CITATION: Donovan v. Human Rights Tribunal of Ontario, 2023 ONSC 6746

DIVISIONAL COURT FILE NO.: 699/22 DATE: 2023-12-01

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Backhouse, Matheson and Doyle JJ.

BETWEEN:

Kelly Lynn Donovan

Applicant

– and –

Regional Municipality of Waterloo Regional Police Services Board and Bryan Larkin

Respondent

– and –

Human Rights Tribunal of Ontario

Respondent

Self-represented

Donald B. Jarvis, for the Respondent, Regional Municipality of Waterloo Regional Police Services Board and Bryan Larkin

Brian A. Blumenthal, for the Respondent, Human Rights Tribunal of Ontario

HEARD at Toronto: November 22, 2023 (by videoconference)

Backhouse J.

REASONS FOR JUDGEMENT

1The Applicant, Kelly Donovan, was formerly employed as a Constable with the Waterloo Regional Police Services Board (“WRPSB”). Her employment ceased on June 25, 2017, pursuant to a settlement (the “Resignation Agreement”) negotiated among the Applicant, the WRPSB, and the Applicant’s bargaining agent, the Waterloo Regional Police Association (“WRPA”). The Resignation Agreement settled, among other things, a human rights proceeding commenced by the Applicant against the WRPSB in 2016.

2The Applicant seeks judicial review of a decision of the Human Rights Tribunal of Ontario (the “HRTO”) dated November 25, 2022 (the “Preliminary Hearing Decision”)¹, and the associated reconsideration decision dated March 2, 2023 (the “Reconsideration Decision”)² (hereinafter together referred to as the “Decisions”). The Decisions amongst other things dismissed one of the Applicant’s two allegations of breach of the Resignation Agreement for not having been brought within the limitation period mandated by the Human Rights Code (the “Code”)³. The Reconsideration Decision found that the Applicant did not establish the necessary criteria that would lead to reconsideration of the Preliminary Decision.

3The Applicant submits that insofar as the Decisions determined that one of her allegations of breach was untimely, the Decisions were unreasonable. In addition, the Applicant submits that the HRTO beached procedural fairness obligations. For the reasons set out below, I would dismiss the application for judicial review because the Decisions are reasonable, are entitled to deference and there was no breach of procedural fairness.

Background

4The WRPSB is an agency created under the Police Services Act⁴ that is responsible for the provision of police services to the Regional Municipality of Waterloo. It oversees the Waterloo Regional Police Service (“WRPS”). Bryan Larkin is the former Chief of Police of the WRPS. The WRPSB and Bryan Larkin are collectively referred to hereafter as the “Police Respondents”.

5The Applicant commenced employment as a Constable with the WRPS in 2010. She was represented in her employment by the WRPA and governed by the collective agreement entered into between the WRPSB and the WRPA for uniformed officers (“Uniform Collective Agreement”). The Uniform Collective Agreement provides for a grievance and arbitration process to address all complaints or grievances of members covered by the Uniform Collective Agreement.

6In June 2016, the Applicant filed a human rights application against the WRPSB pursuant to s.34 of the Code at the HRTO alleging gender discrimination and harassment due to gender and family status.

7All matters among the Applicant, the WRPA and the WRPSB (including the Applicant’s resignation from the WRPSB, the 2016 application and potential disciplinary charges against the Applicant were resolved under a Resignation Agreement executed on or about June 8, 2017. The WRPSB and the Applicant executed mutual Releases and agreed, amongst other things, to keep the terms and existence of the Resignation Agreement in absolute and strict confidence except where disclosure is required by law.

8Both the WRPSB and the Applicant have subsequently accused each other of breaching the Resignation Agreement.

The Applicant’s Civil Action commenced May 2018

9In May 2018, the Applicant brought a civil action in the Superior Court of Justice against the WRPSB for breach of the Resignation Agreement, believing that the matter was better suited to the Superior Court. The WRPA had advised the Applicant on February 7, 2018 that her claim should be pursued at the HRTO as a Contravention of Settlement (“COS”) application and drew her attention to the time limits and the process set out in the HRTO’s rules.

10The Applicant’s action alleged that the WRPSB breached the Resignation Agreement on December 21, 2017 when Police Chief Larkin allegedly disclosed confidential information in an affidavit filed in support of a dismissal motion in a class action lawsuit. The Applicant alleged that the anonymized chart with non-identifying particulars of human rights applications that were commenced by female employees of the WRPSB was sufficient to identify the Applicant as having resigned from the police force (the “First Breach”). The Applicant subsequently amended her claim to include a second alleged breach of the Resignation Agreement pertaining to when the WRPSB appealed her WSIB claim (the “Second Breach”). She amended the claim a third time to include allegations of negligence and misfeasance in public office.

11The WRPSB filed a motion to dismiss the Applicant’s action for lack of jurisdiction, failing to disclose a reasonable cause of action and because the action was frivolous, vexatious and/or an abuse of the process of the court. After a number of attendances and court orders in the civil action, the Court of Appeal on March 10, 2022 stayed the Applicant’s action until she had exhausted her remedies under the collective agreement and at the HRTO.⁵

12The WRPA subsequently declined the Applicant’s request to file a grievance alleging a breach of the Resignation Agreement.

The WRPSB’s COS Application to the HRTO

13In June 2018, the WRPSB filed a COS application with the HRTO alleging that the Applicant breached the confidentiality provision of the Resignation Agreement in a number of her public statements. This was 51 days after the Applicant filed her civil action against the WRPSB and she alleges that this was filed out of retaliation and did not disclose any contravention of settlement.

The Applicant’s Civil Application commenced September 18, 2018

14The Applicant filed a separate application with the Superior Court of Justice against the WRPSB on September 18, 2018. Pursuant to section 137.1(3) of the Courts of Justice Act, (“CJA”)⁶, the Applicant sought to dismiss the WRPSB’s COS application before the HRTO on the basis that it was an improper attempt to limit public debate. By decision dated February 1, 2019, the court held that section 137.1(3) of the CJA did not apply to proceedings before the HRTO and that the Superior Court of Justice was without jurisdiction to dismiss the WRPSB’s COS application. During the hearing, the WRPSB undertook not to take the position before the HRTO that the Applicant was out of time to raise substantive arguments before the HRTO in response to the WRPSB’s COS application.⁷

The Applicant’s COS Application to the HRTO

15On July 10, 2018, the Applicant responded to the WRPSB’s COS application, requesting that it be dismissed for lack of jurisdiction, because the action was frivolous, vexatious, was commenced in bad faith, a flagrant abuse of process, untimely and an attack on the Applicant’s fundamental freedoms. The Applicant made no response to the substance of the WRPSB’s allegations, merely requesting the HRTO to dismiss the WRPSB’s COS application. Accordingly, on July 30, 2019, the WRPSB filed a Request for an Order during Proceedings to dismiss the Applicant’s objection, deem the Applicant to have accepted the allegations in the WRPSB’s COS Application and schedule a hearing to address solely the issue of the appropriate remedy.

16On July 19, 2018, the HRTO advised the parties that the WRPSB’s matter would be scheduled for a full day in-person hearing.

17On July 27, 2018, believing she would be prejudiced by the WRPSB’s application proceeding ahead of her civil action, the Applicant filed her own COS application with the HRTO alleging that the Police Respondents had breached the Resignation Agreement.

18On August 10, 2018, the HRTO issued a Notice of Intent to Dismiss (“NOID”) the Applicant’s COS application on the basis that it was untimely for having been filed outside of the prescribed 6-month period. The Applicant did not respond to the HRTO’s NOID, despite being directed to do so.

19On August 14, 2018, the Applicant filed a Form 10 to amend her application to include her allegation regarding the Second Breach.

20The Applicant complained that she was not receiving procedural fairness from the HRTO proceeding with the WRPSB’s application prior to the determination of jurisdiction in her civil action and that the HRTO was selectively enforcing the rules in favour of the Police Respondents. She also alleged that Vice Chair Letheren and the Registrar of the HRTO may be in violation of the HRTO’s Conflict of Interest rules due to the Registrar’s prior position as Chief Instructor and Senior Manager of the Ontario Police College.

21In lieu of the originally scheduled February 22, 2019 HRTO hearing, the HRTO scheduled a Case Management Conference Call (“CMCC”) for February 19, 2019, to address outstanding procedural issues, including the Applicant’s failure to respond to the HRTO’s NOID. In a decision dated February 20, 2019, Vice Chair Letheren directed the Applicant to file her response to the NOID and a response to the WRPSB’s RFOP dated July 30, 2019. The HRTO also consolidated the parties’ respective COS applications and directed that they be heard together.

22Mediation took place on May 1, 2019. Along with her submissions, the Applicant filed a Notice of Constitutional Question that questioned the constitutional validity of Section 137.1 of the CJA and sought a declaration that it is contrary to sections 2 and 15 of the Charter. In an Interim Decision released September 30, 2019, the Tribunal dismissed the s.137.1 request and held that if the Applicant wanted to claim that her Charter rights had been violated or that the CJA was unconstitutional, she would have to bring a civil claim in court. Vice Chair Letheren directed the HRTO to schedule a full-day preliminary hearing to determine whether the Applicant’s COS Application was untimely, whether she can amend her COS Application and whether her production request should be granted. The Interim Decision did not address the Applicant’s request to dismiss the WRPSB’s application.

23On April 10, 2020, the Applicant filed a Form 10 to formally request dismissal of the WRPSB’s application.

24On February 24, 2022, the HRTO released a Case Assessment Direction which set out the issues identified in the September 30, 2019 Interim Decision.

25Following the Court of Appeal for Ontario’s decision dated March 10, 2022, the Applicant filed a further RFOP, on May 24 2022, seeking to amend her COS application to include claims of misfeasance in public office and negligence against the Police Respondents.

26At a Case Management Conference Call the Vice Chair stated that the Applicant’s requests to dismiss the WRPSB’s application were to be dealt with at a hearing on the merits not yet scheduled.

27On May 25, 2022, a Case Assessment Directive was issued directing that a preliminary hearing be scheduled to hear only those issues identified by the previous adjudicator in the September 30, 2019 Interim Decision along with the Applicant’s request to amend her application to reflect her claim before the civil court.

Statutory Framework

28Section 45.9(3) of the Code states that COS applications must be brought within six months of the contravention or, if there was a series of contraventions, within six months after the last contravention in the series. Subsection (4) states that a person may apply under subsection (3) after the expiry of the time limit under that subsection “if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.”

Preliminary Hearing Decision – November 25, 2022

29The preliminary hearing was held September 8, 2022. The Applicant’s request to dismiss the WRPSB’s COS application was not an issue scheduled to be heard nor substantively raised by the Applicant at the September 8, 2022 preliminary hearing.

30One of the primary issues addressed by Vice Chair Burstyn was whether the Applicant could amend her claim to include the Second Breach and whether her COS application regarding the First Breach should be dismissed for delay because it was filed more than six months after the First Breach. The Police Respondents had not challenged the timeliness of the Applicant’s allegations regarding the Second Breach.

31The Vice Chair found that the Applicant was allowed to amend her claim to include the Second Breach of the Resignation Agreement. However, she determined that the Applicant was not permitted to amend her claim to include allegations of misfeasance in public office and negligence because they are “not claims to be determined by the Tribunal” under s. 45.9 of the Code.

32As to whether the Applicant had a good faith explanation for the delay as required by Section 45.9(3) of the Code, the Applicant argued that her COS application was delayed because of her civil action, and she did not want to “abuse the Tribunal’s process by commencing a duplicate proceeding”. The Applicant also argued that she only filed her COS application in the HRTO in response to the WRPSB’s application and to protect her “interests if her civil action was dismissed” and to not be prejudiced in her civil action.

33The Vice Chair was not persuaded that the Applicant had a good faith explanation for the delay in bringing her COS application to the Tribunal, holding that: “filing claims in the wrong forum and/or waiting for the resolution of another proceeding…” and/or ignorance of the law are not good faith excuses for delay.⁸ The Vice Chair held that parties who are waiting for a decision in another forum, but seek remedies in the HRTO, must file within the term limits.⁹

34The Applicant alleged that the issue of timeliness was moot because the addition of the Second Breach demonstrated a “series of contraventions” by the Police Respondents and therefore the six-month limitation period begins after the last incident in the series. If this were true, the Applicant would be within the statutory timeline under s. 45.9(3) of the Code . Vice Chair Burstyn found, however, that the two alleged breaches did not constitute a series because they were too different in nature. Therefore, the COS related to the First Breach was dismissed due to timeliness, but the Second Breach was permitted to proceed. The Applicant was directed to file an amended COS application which only included the Second Breach.

35In addition, Vice Chair Burstyn dismissed the Applicant’s allegations of violations of the HRTO’s Code of Conduct and Conflict of Interest Rules against the HRTO’s former Registrar and Vice Chair Letheren. She found that a reasonable person with knowledge of the applicable provisions of the Code, the HRTO’s processes, the HRTO’s applicable jurisprudence, and the background of this case would not find a reasonable apprehension of bias on the part of the HRTO’s former Registrar or Vice-Chair in the processing of this case. She found no cogent evidence in this case to rebut the strong presumption of judicial impartiality.

Reconsideration Decision – March 1st, 2023

36The Applicant filed a request for reconsideration of the Preliminary Hearing Decision on November 25, 2022. She sought reconsideration of the Vice Chair’s decision to dismiss the First Breach of the Resignation Agreement related to the confidentiality provision of the agreement. The Applicant asked the Tribunal to allow her to proceed with both breaches and to schedule a preliminary hearing to determine whether the WRPSB’s COS application should be dismissed (in whole or in part) because there is no reasonable prospect of success. In short, the Applicant submitted that “there is no issue of delay…because the first and second alleged contraventions form a series and her request to amend her Application to include the second allegation of discrimination was made within six months after the last (i.e. second) contravention in the series”.

37Vice Chair Burstyn found that the Applicant did not establish any of the criteria for a reconsideration of the Preliminary Hearing Decision and dismissed the Request for Reconsideration.

38The Applicant also claimed that she had been denied procedural fairness, mainly as a result of the HRTO’s failure to address her previous requests to dismiss the WRPSB’s COS application which she alleged exemplified an unequal application of the HRTO’s Rules to the parties.

39The Vice Chair found that the Tribunal had the authority to determine how applications proceed. On March 1, 2023, Vice Chair Burstyn issued the Reconsideration Decision that affirmed the Preliminary Hearing Decision.

Issues

1. Was it unreasonable for the HRTO to find that the First Breach of the Resignation Agreement alleged by the Applicant was untimely?

2. Did the HRTO violate their procedural fairness obligations?

Court’s Jurisdiction

40The Divisional Court has jurisdiction to hear this application under s. 2 of the Judicial Review Procedure Act.¹⁰

Standard of Review

41The standard of review on this application is reasonableness, per Canada (Minister of Citizenship and Immigration) v. Vavilov.¹¹ Procedural fairness issues, however, are assessed on a correctness standard in accordance with Baker v. Canada (Minister of Citizenship and Immigration).¹²

Analysis

Issue One: Was it unreasonable for the HRTO to find that the First Breach of the Resignation Agreement alleged by the Applicant was untimely?

42The timeliness issue was raised by the HRTO. While the Police Respondents did not challenge the timeliness of the Applicant’s contravention of settlement allegations at the preliminary hearing, the HRTO is the master of its own process and is entitled to take any action that it determines appropriate, including on its own initiative.¹³

43The Code requires that COS applications be filed: (a) within six (6) months after the contravention to which the application relates; or (b) if there was a series of contraventions, within six (6) months after the last contravention in the series.¹⁴

44In the Reconsideration Decision, the Applicant took no issue with the finding in the Preliminary Hearing Decision that she did not meet the criteria in s.45.9(4) of the Code for establishing that the delay was incurred in good faith and no substantial prejudice will result. Accordingly, the only issue with respect to the timeliness of the Applicant’s allegations on this judicial review is whether they are a “series of contraventions” within the meaning of s. 45.9(3)(b) of the Code.

45The Applicant argued that it was unreasonable for the Member to apply caselaw about what constituted a “series” under s.34.1(b) of the Code to s.45.9(3)(b) of the Code. The sections are reproduced below:

Application by person

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

Late applications

34 (2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

Application where contravention

45.9 (3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

Late applications

45.9 (4) A person may apply under subsection (3) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

46Section 34(1) addresses infringements under the Code while s. 45.9(3) addresses contraventions of human rights settlements. Apart from different time limitation periods, in both provisions, late applications may be accepted under identical circumstances: “a series” of incidents or contraventions.

47As noted in the Reconsideration Decision, giving the same words the same meaning throughout a statute is a basic principle of statutory interpretation. In the Decisions, the term “series” in s.45.9(3)(b) was given the same meaning as the HRTO has given the word in a large body of HRTO decisions when interpreting s.34(1) (b). The same principles that are applied to whether allegations relate to a “series of incidents” under s.34(1)(b) were applied to whether the Applicant’s two alleged contraventions of settlement are a “series of contraventions” under s.45.9(3)(b).

48The Applicant relied on City of Toronto v. Grange¹⁵ for the proposition that once a final incident is found to be timely, all other incidents are presumed to be timely. In Grange the HRT adjudicator found that in the case of allegations of systemic racial discrimination there was no compelling reason to inquire into the timeliness of the various historic allegations prior to hearing evidence on the merits of the claim. The adjudicator declined to dismiss claims as untimely on a preliminary application. This decision was not a final decision and this court declined to review it. It does not assist the Applicant.

49The Applicant further relied on Twyne v. Dominion Colour Corporation,¹⁶ which held that a “series of incidents” may be considered to exist where the incidents share a common theme, similar parties and/or circumstances.

50In this case, the Vice Chair did not find a common theme or similar circumstances to the Applicant’s two contraventions of settlement allegations. Instead, the Vice Chair found that the two allegations were based on discrete and separate facts that engaged different terms of the Resignation Agreement. The HRTO has jurisdiction to determine all questions of fact or law that arise in an application before it.¹⁷ There is nothing unreasonable about this finding.

51The case of McFarlane v. The Regional Municipality of Peel Police Services Board¹⁸ was decided by the HRTO after the Decisions under review here. In McFarlane, the HRTO referred to three prior decisions (in addition to referring to the Decisions under review here) which support that s.45.9(3) should be interpreted similarly to s.34 (1) and (2). Paragraph 51 states:

“The Tribunal has a large body of jurisprudence which sets out the general principles on how the Tribunal interprets the limitation period under ss. 34(1) and (2) of the Code for Applications alleging discrimination under the Code. That jurisprudence has been imported into the interpretation of the limitation period under ss. 45.9(3) and (4) of the Code for Applications alleging a contravention of a settlement of an Application. See for example, The Regional Municipality of Waterloo Police Services Board v. Donovan, 2022 HRTO 1409; Regional Municipality of Waterloo Police Services Board v. Donovan, 2023 HRTO 276; Moore v. Canadian Memorial Chiropractic College, 2018 HRTO 1495; Young-Chin v. P.J. O’Brien Irish Pub and Restaurant, 2013 HRTO 1421; and, Freitag v. Penetanguishene (Town), 2012 HRTO 1644.

52There was nothing unreasonable in the Vice Chair giving the same words the same meaning throughout the statute and importing the caselaw under s.34.1(b) of the Code to s.45.9(3)(b) of the Code.

53For a “series of contraventions” to be established within the meaning of section 45.9(3) of the Code, the HRTO considers the following factors:

1. What is the last alleged incident of discrimination to which the Application relates?

2. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

3. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents or contraventions of a similar nature or character?

4. What is the temporal gap between alleged incidents of discrimination?¹⁹

In respect of factor 3, the HRTO will consider the nature of events and whether they may reasonably be viewed as a pattern of conduct or are comprised of incidents or contraventions relating to discrete and separate issues without some connection or nexus. The HRTO will also consider whether incidents share a common theme and whether they involve similar parties or circumstances. To establish a series of incidents or contraventions, it is not enough for an applicant merely to rely on separate incidents that are alleged to be discrimination on the same ground or are separate breaches of an agreement.²⁰

54There is no error in the determination that the Applicant’s allegations of contravention of settlement on December 21, 2017, and January 11, 2018, did not constitute a series of contraventions. The determination is in accordance with the HRTO’s long established jurisprudence. The Applicant’s two contravention of settlement allegations against the Police Respondents are based on discrete and separate facts that engaged different terms of the Resignation Agreement. The Applicant’s first allegation of contravention (i.e. former Chief Larkin’s affidavit in the proposed class action) is grounded upon an alleged breach of the confidentiality provisions of the Resignation Agreement as the Applicant herself characterized it in her Request for an Order During Proceedings dated May 24, 2022. The Applicant’s second allegation of contravention (i.e. the WRPSB’s alleged appeal of her WSIB claim) is grounded upon a different factual matrix and is rooted in an alleged violation of the release provisions of the Resignation Agreement. The Applicant herself acknowledges that her claim for relief is for “two distinct and separate contraventions of the [Resignation] Agreement”.²¹

55The Applicant’s assertion that the alleged contraventions of settlement on December 21, 2017, and January 17, 2018, form a “series” is based upon nothing more than the fact that they both involve alleged breaches of the Resignation Agreement. This is insufficient to show that the Decisions were unreasonable.²²

56The Applicant’s COS Application was commenced on July 27, 2018. This is over seven (7) months following the Police Respondent’s alleged breach of the Resignation Agreement on December 21, 2017, and, as such, is contrary to section 45.9(3)(a) of the Code.

57The Decisions are internally coherent, rational, and justified in relation to the facts and the law that constrained the Vice Chair and meet the standard of reasonableness.

Issue Two: Did the HRTO violate procedural fairness obligations?

58The Applicant submits that she was denied procedural fairness by the HRTO. She submits that the Registrar of the HRTO has selectively enforced the Tribunal’s Rules in favour of the Police Respondents. In part, she makes this allegation because the HRTO Registrar may have worked with former Police Chief Larkin in previous positions that they both held at the Ontario Police College. She also submits that the Vice Chair’s decision to refuse her recording transcript, to demonstrate this procedural unfairness, was unreasonable.

59The Applicant also submits that, despite her attempts to follow the HRTO’s procedure, the HRTO has refused to address her requests to dismiss the WRPSB’s COS application as a preliminary objection. She submits that the HRTO has regularly dealt with preliminary issues summarily in applications for contravention of settlement. She argues that the HRTO’s refusal to hear her preliminary objections related to the dismissal of the WRPSB’s COS application has “resulted in a protracted, adversarial and costly parallel proceeding” at the cost of the public. She seeks an order that:

“The Tribunal proceed with a preliminary hearing to determine whether or not the respondent Board’s application 2018-33237-S falls within the jurisdiction of the Tribunal, is frivolous, vexatious and was commenced in bad faith, is an abuse of process, is untimely, or has a reasonable prospect that the respondent Board could successfully prove that the resignation agreement has been contravened.

60This request that the court order the hearing to proceed is, in essence, a request for an order of mandamus. For an order of mandamus to be granted, the Applicant must establish four criteria:

(a) the Applicant must have a clear legal right for something to be done;

(b) the duty to be performed must be incumbent on the party that the order is sought to be directed;

(c) the duty must be purely ministerial in nature; and

(d) there must be a demand and a refusal to perform the duty for which performance is being sought.²³

61The Applicant chose to initiate a civil action to pursue her claims of breach of settlement, although she was advised by the WRPA that she should bring her claim in the HRTO. The Court of Appeal ultimately found that either grievance arbitration or the HRTO was the correct forum for the Applicant’s claims. The Applicant’s starting position was not that the HRTO should hear her request to dismiss the WRPSB’s COS application but that her civil action should go ahead, which consumed a significant amount of time and money in court proceedings.

62The HRTO addressed the Applicant’s allegation of procedural unfairness in its Reconsideration Decision. It stated while the Applicant’s request to dismiss the WRPSB’s COS application on the basis of no merit or having been commenced in bad faith remains extant, it would be addressed in due course as determined by the HRTO. This is not a refusal to entertain the Applicant’s request which is an essential element for an order of mandamus. As noted in the Reconsideration Decision, the issues to be determined at the Preliminary Hearing Decision were determined in a previous Interim Decision dated February 20, 2019. The issues to be determined did not include the Applicant’s request to dismiss the WRPSB’s COS application and the Applicant did not substantively raise the issue at the September 8, 2022 preliminary hearing.

63As the HRTO noted in its factum, the Applicant’s request to dismiss the WRPSB’s COS application as having no merit is substantive in nature, likely requiring an evidentiary record. It is related to the merits of the WRPSB’s COS Application, as opposed to a jurisdictional issue such as the timeliness of allegations. In this case, the HRTO determined the timeliness issue was appropriately dealt with before a hearing on the merits.

64There is no requirement under the HRTO Rules of Procedure or the duty of procedural fairness that two separate requests to dismiss an application be heard and decided at the same time, or at all, before a hearing on the merits. The Applicant acknowledges in her factum at paragraph 80 that she was advised by the HRTO Member that her Requests would be dealt with at the merits hearing of the WRPSB’s COS Application.

65The elements of mandamus having not been made out, there is no basis to order the HRTO to proceed with a preliminary hearing to determine the Applicant’s Request to dismiss the WRPSB’s COS application.

66There is no evidentiary basis for the Applicant’s allegation of bias. The Vice Chair’s finding that the Applicant did not meet the “stringent test” and heavy burden”²⁴ on the party who alleges bias was reasonable.

67The multiple times the Applicant has unsuccessfully asked the HRTO to schedule her dismissal request of the WRPSB’s application at a preliminary hearing while proceeding with the WRPSB’s request does not amount to procedural unfairness. The HRTO has advised that it will hear her request which it considers substantive at the merits hearing and it has the right to determine its own process. This does not amount to selectively enforcing HRTO’s Rules in favour of the Police Respondents.

68The claims of bias and procedural unfairness are not made out.

Other Issues

69The HRTO’s decision not to adjudicate the Applicant’s constitutional concerns was decided on September 30, 2019 and are not relevant to this judicial review application. Constitutional concerns were not raised before Vice Chair Burstyn and they do not form part of the Decisions. Accordingly, they do not properly form part of this judicial review application.

Conclusion

70The application is dismissed.

Costs

71As agreed by the parties, costs to the Respondent as the successful party are awarded in the amount of $5000, payable within 30 days.

Backhouse J.

I agree

Matheson J.

I agree

Doyle J.

Released: 2023-12-01

CITATION: Donovan v. Human Rights Tribunal of Ontario, 2023 ONSC 6746

DIVISIONAL COURT FILE NO.: 699/22 DATE: 2023-12-01

Footnotes

1. 1The Regional Municipality of Waterloo Police Services Board v. Donovan, 2022 HRTO 1409.
2. 2The Regional Municipality of Waterloo Police Services Board v. Donovan, 2023 HRTO 276.
3. 3The Human Rights Code, R.S.O. 1990, c. H. 19, as amended.
4. 4Police Service Act, R.S.O.1990, c.P.15.
5. 5Donovan v. Waterloo (Police Services Board), 2022 ONCA 199, at paras. 41-43.
6. 6Courts of Justice Act, RSO 1990, c C.43.
7. 7Donovan v. (Waterloo) Police Services Board, 2019 ONSC 818.
8. 8The Preliminary Hearing Decision, at paras 27 - 29.
9. 9The Preliminary Hearing Decision, at para 30.
10. 10Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
11. 11Canada (Minister of Citizenship and Immigration v. Vavilov,[11] 2019 SCC 65, [2019] 4 S.C.R. 653.
12. 12Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 SCR 817.
13. 13HRTO Rules of Procedure, Rule 1.7 and Rule 13.
14. 14S.45.9(3)(a) and (b) of the Code.
15. 15City of Toronto v Grange, 2016 ONSC 869.
16. 16Twyne v. Dominion Colour Corporation, 2013 HRTO 1769 para.8.
17. 17S.39 of the Code.
18. 18McFarlane v. The Regional Municipality of Peel Police Services Board, 2023 HRTO 863.
19. 19Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 30; James v. The Regional Municipality of Waterloo Police Services Board, 2016 HRTO 206 ["James"], at para. 28. See also paras. 30-31, where the vice-chair did not distinguish the meaning of "series" as between series of incidents and series of contraventions. MacFarlane v. The Regional Municipality of Peel Police Services Board, 2023 HRTO 863, at paras. 10, 33. 52.
20. 20James, ibid, at paras. 29, 34. Pakarian v. Chen, 2010 HRTO 457, at para. 25. AlSaigh v. University of Ottawa, 2012 HRTO 2, at para. 8. 53.
21. 21Request for an Order During Proceedings dated May 24, 2022, at p. 2876, at para. 42. 56.
22. 22James, supra, at para. 34.
23. 23Ash v. Chief Medical Officer of Health of Ontario, 2022 ONSC 1778 (Div. Ct.), at para. 12.
24. 24Hazelton Lanes Inc. v 1707590 Ontario Limited, 2014 ONCA 793 a paras.58-65 and Taucar v. Human rights Tribunal of Ontario, 2017 ONSC 2604.