Ontario Superior Court of Justice - Divisional Court
CITATION: Konesavarathan v. Guelph Mercury et al, 2018 ONSC 2405
DIVISIONAL COURT FILE NO.: 578/16
DATE: 20180427
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kiteley, Pattillo and Sheard JJ.
BETWEEN:
Kovarthanan Konesavarathan
Applicant
– and –
guelph mercury, guelph general hospital, ontario press council, and the human rights tribunal of ontario,
Respondents
Self-Represented
Mitchell Smith, for the Respondent Guelph Mercury
Glenn P. Christie, for the Respondent Guelph General Hospital
Andrew Rance, for the Respondent Ontario Press Council
James Schneider, for the Respondent Human Rights Tribunal of Ontario
HEARD at Toronto: November 1, 2017
Reasons for Decision
BY THE COURT:
[1] The Applicant seeks judicial review of a decision[^1] of the Human Rights Tribunal of Ontario (the “Tribunal”), dated November 10, 2016, in which the Tribunal dismissed an Application pursuant to s. 34 of the Human Rights Code (the “Code”)[^2] on the basis that the Application had no reasonable prospect of success. The Applicant alleged discrimination and reprisal with respect to employment and services. For the reasons that follow, this Application for judicial review is dismissed.
[2] On November 24, 2014, the Applicant signed a Freelance Agreement with Metroland Media Group Ltd., the owner of the Guelph Mercury. Beginning in January 2015, the Applicant became a volunteer member of the Guelph Mercury’s Community Editorial Board that was comprised of 24 members who contributed editorial columns to the newspaper and sat on the Board for one-year terms.
[3] The Guelph General Hospital (the “Hospital”) held an information meeting in April 2015 to which the Applicant and others were invited. Subsequently he wrote articles for the Guelph Mercury on hospital emergency wait times, stroke-related services, and communications issues involving the Hospital. The Guelph Mercury modified his articles before publishing them.
[4] In July 2015, the Applicant, the Hospital and the Managing Editor of the Guelph Mercury sent or received emails that are key to this Application:
(a) an email dated July 17, 2015 from the Applicant to the Hospital with a copy to the Managing Editor in which the Applicant asked for information in response to his specific questions about the Sexual Assault and Domestic Violence Program;
(b) an email dated July 17 from the Managing Editor to the Applicant in which the Managing Editor informed the Applicant that if he wished to pursue content in the manner reflected in his email to the Hospital, “it might be best that you take your leave from the editorial board and seek to be a contributor solely for” other media organizations;
(c) an email dated July 19 from the Applicant to the Managing Editor in which the Applicant lodged an official complaint at the Guelph Mercury that the Hospital discriminated against him based on ethnicity, place of origin, race and colour; and
(d) an email dated July 22 enclosing a letter dated July 22 from the Managing Editor in which the Applicant’s membership on the Community Editorial Board was terminated.
[5] In an email dated July 23, 2015 the Applicant initiated an internal human rights complaint against the Senior Communications Specialist at the Hospital. In a reply email dated August 28, 2015, the Applicant was advised that the Hospital had investigated his complaint and concluded that the staff had conducted themselves in accordance with the Hospital’s Mission, Vision and Values.
[6] In an email dated August 23, 2015 the Applicant filed a complaint with the Ontario Press Council (the “Press Council”) alleging that he was the subject of racial discrimination by the Hospital and alleging that the Guelph Mercury terminated his membership on the Community Editorial Board as reprisal for his complaint to the Hospital about its discrimination. On August 20, 2015, the Press Council considered the complaint and the next day the Applicant was orally advised that the Press Council would not act on the complaint, in part because the Applicant indicated that he intended to make an application to the Tribunal.
Human Rights Tribunal of Ontario
[7] The Application to the Tribunal is dated September 3, 2015. Under grounds claimed, the Applicant listed the following: race, colour, place of origin and ethnic origin in the social areas of contracts, employment, and goods, services or facilities. In explaining why he believed he was discriminated against, the Applicant wrote the following:
The Guelph Mercury terminated my contract when I lodged a complaint on discrimination against race, colour, ethnicity and place of origin. Rather than dealing with the complaint and accommodating the need of a racialized person by ensuring a racial discrimination free environment, the Guelph Mercury got rid of the racialized person.
The Ontario Press Council showed absolute disregard to the Human Rights issues. Its policy caused barriers to internally resolve Human Rights concerns of a racialized person. It failed to regulate its member organizations’ conduct on treating everybody equally or equitably with respect regardless of their race, colour, ethnicity and place of origin. Racial discrimination is an issue faced by the code protected racialized people and this code protected people’s need to address racial discrimination issues was not accommodated by the Ontario Press Council and, in extension, by its member organization, the Guelph Mercury, as well.
The Internal Complaint Service of the Guelph General Hospital did not pay adequate attention to a racialized person’s discrimination concern and did not conduct the investigation with true diligence. The Guelph General Hospital failed to accommodate a code protected racialized person need in addressing racial discrimination issues. The racialized person’s racial discrimination concern was not dealt with up to the standards as it would be to the general people’s complaints.
[8] In the Application, the Applicant self-identified as “South Asian, dark, Sri Lanka, Belongs to Sri Lankan Tamil Ethnicity”.
[9] In Schedule A to the Application, the Applicant set out the details of his complaints. With respect to all of the Respondents, the Applicant alleged discrimination based on race, colour, place of origin and ethnic origin, and with respect to the Guelph Mercury, he also alleged reprisal. In this detailed schedule, he set out his allegations under the categories of characteristics, adverse impact and the link between the characteristics and the adverse impact. He attached eight exhibits including the following:
Exhibit A: a copy of the Freelance Agreement dated November 24, 2014;
Exhibit B: emails from July 2015 between the Applicant and the Managing Editor of the Guelph Mercury. These emails included the Applicant’s email dated July 17, 2015 to the Hospital that listed his questions about the Hospital’s Sexual Assault and Domestic Violence Program, which he had copied to the Managing Editor, and the Managing Editor’s response to him dated July 17. They also included his email to the Managing Editor dated July 19 in which he lodged “an official complaint at Guelph Mercury that Guelph General Hospital discriminated me against my ethnicity, place of origin, race and colour”;
Exhibit C: the letter from the Managing Editor dated July 22, 2015;
Exhibit D: a copy of his email dated July 23, 2015 to the Hospital that constituted his Internal Human Rights complaint;
Exhibit E: emails dated July 19, July 22 and July 29 with respect to the Hospital and the Guelph Mercury;
Exhibit F: his letter dated August 4, 2015 to the Press Council complaining that the Guelph Mercury favoured the Hospital in a manner that compromised journalistic standards and the public interest. In that letter, he attached the July 17 and July 19 emails from the Managing Director, copies of articles that were published and drafts of them with the objective of demonstrating what he alleged was favourable treatment, and a copy of the Canadian Association of Journalists Ethics Guidelines;
Exhibit G: emails between the Applicant and the Hospital with respect to the Applicant’s complaint including an email dated August 28, 2015 from the Hospital advising that there had been a thorough review of the course of events and the actions of those involved. The author advised that the Hospital “processes were followed consistently and that staff conducted themselves in accordance with” the Hospital’s Mission, Vision, and Values.
[10] The Application and exhibits consisted of 109 pages.
[11] The Applicant sought $70,000 in monetary compensation from the Guelph Mercury, the Hospital and the Press Council. He also sought non-monetary remedies, including a reference letter, support for him to publish articles on the case and to create awareness on human rights issues, and that he be hired with reasonable pay to give voice to the marginalized population and to include diversity in the workforce. He also included a list of 10 steps as his remedy for “future compliance.”
[12] On October 9, 2015, the Hospital responded to the Application. The appendix provides a chronology of events starting with April 24, 2015, the date of the information meeting at the Hospital that included the Applicant, and ending with an email dated September 15, 2015 in which the Applicant informed the Hospital that he had filed an application at the Tribunal. The Hospital provided copies of emails including the Applicant’s email dated July 22, 2015 in which he lodged his Internal Human Rights Commission complaint and the Hospital’s email dated August 28, 2015 reporting on its investigation. The Hospital took the position that there was no contractual relationship and no proposal to contract. Alternatively, if there was a contractual relationship, the Hospital denied that there had been a violation of the Code. The exhibits attached consisted of 43 pages including emails, draft articles and published articles.
[13] In its Response dated October 30, 2015, the Press Council took the position that it was not a proper party to the Application and that the Application ought to be dismissed against it. The attachments included its Constitution, the Applicant’s complaint letter dated August 4, 2015, and the email dated August 6, 2015 from the Editor-in-Chief of the Guelph Mercury to the Press Council in which she confirmed that the Applicant was not an employee and was no longer on the Community Editorial Board. The Response and attachments consisted of approximately 35 pages.
[14] The Guelph Mercury’s detailed Response, dated October 30, 2015, contained exhibits including its Harassment and Discrimination Policy, the Freelance Agreement, the “primer” given to Members of the Community Editorial Board and emails about an article the Applicant had written about a local Health Centre. The exhibits also included the drafts of the articles on stroke services and communications strategy, the email dated June 5, 2015 from the Applicant to the Managing Editor in which he described events with the Hospital, emails dated July 17 and 19, the email and letter dated July 22, 2015, the email dated June 6, 2015 from the Applicant to the Managing Editor about the Hospital, and an email the Applicant sent on July 22, 2015 in response to the Managing Editor’s letter of the same date in which the Applicant asked about the Guelph Mercury’s Internal Human Rights Policy and Complaint Procedure. The Response and attached documents consisted of about 90 pages.
[15] The Guelph Mercury denied discriminating against the Applicant. It took the position that it was not in an employment relationship with the Applicant and that the Hospital was not the Applicant’s employer or co-worker, nor was the Hospital the Guelph Mercury’s agent. On those grounds, s. 5(2) of the Code did not apply and the Guelph Mercury had no duty to investigate the allegation the Applicant made against the Hospital. The Guelph Mercury also pointed out that the Applicant had not alleged that his removal from the Community Editorial Board was discriminatory until he filed the Application with the Tribunal. The Guelph Mercury outlined the communications on July 17 and 19 and denied that there was any evidence of reprisal. It took the position that there was no violation of the Code and therefore no remedy was required. In the alternative, it asserted that the remedies sought were excessive, inappropriate and beyond the jurisdiction of the Tribunal to award. The Guelph Mercury made a Request for Summary Hearing pursuant to Rule 19A as did the Hospital in its notice dated November 5, 2015.
[16] The Applicant’s Reply to the Response by the Guelph Mercury, the Hospital and the Press Council is dated December 9, 2015, and, including attachments, many of which had been attached to his Application, consisted of approximately 40 pages including the emails dated July 17 and 19, 2015. The Applicant explained his reasons for opposing the Request for Summary Hearing including his assertion that he had established a prima facie case of discrimination and reprisal in his Application.
[17] In a Case Assessment Direction dated March 16, 2016, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed on the basis that there was no reasonable prospect of success under the Code. In paragraph 13, the Tribunal identified the reasons for holding the summary hearing. It observed that the Applicant might not be able to lead any evidence connecting the Respondents’ conduct to a prohibited ground, that the issue raised by the Applicant might not fall under the Code, and that the Applicant might not be able to establish the necessary element of intent with respect to reprisal.
[18] The Tribunal provided more specific direction with respect to each of the Respondents: the Hospital (paragraphs 19 to 21); Guelph Mercury (paragraphs 22 to 24); the Press Council (paragraph 25).
[19] In paragraph 29 of the Case Assessment Direction, the Tribunal directed the parties to deliver to each other and file any further documents or cases on which they intended to rely not later than 35 days after March 16, 2016.
[20] On April 20, 2016 the Applicant filed a Summary Hearing Brief that, with attachments, was approximately 90 pages. Among other points made, the Applicant stated that his Application mainly alleged racial discrimination. He cited, at length, paragraphs from the Ontario Human Rights Commission’s Policy on Racism and Racial Discrimination and he attached a document from the Press Council website that summarized the Press Council’s decisions in response to other complaints as of May 2015.
[21] None of the Respondents filed a Summary Hearing Brief. The summary hearing was conducted by telephone on August 10, 2016.
Decision of the Tribunal
[22] In a decision dated November 10, 2016, the Tribunal dismissed the Application against all of the Respondents.
[23] The Tribunal summarized its conclusion in paragraph 3. It found that even if all of the facts alleged by the Applicant were accepted as true, and based on the undisputed documentary evidence, the Applicant had not been able to point to any evidence beyond his own suspicions or beliefs that supported his assertions that the actions of the parties were contrary to the Code.
[24] In paragraphs 6 and 7, the Tribunal articulated the test to be applied at the summary hearing as follows:
The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant. In the present case, the allegations of discrimination largely arose out of written communications between the parties, and I have relied on these documents in reaching my conclusions.
However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his belief that he has experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant, to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.
[25] In paragraphs 10 to 21, the Tribunal provided a chronology of events that had occurred beginning in April 2015 when the meeting at the Hospital was held and ending September 14, 2015 with the Applicant’s email informing the Hospital that he had filed an application with the Tribunal.
[26] With respect to the Guelph Mercury, in paragraph 25, the Tribunal assumed that the relationship between the Applicant and the Guelph Mercury was covered by both ss. 3 and 5 of the Code, which was favourable for the Applicant. In paragraphs 26 to 29, the Tribunal concluded, based on the content of the emails dated July 17, July 19 and July 22, that there was no reasonable prospect that the Applicant could establish that the decision to remove him from the Community Editorial Board was intended as reprisal for his raising allegations of discrimination against the Hospital.
[27] In paragraphs 30 to 35, the Tribunal concluded that there was no reasonable prospect that the Applicant could establish that there was any obligation on the Guelph Mercury to conduct an independent investigation of the allegations that the Applicant made against the Hospital.
[28] In paragraphs 36 to 38, the Tribunal concluded that the Applicant had not raised any allegations that could result in a finding of discrimination against the Press Council. The Tribunal observed that the Applicant was, in effect, attempting to force the Press Council to change its mandate.
[29] In paragraphs 40 to 44, the Tribunal concluded that it was not necessary to decide whether there was a service relationship between the Applicant and the Hospital because the Applicant had been unable to point to any evidence that would support his belief that the adverse treatment he claimed he had received was based on a Code ground. In paragraphs 45 to 48, the Tribunal concluded that the Applicant had not been able to point to anything other than his own beliefs or assumptions that the Hospital’s suggestion that he may want to do more work on the column was in any way connected to a Code ground. Nor had he pointed to any evidence to support his claim that the Hospital’s investigation was discriminatory.
Application for Judicial Review
[30] The Application for Judicial Review was issued December 1, 2016. The Applicant sought the following relief:
(a) This Application for Judicial Review is allowed.
(b) The Tribunal’s Summary Hearing decision is set aside.
(c) The matter is sent back to the Tribunal for hearing before a different Tribunal member.
(d) Applicant receives his costs.
(e) This honourable court, in its supervisory role, observe all the procedural and other deficiencies of the Tribunal and make relevant findings and declarations so as to avoid similar problems in the future, in particular problems such as systemic oppression on the self-represented applicants by the lawyers and the Tribunal, provision of unfair procedures to self-represented applicants, making inconsistent decisions when the applicant is self-represented, lack of judicial impartiality and independence, favouritism to lawyer represented side, power abuse and reprisal attempts.
(f) Such further and other orders as the applicant may advise and/or this honourable court may deem just.
[31] In support of his application, the Applicant filed an affidavit sworn March 9, 2017.
Issues to be addressed
[32] We agree with the articulation of the issues reflected in the facta of the Guelph Mercury and the Hospital:
(a) What is the standard of review?
(b) Was the decision to dismiss the Application reasonable?
(c) Was the Applicant denied procedural fairness?
(d) Was there a reasonable apprehension of bias in respect of the Adjudicator?
(e) Does this court have jurisdiction to deal with the Applicant’s allegations of systemic oppression?
Standard of Review and Natural Justice Considerations
[33] Pursuant to the privative clause in s. 45.8 of the Code, decisions on applications to the Tribunal are final and binding and are only subject to judicial review. Furthermore, pursuant to a second privative clause in s. 43(8) of the Code, the failure on the part of the Tribunal to comply with its practices and procedures or in the exercise of a discretion in a particular manner is not a ground for setting aside a decision unless the failure or the exercise of a discretion causes a substantial wrong which affected the final disposition of the matter.
[34] The parties agree that the standard of review is reasonableness[^3] on the basis that certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, such questions may give rise to a number of possible, reasonable conclusions. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. In affording deference, a reviewing court should analyze whether the outcome was within the range of reasonable outcomes in light of the facts and the law. Furthermore, the standard of reasonableness applies to the Tribunal’s interpretation and application of human rights law, which are to be afforded the highest degree of deference in recognition of the Tribunal’s specialized expertise.[^4]
[35] With respect to the issue of natural justice, the Applicant takes the position that the standard of review is correctness.[^5] However, the court need not determine the standard of review. Rather, the court must decide if the requisite fairness was afforded.[^6]
Preliminary Issue
[36] As indicated above, the Applicant has served and filed his affidavit sworn March 9, 2017. According to paragraph 7 of his factum, he relies on the evidence in the affidavit in connection with his allegations of “bias, oppression on self-represented applicants and procedural unfairness.” While the Respondents object to the court receiving and relying on any part of that affidavit, we are satisfied that this is one of those rare circumstances where evidence other than the record of proceedings is allowed in the context of the allegation of procedural unfairness and the allegations of bias and oppression.[^7]
Analysis
1. Was the decision to dismiss the Application reasonable?
[37] In his factum and in his submissions, the Applicant focused on the denial of procedural fairness. He had asked that two hours be allocated for his oral submissions. In his submissions the Applicant spent 70 minutes reviewing the Record of Proceedings and pointing out issues that he thought were important and where he disagreed with the material that had been filed by the Respondents. When prompted to address the reasonableness issue, the Applicant noted that typically more than one outcome was available to the decision-maker. He then reviewed the decision and pointed out passages where he disagreed with or corrected parts of the Tribunal’s decision.
A. Ontario Press Council
[38] The only issue for the Tribunal was whether the Press Council was a proper party to the Application. The Tribunal concluded that the Applicant had not raised any allegations that could result in a finding of discrimination against the Press Council. In paragraphs 36 to 39, the Tribunal recognized that the Press Council is a voluntary organization whose primary role is to consider complaints filed by the public against journalists who do not follow established practices. The Tribunal observed that, in essence, the Applicant was trying to change the mandate of the Press Council.
[39] In his submissions, the Applicant asserted that he did not claim to change the Press Council’s mandate. He took the position that the Press Council policy is a barrier and the Press Council needed to remove the barrier. This is an example of how the Applicant routinely disagrees with observations and findings by the Tribunal.
[40] The Tribunal’s finding arose from a review of the organization’s constitution in the context of the Tribunal’s expertise in determining whether a Respondent to an Application is a proper party. That decision was reasonable.
B. Guelph Mercury and Guelph General Hospital
[41] In paragraph 6, the Tribunal articulated the test of “no reasonable prospect of success” that requires that the Tribunal assume the Applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the Applicant. In other words, the acceptance of the Applicant’s version of events is qualified in two respects.
[42] In that same paragraph the Tribunal noted that the allegations of discrimination largely arose out of written communications on which the Tribunal relied.
[43] The Application asserted claims against the Guelph Mercury for reprisal and for failure to investigate the complaint against the Hospital. The Application asserted claims against the Hospital for discrimination and for the failure to conduct the investigation with “true diligence.” The Applicant’s primary challenge with respect to both of these Respondents is that the Tribunal did not accept all of the facts alleged by the Applicant as true. Instead, he submits that the Tribunal had examined and evaluated the evidence and made findings of fact against him. The Tribunal relied on a document, namely the July 17 email from the General Manager, that the Applicant said he did not rely on, but the Guelph Mercury did. The Tribunal indicated that it relied on “undisputed documentary evidence” but it was clear that he disputed the interpretation of the documents. The Tribunal held that the allegations of discrimination largely arose out of written communications between the parties but the Applicant asserted those written communications had to be tested in a hearing with evidence including cross-examination. The Applicant took the position that the Tribunal had attempted to create a factual foundation against him without a hearing where evidence could be challenged on cross-examination.
[44] Contrary to the Applicant’s assertion, in paragraphs 10 to 21 the Tribunal simply summarized or highlighted passages from emails as background and did not make findings of fact.
[45] The Tribunal made three findings with respect to the Guelph Mercury. In paragraph 25, the Tribunal made a finding in favour of the Applicant that, for purposes of the summary hearing, the relationship between the Applicant and the Guelph Mercury was covered by both ss. 3 and 5 of the Code.
[46] The second finding was with respect to the key allegation of reprisal against the Guelph Mercury. The content of the four emails is summarized in paragraph 4 above. The Applicant took the position that he was removed from the Community Editorial Board by the email/letter dated July 22, 2015, not by the email dated July 17, 2015. He also took the position that the removal was a reprisal for his email dated July 19, 2015 asking that the Guelph Mercury investigate his complaint against the Hospital and for his filing the complaint directly with the Hospital, also on July 19, 2015.
[47] In paragraph 52 of his factum and in his submissions, the Applicant insisted that he had not put the July 17 email into evidence and that Exhibit C to his Application included only the July 22 email/letter. In fact, the Applicant attached a copy of the July 17 and 19 emails in Exhibit B and a copy of the July 22 email in Exhibit C. It is the case that the Guelph Mercury and the Hospital also provided the documents but the Applicant had done so initially.
[48] In other words, the Applicant’s own material provided the four emails, the authenticity and content of which he did not dispute. As a result, it was reasonable for the Tribunal to draw the inference it did from the timing and content of those emails that there was no reasonable prospect that the Applicant could establish that the Guelph Mercury’s termination of membership on the Community Editorial Board was in reprisal for his raising allegations of discrimination against the Hospital.
[49] The third finding is in paragraphs 30 to 34 and is essentially a finding of fact and law. The Tribunal found that there was no reasonable prospect that the Applicant could establish that, by submitting his columns to the newspaper for publication, that created a legal obligation on the Guelph Mercury to conduct an independent investigation of the allegations against the Hospital.
[50] We are satisfied that each of those findings was reasonable.
[51] Insofar as the Hospital is concerned, the Tribunal made two findings. In paragraphs 40 to 44, the Tribunal held that, assuming, without deciding, that there was a service relationship between the Applicant and the Hospital for purposes of the Code, the Applicant had not pointed to any evidence that would support his belief that the adverse treatment he claims he received was based on a Code ground. That finding is based on the absence of evidence from the Applicant and was reasonable.
[52] In paragraph 48, the Tribunal also found that the Applicant had not pointed to anything other than his own beliefs or assumptions that the Hospital’s suggestion that he may want to do more work on the column was in any way connected to a Code ground. Nor did he point to any evidence to support his claim that the investigation was discriminatory. That finding is also based on the absence of evidence from the Applicant and was reasonable.
C. Conclusion on reasonableness
[53] Each of the Tribunal’s findings was justified, transparent and intelligible and within the range of reasonable outcomes in light of the facts and the law. Each is entitled to deference.
2. Did the Tribunal deny the Applicant procedural fairness?
[54] In Baker v. Canada,[^8] the Supreme Court started with the proposition that where an administrative decision affects “the rights, privileges or interests of an individual,” the duty of fairness is triggered. At paragraph 22, the court held as follows:
Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights continued within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
[55] The Supreme Court identified a non-exhaustive list of criteria relevant to deciding the content of the duty of fairness. These five criteria are as follows: the nature of the decision being made; the nature of the statutory scheme; the importance of the decision to the individual affected; the legitimate expectations of the person challenging the decision; and the choices of procedure made by the tribunal, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the tribunal has an expertise in determining what procedures are appropriate in the circumstances.
[56] As indicated in paragraph 30 of these reasons, the Applicant asserts a denial of procedural fairness. He referred to Baker in his factum, although he did not provide his analysis of the applicability of the criteria relevant to deciding the content of the duty of fairness.
[57] As for the first criterion, the decisions made by the Tribunal are important in the context of the province’s commitment to respect fundamental human rights. It follows that the decision was of considerable importance to the Applicant. The statutory scheme is that the Tribunal makes the decision without right of appeal. Judicial review is the only recourse. Applicants would have legitimate expectations that they would have an opportunity to be heard and know the basis upon which the Tribunal made the decision. The Tribunal has broad discretion on how to proceed with an application including, in this case, whether to order a full hearing or to consider whether to dismiss in a summary hearing. The Tribunal is regarded as having expertise in determining what procedures are appropriate in the circumstances.
[58] The Tribunal has established Rules of Procedure that give the decision-maker the ability to choose its own procedures. In this case, two of the Respondents asked for a summary hearing but the Tribunal was not bound to accede to that request. Indeed, in his Reply to Response, the Applicant outlined his opposition to a summary hearing including pointing out that he had established a prima facie case of discrimination and reprisal in his Application.
[59] In the Case Assessment Direction, as indicated in paragraphs 17 and 18 of these reasons, the Tribunal gave notice to the Applicant as to the nature of a summary hearing and gave notice of the three general issues and the specific issues referable to each of the Respondents. The Applicant’s extensive Summary Hearing Brief demonstrates that he was aware of the issues and that he responded to those issues.
[60] The Applicant had the opportunity to be heard, not only in the form of an extensive Summary Hearing Brief, but by participating and making oral submissions as contemplated in s. 43(2) of the Code.
[61] We are satisfied that the Tribunal has provided a fair and open procedure appropriate to the decision being made and its statutory, institutional and social context. The Applicant was not denied procedural fairness.
3. Was there a reasonable apprehension of bias?
[62] The test for a reasonable apprehension of bias was set out in Committee for Justice and Liberty v. Canada (National Energy Board)[^9] as follows:
[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. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would [s/he] think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
[63] Whether an “informed person” could arrive at that conclusion is predicated on the existence and importance of a strong presumption of judicial or quasi-judicial impartiality. In order to overcome the presumption, the Applicant must establish the presence of “serious grounds.” Moreover, the inquiry into whether a reasonable apprehension of bias has been established is highly fact-specific and must be addressed carefully in light of the entire context.[^10]
[64] In his affidavit sworn March 9, 2017, the Applicant describes in detail the Applications in which he had been involved at the Tribunal and the procedures that the Tribunal had followed. In his three volumes of books of authorities and “other materials for perusal,” he includes copies of decisions made by the Tribunal in matters in which he has been involved.[^11]
[65] In that affidavit, the Applicant focuses on what he describes as “a silent conflict (or tension) growing between Vice Chair Bruce Best and me.” He sets out “the relevant facts in chronological order” so as to demonstrate how the “silent conflict . . . evolved and culminated in his dismissing two of my Applications on November 10, 2016.”[^12] The detailed chronology occupies over 20 pages of the affidavit. In paragraph 38 he concludes that the Adjudicator “had departed from established Human Rights Jurisprudence and violat[ed] the principles of natural justice.” In the remaining 16 pages of the affidavit, the Applicant continues to be critical of the Adjudicator’s decisions both as to the procedure followed and the substantive issues that were before him.
[66] The fact that the Adjudicator has rendered a number of decisions adverse to the Applicant does not establish a reasonable apprehension of bias if those decisions are reasonable and sound. For the reasons indicated above, we have found that the Tribunal’s decision to dismiss the Application was reasonable; it follows logically that it was sound.
[67] The Applicant has failed to rebut the strong presumption of quasi-judicial impartiality and integrity extended to administrative tribunals such as the Tribunal and therefore has failed to establish a reasonable apprehension of bias.
4. Does this court have jurisdiction to deal with the Applicant’s allegations of systemic oppression?
[68] In his Application quoted in paragraph 30(e) above, the Applicant is asking the Divisional Court “in its supervisory role” to address alleged systemic oppression by the Tribunal because of the treatment of self-represented applicants and the favouritism towards parties who are represented by counsel. In paragraph 6 of his factum, the Applicant notes that while the application is for judicial review, he “also uses this opportunity to report about the Tribunal’s oppressive conduct towards self-represented applicants.”
[69] At pages 27 to 29 of his factum, the Applicant goes on to assert that the Tribunal engaged in the provision of services to him and in so doing oppressed him. He raises the prospect that this oppression was tainted by discrimination. He concludes his factum as follows:
In my view, Vice Chair Best had an inner hate towards the combination of my Code Characteristics. It was triggered when he perceived that my submissions were confrontational or when he perceived I failed to subordinate myself to him. Therefore, he adopted differential case management practices on my cases. He applied excessive scrutiny to my cases. He significantly exceeded his jurisdiction, abused the statutory power conferred upon him by the Code and took other disproportionate steps to ditch my Applications. It is an indication of discrimination on the part of Vice Chair Best.
My submissions were related to the enforcement of my Human Rights. When I attempted to enforce my Code rights, Vice Chair Best took offence and took the sides of the white lawyers and respondents, and intentionally harmed me by adopting differential case management practices and oppressive behaviors. Therefore, I believe his behavior could have amounted to reprisal contrary to the Code.
However, it is not my intention to prove that Vice Chair Best or the Tribunal discriminated or reprised me, which is almost impossible due to the immunity he enjoys. I just want to show how serious is the oppression of the Tribunal on the Code protected self-represented applicants and how urgent and serious should be the actions to prevent the oppression of the Tribunal on the Code protected self-represented applicants. [Emphasis added.]
[70] In his submissions the Applicant relied on the preamble of the Code, which provides that it is public policy in Ontario to create a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the province. He also relies on s. 34(1) that provides that if a person believes that any of his or her rights under Part 1 have been infringed, the person may apply to the Tribunal for an order. As indicated in paragraph 62 of the decision in Konesavarathan v. City of Guelph et al.,^13 the Applicant relies on these and other excerpts for his submission that discrimination is subjective. He asserts his belief that he has suffered discrimination. In the excerpt from his factum in paragraph 69, it is apparent that he thinks he need only assert the belief in order to establish discrimination. As indicated above, a subjective belief does not suffice.
[71] Assuming for the moment that this court has the jurisdiction to exercise a “supervisory function” to consider the allegation that the Tribunal has systemically discriminated or oppressed the Applicant because he is a member of a group of self-represented litigants, it could not do so on a record that consists almost entirely of evidence of feelings and beliefs rather than objective facts.
C. Costs
[72] At the conclusion of the hearing, the Applicant and counsel made submissions as to costs. The Applicant presented a costs outline that totalled $37,006. On behalf of the Guelph Mercury, the Hospital and the Press Council, each counsel submitted that if the Application was dismissed, the court should award $2000 on a partial indemnity basis to each of them; and if the Application was granted, the court should order total costs to the Applicant of $1006, which was the total of his disbursements. The Tribunal did not ask for costs and took the position it ought not to be ordered to pay costs if the Application succeeded.
[73] The Applicant is opposed to an order that he be required to pay costs. He also pointed out that he has no money and could not pay any order for costs.
[74] The Guelph Mercury, the Hospital and the Press Council were all required to participate in this judicial review application. They have all been successful. Each ought to recover some amount of costs. Given the issues raised and the costs outline of the Applicant, costs of $2000 to each of three Respondents is fair, reasonable, and within the Applicant’s contemplation and should be ordered.
ORDER TO GO AS FOLLOWS:
[75] The Application for judicial review is dismissed.
[76] The Applicant shall pay costs to the Guelph Mercury, Guelph General Hospital, and the Ontario Press Council each in the amount of $2000, payable within 90 days.
Kiteley J.
Pattillo J.
Sheard J.
Released: April 27, 2018
CITATION: Konesavarathan v. Guelph Mercury et al, 2018 ONSC 2405
DIVISIONAL COURT FILE NO.: 578/16
DATE: 20180427
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kiteley, Pattillo and Sheard JJ.
BETWEEN:
Kovarthanan Konesavarathan
Applicant
– and –
guelph mercury, guelph general hospital, ontario press council, and the human rights tribunal of ontario
Respondents
REASONS FOR JUDGMENT
Released: April 27, 2018
[^1]: 2016 HRTO 1454.
[^2]: R.S.O. 1990, c. H.19.
[^3]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 46-47, 53.
[^4]: Shaw v. Phipps, 2012 ONCA 155, 347 D.L.R. (4th) 616, at para. 10.
[^5]: Watterson v. Canadian EMU Co-Operative Inc., 2016 ONSC 6744.
[^6]: Iyirhiaro v. HRTO and TTC, 2012 ONSC 3015, 294 O.A.C. 386.
[^7]: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (C.A.).
[^8]: 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 20.
[^9]: 1976 2 (SCC), [1978] 1 S.C.R. 369.
[^10]: Wewaykum Indian Band v. Canada, 2009 SCC 79, [2002] 2 S.C.R. 245, at paras. 59, 76 and 77.
[^11]: Konesavarathan v. Guelph (City), 2016 HRTO 1453; Konesavarathan v. CPSO et al. C.A.D. dated September 27, 2016 and 2017 HRTO 973; Konesavarathan v. University of Western Ontario et al., 2016 HRTO 908 and 2017 HRTO 1152; Konesavarathan v. The Ontarion Inc., 2017 HRTO 967; Konesavarathan v. Wellington-Dufferin-Guelph Public Health Case Assessment Direction dated July 19, 2016 and 2017 HRTO 199; Konesavarathan v. Ontario Public Interest Research Group C.A.D. October 14, 2016
[^12]: The other application was in Konesavarathan v. City of Guelph et al., 2016 HRTO 1453; 2018 ONSC 2146 (Div. Ct.).