s process.

[112] For such purposes, I would draw no distinction between the respect that is the court’s due and that which is the Tribunal’s due. As I have indicated above, all participants in the Tribunal’s process have an obligation, pursuant to rule A7.1 of the SJTO Common Rules, to treat the Tribunal and the other participants with respect and courtesy. Moreover, in the context of the professional obligations of legal counsel for the applicant, counsel has an obligation under rule 5.1-1 of the Rules of Professional Conduct of the Law Society of Upper Canada to treat “the tribunal with candour, fairness, courtesy, and respect.” I would note that for the purposes of the Law Society’s Rules of Professional Conduct, rule 1.1-1 defines “tribunal” to include not only courts but also “administrative agencies,” and other adjudicators. The HTRO is clearly a “tribunal” within the meaning of the Rules of Professional Conduct and, as a result, counsel has a duty to treat the Tribunal with no less respect than they would a court.

[113] I am not satisfied that such respect was observed in the circumstances of the instant case.

[114] Further, while much emphasis was placed by the applicant on the Tribunal’s alleged failure to accommodate the applicant’s medical disability and to accede to the “deferral” or adjournment of the proceedings requested by the applicant’s medical practitioners, I would simply note that, without commenting on the merits of that request insofar as the attendance of the applicant is concerned, there is nothing in the material that would have excused the attendance of counsel for the applicant for those same reasons. In other words, even if one were to assume the client was prevented by medical reasons from attending the scheduled hearing, that does not explain why the client’s lawyer was not able and did not attend the scheduled hearing to speak to the matter.

[115] The waste of the resources of the Tribunal occasioned by the failure of the applicant and her counsel were particularized in some degree by the Vice-Chair, who outlined what he had hoped to accomplish on the initial scheduled hearing date even in the absence of the applicant, as follows:

Just because the applicant made a last-minute decision not to testify at the hearing does not mean that the hearing could not have proceeded on May 4, 2015. For example, I had planned to hear opening statements from the parties, including seeking clarification as to the remaining issues and the precise bases upon which the applicant was seeking a finding from this Tribunal that her rights under the Code had been violated. In addition, on the basis of the witness statements and documents submitted by the parties, it appeared to me that there may be a lot of material that was not relevant to the issues before me for determination, and I had intended to invite submissions from the parties regarding the relevance of much of this material. In addition, it is clear from the correspondence filed by applicant counsel that the applicant objects to certain material filed by the respondents, which is an issue upon which I could have heard submissions from the parties and issued a ruling. None of this could be accomplished due to the applicant’s and her counsel’s failure to appear.[^69]

[116] Clearly, and to the Vice-Chair’s credit in attempting to make efficient use of the Tribunal’s hearing dates, there was much that the Tribunal legitimately had hoped to accomplish on the initial May 4th hearing date, even if the applicant did not to attend to give oral testimony on that date. However, the failure of the applicant and, in particular, her legal counsel, to attend the scheduled hearing date entirely defeated the Tribunal’s objectives.

[117] In the result, the Tribunal summarized its reasons as to why the dismissal of the applications was justified and appropriate on the grounds of abuse of process:

The point is that, just because the applicant made a last-minute decision not to testify on her own behalf, does not give her or her counsel the unilateral ability to waste the time and resources of the Tribunal and the other parties that have been committed to this long-scheduled hearing date, particularly given that there are a myriad of other necessary things that could have been accomplished had the applicant fulfilled her obligation to appear at the hearing of the legal proceeding that she herself decided to commence. Were I to allow the applicant to make such a unilateral decision, this would mean that all of the things that could have been accomplished on May 4, 2015 would necessarily have been done on other scheduled hearing dates, thereby unnecessarily using even more scarce and valuable time and resources of this Tribunal and the respondents.

In my view, the actions of the applicant and her counsel in unilaterally deciding not to appear for the hearing on May 4, 2015, on the basis of the applicant’s decision not to testify, in communicating this decision to the Tribunal and the respondents on the weekend prior to the Monday when the hearing was scheduled to commence, and then by counsel apparently absenting himself from his office at a time when he was scheduled to appear at the hearing on the applicant’s behalf, amounts to a gross waste of this Tribunal’s and the respondents’ valuable time and resources and represents an abuse of this Tribunal’s process. On this basis alone, in my view, the dismissal of these Applications is justified and appropriate.[^70]

[118] In my view, the Tribunal’s decision fell within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law.

[119] Further, in my view, where a party as well as her legal counsel fail to attend a scheduled hearing date, particularly where the Tribunal’s Rules of Procedure provide that the Tribunal may proceed in the party’s absence, and where the Tribunal has, additionally, placed the party on express written notice of same, it cannot be said that dismissal of the party’s proceeding was not within the range of possible outcomes.

[120] Indeed, I would say that in such circumstances a dismissal of the proceedings would fall within the range of not only reasonably possible outcomes but also what should be regarded as reasonably contemplated or expected outcomes. As in the Superior Court of Justice, parties to litigation before the HRTO should understand that if they fail to attend scheduled hearing dates before the Tribunal, they do so at their peril. They have no one to blame but themselves, and perhaps their lawyers, where they choose not to attend.

[121] A similar result obtained in Jenner v. Toronto Newsgirls Boxing Club, where the Tribunal was confronted with an applicant who refused to attend the hearing in her matter, despite prior warning that her refusal could result in dismissal of her application. The applicant in Jenner refused to attend the hearing unless the Tribunal agreed to several conditions, including that she would not be examined by the respondents and that she would answer questions only through a conference-call or over Skype. The applicant did not attend the scheduled hearing. The Tribunal found that the merits of the application could not be dealt with in the absence of oral submissions and exercised its discretion to dismiss the application pursuant to rule 3.13, commenting that:

Subsection 43(2) of the Code and Rule 3.5 of the Tribunal’s Rules provide that an Application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions. Although the applicant was willing to waive her right in this regard, the respondents were not. In addition, it is clear from the parties’ pleadings that the merits of the Application could not be disposed of in writing even if the parties had waived their right to make oral submissions. There are important factual issues in dispute which require that witnesses testify under oath or affirmation, and be examined and cross-examined.

The applicant commenced a legal proceeding when she filed her Application with the Tribunal. It is the applicant’s responsibility to attend the hearing and provide evidence in support of the allegations raised in the Application. In the absence of such evidence, the Tribunal is unable to proceed with the Application and there is no onus or responsibility on the respondents to provide evidence in response to allegations.[^71]

[122] I agree with Vice-Chair Hart that, on the basis of the failure of the applicant and her counsel to attend the scheduled hearing date, and the abuse of process doctrine, the dismissal of the applicant’s proceedings was justified and appropriate. Clearly, the Tribunal’s decision in that regard fell within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law.

[123] In my view, many a Tribunal chair, or a trial judge, would have ended their analysis of the proceedings at that stage – and they would have been justified in so doing.

[124] However, while Vice-Chair Hart could have very well concluded his disposition of the proceeding on the basis of the abuse of process doctrine, to his credit, he chose to proceed further and assess the application on its merits. The Vice-Chair then went on to find that even if the Tribunal were to accept the applicant’s documents for their authenticity, it was not available to the Tribunal to accept them for the truth of their contents; he identified five remaining issues that required determination, and then reviewed the evidence available to him on each issues, concluding that the documentary evidence was insufficient by itself to establish the applicant’s claims.[^72] Further, the Vice-Chair reasoned that, by refusing to testify, the applicant deprived the respondents of their ability to test or challenge any assertion made by the applicant that she was more qualified than or at least as qualified as the successful candidates.[^73] Ultimately, the Vice-Chair concluded that even if the Tribunal were to proceed as the applicant insisted, the applications would have been dismissed due to the applicant’s failure to prove essential elements required to support the allegations and to provide an evidentiary basis to support her remedial claims.[^74]

[125] In my view, the Vice-Chair thoughtfully, thoroughly, and carefully analyzed the issues before him. His comprehensive reasons are reasonable and amply supported by the evidentiary record before him. The applicant has failed to show that the Tribunal’s decision was unreasonable.

[126] Similarly, it cannot be said that the Vice-Chair’s reconsideration decision of August 25, 2015 was unreasonable. The Vice-Chair reiterated that it was the unilateral choice of the applicant and her counsel to refuse to appear at the hearing that resulted in the dismissal of her applications, and not any denial of natural justice.[^75] The Vice-Chair reviewed the applicant’s request for reconsideration and concluded that she had failed to identify any established case law or Tribunal procedure with which his final decision was in conflict, that she had not identified any factors that outweighed the public interest in the finality of Tribunal decisions, and that her request did not meet the criteria for reconsideration set out in the Tribunal’s Rules of Procedure.

[127] In my view, the Tribunal’s reconsideration decision fell within the range of reasonable outcomes. The same analysis applies to the other Tribunal decisions which the applicant sought to challenge before us, most of which were ignored in the applicant’s submissions and argument.

[128] In sum, the applicant has failed to establish that the Tribunal’s decisions do not fall within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law. As such, there is no basis to intervene.

Conclusion

[129] For these reasons, the application for judicial review is dismissed in its entirety.

[130] On the question of costs, we heard submissions from the parties at the conclusion of the argument on the merits. The Tribunal took no position with respect to the orders sought by the applicant; it did not seek costs of the proceeding if the application were dismissed and asked that no costs be awarded against it. In the circumstances, there shall be costs order in favour of the Tribunal.

[131] The University Respondents seek their costs in the amount of $12,000 on a substantial indemnity basis. In my view, that award is entirely justified in the instant circumstances for, inter alia, the reasons submitted by Mr. Cesario before us, with which I agree.

[132] I would also note that when this matter was last before this court, in June 2014, having dismissed the applicant’s application for judicial review, the panel ordered the applicant to pay substantial indemnity costs to the University fixed in the amount of $8,088.46, as well as a separate substantial indemnity award of $15,000 to the other respondent investigator. In making those awards, the panel observed, “[a]s was stated in the substantive decision in this matter, the judicial review of the Human Rights Tribunal decision replicated previous litigation and was entirely unfounded. As a result, the continued pursuit of the matter justifies the imposition of substantial indemnity costs.”[^76] In my view, the same considerations apply here.

[133] Moreover, I also recall the comments of that same panel of this court when it dismissed the applicant’s previous judicial review, where the court said:

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.[^77]

[134] Again, the same considerations apply here. One vehicle through which the court may rebuke such litigation is an award of substantial indemnity costs. Such an award is entirely justified here given the applicant’s conduct.

[135] Finally, in terms of the reasonable expectations of the unsuccessful party,[^78] counsel for the applicant provided a bill of costs, which indicated that, had the applicant been successful on the application, counsel would have claimed over $45,000 on behalf of the applicant on a so-called “partial indemnity” basis.[^79] In view of the amount that the applicant apparently would have claimed had she been successful, it does not lie in her mouth to say that the $12,000 claimed by the successful respondents is unreasonable.

[136] In the result, the applicant shall forthwith pay the respondent Western University costs fixed in the amount of $12,000 on a substantial indemnity basis.

J. Paul R. Howard J.

I agree:

Anne Molloy J.

I agree:

C.J. Horkins J.

Released: April 27, 2017

CITATION: Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604

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

REASONS FOR DECISION No.2 (Merits of Application)

Howard J.

Released: April 27, 2017

[^1]: Human Rights Code, R.S.O. 1990. c. H.19 (the “Code”).

[^2]: See Taucar v. University of Western Ontario, 2013 HRTO 597, at para. 12 (“Taucar v. University of Western Ontario (2013)”).

[^3]: One of the responses filed by the University in the human rights proceedings indicates that at all material times Ms. Pennee was the Dean of the Faculty of Arts and Humanities.

[^4]: The University’s response also indicates that at all material times Ms. Korab was a Consultant in the Office of Faculty Relations.

[^5]: See Taucar v. University of Western Ontario (2013), at para. 24.

[^6]: Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“OLRA”).

[^7]: See Taucar v. University of Western Ontario (2013), at para. 1.

[^8]: Taucar v. University of Western Ontario Faculty Association, 2010 74589, 187 C.L.R.B.R. (2d) 54 (On. L.R.B.), at para. 89.

[^9]: Taucar v. University of Western Ontario, 2011 HRTO 550 (“Taucar v. University of Western Ontario (2011)”).

[^10]: Taucar v. University of Western Ontario, 2011 ONSC 3069, 336 D.L.R. (4th) 305 (Div. Ct.), at para. 19.

[^11]: Ibid., at para. 23.

[^12]: Ibid., at paras. 21, 22, and 24. [Emphasis added.]

[^13]: Taucar v. University of Western Ontario Faculty Assn., 2011 ONSC 6593 (Div. Ct.).

[^14]: Taucar v. University of Western Ontario Faculty Assn., 2011 CarswellOnt 15071 (C.A.).

[^15]: Taucar v. University of Western Ontario Faculty Assn., [2011] S.C.C.A. No. 507.

[^16]: Taucar v. University of Western Ontario, 2012 HRTO 1300.

[^17]: Taucar v. University of Western Ontario, 2013 HRTO 597.

[^18]: Taucar v. University of Western Ontario, 2013 HRTO 964, at para. 2.

[^19]: Ibid., at para. 29. [Emphasis added.]

[^20]: Taucar v. Ontario (Human Rights Tribunal), 2014 ONSC 1818 (Div. Ct.), at para. 1.

[^21]: Ibid., at paras. 21-22. [Emphasis added.]

[^22]: Taucar v. University of Western Ontario Faculty Assn., 2014 ONSC 2960 (Div. Ct.).

[^23]: Taucar v. Ontario (Human Rights Tribunal), Court file nos. M43652 and M43989, dated November 21, 2014 (Ont. C.A.).

[^24]: Taucar v. Ontario (Human Rights Tribunal), 2015 CarswellOnt 7047 (S.C.C.).

[^25]: Taucar v. University of Western Ontario, 2014 HRTO 1687.

[^26]: See, for example, Taucar v. University of Western Ontario, 2013 HRTO 1725, at paras. 28-2 and Taucar v. University of Western Ontario, 2014 HRTO 63.

[^27]: See, for example, Taucar v. University of Western Ontario, 2015 HRTO 125; Taucar v. University of Western Ontario, 2015 HRTO 197; Taucar v. University of Western Ontario, 2015 HRTO 257; Taucar v. University of Western Ontario, 2015 HRTO 380; and Taucar v. University of Western Ontario, 2015 HRTO 515.

[^28]: Taucar v. University of Western Ontario, 2015 HRTO 125.

[^29]: Taucar v. University of Western Ontario, 2015 HRTO 197.

[^30]: Taucar v. University of Western Ontario, 2015 HRTO 257.

[^31]: Ibid. at para. 29(b).

[^32]: Taucar v. University of Western Ontario, 2015 HRTO 380.

[^33]: Taucar v. University of Western Ontario, 2015 HRTO 515.

[^34]: Record of the Human Rights Tribunal of Ontario, vol. 3, tab 86, p. 888.

[^35]: Record of the Human Rights Tribunal of Ontario, vol. 3, tab 87.

[^36]: Record of the Human Rights Tribunal of Ontario, vol. 3, tab 88, p. 892.

[^37]: Record of the Human Rights Tribunal of Ontario, vol. 3, tab 89, p. 896.

[^38]: Record of the Human Rights Tribunal of Ontario, vol. 2, tab 34, Taucar v. University of Western Ontario, 2015 HRTO 629, at para. 17 (“Taucar v. University of Western Ontario (Final Decision 2015)”).

[^39]: Ibid., at para. 27.

[^40]: Ibid., at paras. 44-45.

[^41]: Record of the Human Rights Tribunal of Ontario, vol. 2, tab 35, Taucar v. University of Western Ontario, 2015 HRTO 1124, at para. 14.

[^42]: Ibid., at paras. 23-24.

[^43]: Ibid., at para. 25.

[^44]: Ibid., at para. 27.

[^45]: Landau v. Ontario (Minister of Finance), 2012 ONSC 6926, 60 Admin. L.R. (5th) 330 (Div. Ct.), at para. 10. See also Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419, 50 Admin. L.R. (3d) 302 (Div. Ct.), at para. 16; Iyirhiaro v. Ontario (Human Rights Tribunal), 2012 ONSC 3015, 294 O.A.C. 386 (Div. Ct.), at para. 10; Beitel v. College of Physicians and Surgeons of Ontario, 2013 ONSC 4658, 311 O.A.C. 35 (Div. Ct.), at para. 18; and James v. York University, 2015 ONSC 2234, 339 O.A.C. 68 (Div. Ct.), at para. 48.

[^46]: Paragraph 56 of the applicant’s factum appears to advance the correctness standard. However, in fairness to the applicant, much of the balance of her factum spoke of whether the Tribunal’s decision was unreasonable or not, thus connoting a reasonableness standard.

[^47]: See para. 47 of the factum of the University Respondents.

[^48]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

[^49]: Taylor-Baptiste v. OPSEU, 2015 ONCA 495, 126 O.R. (3d) 481, at para. 42. [Citations omitted; emphasis added.]

[^50]: Phipps v. Toronto Police Services Board, 2012 ONCA 155, 347 D.L.R. (4th) 616, at para. 10. The reasonableness standard has been applied in many judicial reviews of human rights applications, including Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81, at paras. 32 and 132; Campbell v. Revera Retirement LP, 2014 ONSC 3233, 323 O.A.C. 57 (Div. Ct.), at paras. 12-14; Dai v. Presbyterian Church in Canada, 2013 ONSC 6650 (Div. Ct.), at paras. 3-4; Pilkey v. Guild Automotive Restorations Inc., 2013 ONSC 3129 (Div. Ct.), at paras. 3-4; Vetricek v. 642518 Canada Inc., 2012 ONSC 5546 (Div. Ct.), at para. 3; and Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 39.

[^51]: Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421, 400 D.L.R. (4th) 526, at para. 41.

[^52]: Nyonzima v. Ontario (Human Rights Tribunal), 2012 ONSC 5120 (Div. Ct.), at paras. 10-11.

[^53]: Iyirhiaro v. Ontario (Human Rights Tribunal), at para. 11.

[^54]: See, for example, the heading immediately preceding para. 24 of the applicant’s factum.

[^55]: Taucar v. Ontario (Human Rights Tribunal), 2017 ONSC 2603 (Div. Ct.), at paras. 24-25.

[^56]: Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, 326 O.A.C. 301, at paras. 58-65; and Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-30.

[^57]: R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at paras. 19 and 18.

[^58]: See pp. 14-23 of the factum of the applicant.

[^59]: Landau v. Ontario (Minister of Finance), at para. 7.

[^60]: Ibid., at para. 15.

[^61]: Ibid., at paras. 16-17.

[^62]: Pieters v. Peel Law Assn., at para. 132.

[^63]: Code, s. 40.

[^64]: Ibid., s. 41.

[^65]: Social Justice Tribunals Ontario Common Rules (“SJTO Common Rules”), rule A8.1. See generally Regulations re Adjudicative Tribunals and Clusters, O. Reg. 59/15, s. 3.

[^66]: SJTO Common Rules, rule A7.1.

[^67]: Nyonzima v. Ontario (Human Rights Tribunal, at para. 11.

[^68]: Record of the Human Rights Tribunal of Ontario, vol. 2, tab 34, Taucar v. University of Western Ontario (Final Decision 2015), at paras. 18-20. [Emphasis added.]

[^69]: Ibid., at para. 21. See also paras. 22-25.

[^70]: Ibid., at paras. 26-27.

[^71]: Jenner v. Toronto Newsgirls Boxing Club, 2009 HRTO 1181, at paras. 12 and 14.

[^72]: Record of the Human Rights Tribunal of Ontario, vol. 2, tab 34, Taucar v. University of Western Ontario (Final Decision 2015), at paras. 30-42.

[^73]: Ibid., at para. 43.

[^74]: Ibid., at paras. 44-45.

[^75]: Record of the Human Rights Tribunal of Ontario, vol. 2, tab 35, Taucar v. University of Western Ontario (Reconsideration Decision 2015), at paras. 14 and 25.

[^76]: Taucar v. Ontario (Human Rights Tribunal), 2014 ONSC 2960, at para. 6 (Div. Ct.).

[^77]: Taucar v. Ontario (Human Rights Tribunal), 2014 ONSC 1818, at para. 19 (Div. Ct.).

[^78]: In exercising its discretion to award costs, the court may consider, pursuant to clause 57.01(1)(0.b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, “the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed.”

[^79]: The applicant’s bill of costs was said to use counsel’s “partial indemnity rate” of $300 per hour, but counsel for the applicant confirmed in his submissions before us that his actual billing rate is $300 per hour. Accordingly, his bill of costs did not seek partial indemnity but rather full recovery.