James v. Human Rights Tribunal of Ontario, 2018 ONSC 5537
DIVISIONAL COURT FILE NO.: 327/16
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. HORKINS, THORBURN and D. EDWARDS JJ.
BETWEEN:
ANTHONY JAMES
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO, TORONTO DISTRICT SCHOOL BOARD, SHELLY MEDIRATTA, DAVE JOHNSON, THE INDIVIDUAL RESPONDENTS LISTED IN SCHEDULE “A”, PAUL ADDIE and AL WOLCH
Respondents
COUNSEL:
Abba Chima, for the Applicant
Sabrina Fiacco, for the Respondent Human Rights Tribunal of Ontario
Tom Moutsatsos and Allison MacIsaac for the Respondent Toronto District School Board
HEARD at Toronto: September 19, 2018
D. EDWARDS J. (Orally)
1Mr. James applies for judicial review in respect to a final decision dated November 12, 2015 and a reconsideration decision dated May 10, 2016 of Adjudicator Ken Bhattacharjee (“Adjudicator”) of the Human Rights Tribunal of Ontario (“Tribunal”). Mr. James had alleged discrimination and reprisal with respect to employment and services.
2The applicant also brings a motion to admit fresh evidence.
Background
3The applicant was hired as a temporary child and youth worker with the Toronto District School Board (“TDSB”) for 2012 – 2013 school year. On June 26, 2013, the TDSB terminated the applicant’s employment. The applicant alleges discrimination and reprisal on the basis of race, color, ancestry, ethnic origin. The applicant stated that the last alleged discrimination occurred on June 26, 2013.
4On July 2, 2014, the applicant received a Confirmation of Receipt of Application from the Tribunal noting that the Application was received on June 27, 2014. On November 3, 2014 the Tribunal sent the applicant a Notice of Incomplete Application, outlining that the Application was filed on June 27, 2014, which was outside the one-year time limit prescribed by s. 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).
5On June 29, 2015, the respondents filed a response denying the allegations and requested the Application be dismissed on a preliminary basis because it was filed outside the one-year time limit required by the Code (“Notice of Request to Dismiss”), and that the applicant did not plead any particulars to establish that his delay in filing the Application had been incurred in good faith as required by s. 34(2).
6The Tribunal advised the applicant of the respondents’ position and ordered that he file a reply including complete submissions with respect to their submissions on the Notice to Dismiss. The applicant filed his reply setting out that the respondents had “put forward no reason or ground to dismiss his application…[and that] his application had been filed in the appropriate timeframe”.
7The Adjudicator found that the Application was not filed until June 27, 2014 and that, as such, the applicant did not file within the one-year time limit required by the Code.
8Given that the applicant was outside the one-year time period, the Adjudicator examined whether the delay was incurred in good faith as required under s. 34(2) of the Code. In his decision, the Adjudicator explains that proving good faith involves “something more than simply showing an absence of bad faith”.
9The Adjudicator found that the applicant did not provide any explanation for the delay in filing his Application, but rather took the position in his reply factum that he filed the Application in a timely manner.
10Therefore, the Adjudicator concluded that, in the absence of evidence that the delay was incurred in good faith, he did not have jurisdiction to deal with the application under s. 34(2) of the Code.
11On December 11, 2015, the applicant filed a Request for Reconsideration of the Tribunal’s final decision. Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request the Tribunal to reconsider a final decision. The Tribunal will not grant a reconsideration unless it is satisfied that one of the four grounds set out in Rule 26.5 are met.
12The Adjudicator rejected the applicant’s Reconsideration Request. He found that the applicant had been put on notice that his Application had been filed outside of the one-year time period. The Adjudicator pointed to four notices that the Tribunal sent to the applicant specifically stating that the Application was filed on June 27, 2014, as well as the direction to the applicant by the Tribunal to respond to the respondents’ Request to Dismiss, including complete submissions on why his Application was delayed.
13Further, the Adjudicator was suspicious of the applicant’s submissions regarding the mode by which he submitted the Application finding that “there is no credible reliable evidence that the applicant filed his Application by fax on June 26, 2014”. In fact, it was at the Reconsideration stage the applicant raised for the first time that he faxed his Application on June 26, 2014. The fax was never produced.
14The Adjudicator concluded that he was not satisfied that the Tribunal’s decision should be reconsidered in accordance with the Rule 26.5(b), (c), and (d).
15I will first consider the motion to admit fresh evidence.
Is fresh evidence admissible?
16On motion before this panel, the applicant brings a motion to admit fresh evidence. The fresh evidence is a copy of an email that the applicant sent to the Tribunal on June 26, 2014 at 9:08 a.m. He immediately received an auto response from the Tribunal stating the form in which the email was sent was not acceptable.
17At 11:18 a.m., the Registrar of the Tribunal sent the applicant an email, acknowledging that the email had been sent, but that they could not retrieve the attached documentation. The Registrar specifically advised that the Tribunal could not access documents sent through an online service provider. Documents must be sent as a separate attachment in an email to the Registrar with a limitation of 10 MBS in any one email. He requested that the applicant resubmit his email with properly attached documents.
18The applicant never complied.
19At no time during the initial hearing or reconsideration hearing did the applicant ever refer to his email of June 26, 2014.
20Affidavit evidence is permissible to supplement the record in exceptional circumstances to demonstrate an absence of evidence on an essential point in the decision (which is to say, to demonstrate a jurisdictional error) or to show a breach of natural justice that cannot be proved by mere reference to the record: Keeprite Workers' Independent Union et al. and Keeprite Products Ltd., at para 170.
21We are not satisfied that the proposed fresh evidence is necessary to disclose a breach of natural justice upon which the record is silent. As well, there is not a complete lack of evidence on an essential point which would allow for the admission of fresh evidence.
22Accordingly, the fresh evidence is not admissible, and that motion is dismissed.
Key Issues
23There are three key issues to consider in this judicial review. They are:
(a) Was the applicant’s right to procedural fairness denied?
(b) Was the Tribunal’s decision reasonable?
(c) Was the Reconsideration decision reasonable?
Standard of Review
24It is settled law that the standard of review is one of reasonableness for decisions from the Human Rights Tribunal, other than with respect to questions of procedural fairness in as much as the court must evaluate whether the requirements of procedural fairness have been met or not.
Analysis
Was the Applicant’s right to procedural fairness denied?
25The applicant was put on notice five times that the Tribunal was concerned that his Application appeared to be filed outside of the relevant time period. He had those opportunities to respond to that issue. Indeed, he was directed to respond to that issue. He chose to not do so.
26There was no denial of procedural fairness.
Was the Tribunal’s decision reasonable?
27The Adjudicator analyzed the evidence and concluded that the Application was filed outside of the one-year period and that there was no evidence that this delay occurred in good faith.
28This decision was a reasonable one based upon the record before him.
Was the Tribunal’s Reconsideration decision reasonable?
29Based upon the evidence before the Adjudicator the reconsideration decision was reasonable. He found that there was no evidence that the delay was made in good faith.
30In support of that conclusion, he rejected the applicant’s evidence that the Application was faxed to the Tribunal on June 26, 2014. This was the first time that the applicant had stated that he faxed, rather than emailed his Application. The Adjudicator found that there was no evidence that had occurred.
31The Adjudicator’s decision was reasonable.
32During oral argument, counsel for the applicant argued that the decisions were not reasonable because the Tribunal did not hear the merits of the complaint.
33However, having made the decision that the application was brought outside of the requisite one-year time period, the Adjudicator had no jurisdiction to consider the merits.
Summary
34We dismissed the applicant’s Application for judicial review.
C. HORKINS J.
35I have endorsed the Application Record as follows: “This application is dismissed. Motion for Fresh evidence dismissed. There are no costs requested. No order as to costs.”
___________________________ D. EDWARDS J.
I agree
C. HORKINS J.
I agree
THORBURN J.
Date of Reasons for Judgment: September 19, 2018
Date of Release: September 24, 2018
CITATION: James v. Human Rights Tribunal of Ontario, 2018 ONSC 5537
DIVISIONAL COURT FILE NO.: 327/16 DATE: 20180919
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. HORKINS, THORBURN and D. EDWARDS JJ
BETWEEN:
ANTHONY JAMES
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO, TORONTO DISTRICT SCHOOL BOARD, SHELLY MEDIRATTA, DAVE JOHNSON, THE INDIVIDUAL RESPONDENTS LISTED IN SCHEDULE “A”, PAUL ADDIE and AL WOLCH
Respondents
ORAL REASONS FOR JUDGMENT
D. EDWARDS J.
Date of Reasons for Judgment: September 19, 2018
Date of Release: September 24, 2018