Court File and Parties
CITATION: Shodunke v. Human Rights Tribunal of Ontario, 2024 ONSC 2708
DIVISIONAL COURT FILE NO.: 443/23
DATE: 20240530
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: OLUFEMI SHODUNKE, Applicant
AND:
HUMAN RIGHTS TRIBUNAL OF ONTARIO, OLUMO PROGRESSIVE ASSOCIATION CANADA INC., AINA MURITALA-AJOSE, AFOLABI BAKARE, ADIODUN AJIROBA, AYOOLA ADESOLA, ABIOLA OLOFO, AYODELE FADERIN, RAMAT GIWA, BUNMI SANUSI, TOKUNDO CAXTON-IDOWU, TEJU OYEWOLE, ESTHER ISMAEL, FOLAKE SANYAOLU (ADEKAMBI), LEKAN LASISI, LEKAN ONILUDE, and EGBA NATIONAL ASSOCIATION, Respondents
BEFORE: D.L. Corbett, Matheson and Shore JJ.
COUNSEL: Self-represented Applicant Mindy Noble, for the Respondent Human Rights Tribunal of Ontario
HEARD: May 23, 2024 in Toronto (by videoconference)
Endorsement
[1] The applicant seeks judicial review of a series of reconsideration decisions of the Human Rights Tribunal of Ontario (HRTO). Those decisions range in release date from April to June 2023 (the Reconsideration Decisions). In addition to the HRTO, the respondents to this application are responding parties in one or more of the HRTO decisions that are being challenged. The Reconsideration Decisions refused the applicant’s requests that the HRTO reconsider the dismissal of his fifteen underlying applications to the HRTO.
[2] The applicant had applied to the HRTO alleging discrimination in the provision of services on a listed ground in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code). The applicant named the Olumo Progressive Association Inc., Canada (OPAC), the EGBA National Association, USA & Canada (ENA) and several officers and members of those organizations, as respondents.
[3] The applicant brought separate applications regarding each of the officers, certain members, and the organizations, leading to a total of fifteen applications. The main allegations related to the applicant not being permitted a second term as an ex-officio officer of OPAC or to continue as a member, allegations that the respondents made negative and false allegations against him, the removal of photos from the OPAC website and ongoing significant discord between the applicant and the respondents.
[4] The HRTO gave notice that each of the applications appeared to be outside the HRTO’s jurisdiction because the narrative did not specify any specific acts of discrimination under the Code. The applicant was given the right to make submissions in response to the notices and did so. After review of those submissions, the HRTO dismissed each application for failure to provide some factual basis to link each respondent to a ground enumerated in the Code, beyond bald assertions. The applicant sought reconsideration of each of the decisions.
[5] The applicant submitted the requests for reconsideration to the HRTO in March of 2022. The Reconsideration Decisions were released in the period from April to June 2023. Each decision states: “Unfortunately, due to inadvertence, the Tribunal failed to action this Request for a considerable period of time. The Tribunal regrets the delay this has caused.”
[6] The requests for reconsideration were refused. The applicant sought judicial review but did so more than thirty days after all of the Reconsideration Decisions except the last one.
[7] The application for judicial review raises these issues:
(i) whether there should be an extension to time in order to judicially review all of the Reconsideration Decisions:
(ii) whether the Reconsideration Decisions are unreasonable;
(iii) whether the Adjudicator was biased; and,
(iv) if the Reconsideration Decisions are unreasonable, what is the appropriate remedy.
[8] With respect to the extension of time, this application was commenced within the required 30-day time period with respect to the HRTO reconsideration decision dated June 20, 2023. The application was late with respect to the rest of the Reconsideration Decisions. The applicant therefore seeks an extension of time. He submits that it made sense to receive all of the Reconsideration Decisions first, rather than commencing multiple applications for judicial review.
[9] We accept the applicant’s explanation for the delay. The applicant brought this application within a few months from the release of a series of related decisions and within 30 days from the last decision. Further, the decisions were released after a very lengthy delay by the HRTO and there is no evidence of prejudice. However, to get an extension of time, the applicant must also show that there are apparent grounds for relief. Although we are not persuaded that there are those grounds, we have considered the merits of the application for all of the Reconsideration Decisions and address them below.
[10] To obtain relief on this application for judicial review, the applicant must show that the Reconsideration Decisions are unreasonable.
[11] As set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 13: “Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.”
[12] The reviewing court asks “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”: Vavilov, at para. 99. In applying the reasonableness standard, the court takes into account the expertise of the tribunal: Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, at para. 82.
[13] The applicant bears the burden of showing that each of the Reconsideration Decisions is unreasonable. In each case, the Adjudicator considered the submissions of the applicant and concluded that the grounds for a reconsideration had not been met.
[14] The underlying applications all stemmed from the same general course of events. While we will not attempt to summarize the entire record here, the applicant complained that officers of OPAC, certain members, and the above two organizations, discriminated against him. The applicant made numerous general allegations that he was treated unfairly by the individual respondents and both organizations and alleged that they retaliated against him. He alleged that there were harsh words between them and that his family photos were unfairly taken down off the OPAC website.
[15] In his written submissions, the applicant says that the respondents offended his “inherent dignity” and his “equal and inalienable rights” as referred to in the Preamble to the Code. He also relies on the values in the Canadian Charter of Rights and Freedoms, submitting that the respondents failed to accommodate his right to free speech including his right to contribute his opinions at meetings.
[16] We have considered all the submissions and information that the applicant put forward in support of his application for judicial review, including the record of the proceedings from all fifteen reconsiderations. The applicant submits that he put forward sufficient information to support his applications and to support his requests for reconsideration. He therefore submits that the Reconsideration Decisions are unreasonable.
[17] This Court has stressed that discretionary findings with respect to the HTRO controlling its own process and adjudicating requests for reconsideration in applications under the Code “are areas of expertise unique to the Tribunal. …A high degree of deference should be accorded to such decisions”: Mohmand v. Human Rights Tribunal of Ontario and Ultimate Currency Exchange 2021 ONSC 528, at para. 19.
[18] In each Reconsideration Decision, the Adjudicator applied the Tribunal’s rule regarding reconsideration, including the applicable grounds for reconsideration. The Adjudicator was not persuaded that any of the grounds for reconsideration were met. Specifically, the Adjudicator found as follows:
that there were no new facts or evidence submitted on the request for reconsideration that could potentially be determinative of the case and that could not have been submitted earlier;
that there was no conflict with established jurisprudence or Tribunal procedure; and
that there were no other factors that, in the opinion of the Tribunal, outweighed the public interest in finality of the Tribunal decisions.
[19] It may well be that there was substantial discord in the relationships between the applicant and the respondents. However, the issue before the Adjudicator was whether or not any of the grounds for reconsideration had been met in relation to alleged discrimination in the provision of services.
[20] We have considered all the applicant’s grounds. We conclude that the Reconsideration Decisions are reasonable. Those decisions show the Adjudicator’s analysis of the requests for reconsideration, the application of the Tribunal’s rules, and the justification for denying reconsideration.
[21] Moving to the issue of bias, there is no standard of review. The question is whether or not there is a reasonable apprehension of bias.
[22] The same Adjudicator decided the Reconsiderations Decisions and the underlying decisions. The applicant submits that the Adjudicator, once he had decided against the applicant on one matter, could not decide the later matters fairly. The applicant further submits that the same Adjudicator should not have decided a request for reconsideration arising from their own decision. In this case, the result of this position would be that thirty adjudicators would be needed to make all the decisions. Further, a reconsideration is not an appeal: there is no inherent conflict in the same Adjudicator hearing a reconsideration request from their own decision.
[23] Allegations of bias must be considered in their specific context and in view of the well-established presumption of impartiality. The applicant must show strong grounds to rebut that presumption. He has not done so. An adverse finding does not mean that a decision-maker is biased or cannot fairly conduct a reconsideration. Further, in this case there were many proceedings arising from essentially the same underlying events. Having the same adjudicator consider all the matters in this case may lead to efficiencies and other benefits and does not displace the presumption of impartiality.
[24] The record before us does not give rise to a reasonable apprehension of bias.
[25] This application is therefore dismissed. There shall be no order as to costs.
D.L. Corbett J.
Matheson J.
Shore J.
Date: May 30, 2024