CITATION: Konesavarathan v. Middlesex-London Health Unit, 2019 ONSC 3879

DIVISIONAL COURT FILE NO.: 464/17 DATE: 20190702

ONTARIO

SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Kiteley, Parayeski and Favreau JJ.

B E T W E E N :

KOVARTHANAN KONESAVARATHAN

Applicant

– and –

MIDDLESEX-LONDON HEALTH UNIT AND THE HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

Kovarthanan Konesavarathan

representing himself

Elisha Jamieson-Davies and

Edward O'Dwyer

for the Respondent Middlesex-London

Health Unit

James Schneider

for the Human Rights

Tribunal of Ontario

HEARD at Toronto: March 28, 2019

FAVREAU J.:

Overview

[1] The applicant, Kovarthanan Konesavarathan, seeks judicial review of three decisions of the Human Rights Tribunal of Ontario (the "HRTO" or the "Tribunal") that arise from his practicum with the Middlesex-London Health Unit (the "Health Unit") and his subsequent application for employment with the Health Unit. In the first decision dated January 20, 2016, the Tribunal dismissed the applicant's request to add the University of Western Ontario ("Western") as a party (the "Interim Decision"). In the second decision dated February 23, 2016, the Tribunal dismissed the applicant's request for a reconsideration of the Interim Decision (the "Reconsideration Decision"). In its final decision dated April 25, 2017, the Tribunal dismissed the applicant's complaint, finding that the Health Unit's conduct was not discriminatory or retaliatory (the "Final Decision").

[2] The applicant challenges the HRTO's decisions on numerous grounds, including arguments that the Vice-Chair who presided over the matter was biased, that the applicant was not afforded procedural fairness, that the Tribunal misapplied the tests for discrimination and retaliation, and that the decision breached his Charter rights.

[3] For the reasons that follow, the application for judicial review is dismissed.

Background

[4] The applicant was born in Sri Lanka, and is a foreign trained medical doctor.

[5] At the relevant time, the applicant was enrolled as a student in the Masters of Public Health program at Western.

The applicant's practicum with the Health Unit

[6] During his enrolment in the Master’s program at Western, the applicant participated in a practicum with the Health Unit. The practicum was to be for approximately 10 weeks, from May 12, 2014 to July 18, 2014.

[7] As part of his practicum, the applicant was to work on three "deliverables" consisting of an online education tool for teachers about anaphylaxis, a case study and a teaching note. These deliverables were to be completed by August 15, 2014, and were to be graded on a pass/fail basis. Completion of a practicum was one of the requirements for the Master’s program.

[8] The practicum with the Health Unit was atypically short, but the applicant claims that he accepted the placement because his supervisor at the Health Unit told him that she would find him other learning opportunities during the course of the practicum.

[9] On June 20, 2014, mid-way through the practicum, the applicant underwent dental surgery that led to complications. The applicant received a medical note indicating that he should take a minimum of 10 days rest from work. The applicant advised his supervisor at the Health Unit about this, and requested a two week extension to his practicum.

[10] The Health Unit supervisor consulted the applicant's faculty advisor at Western about the request to extend the practicum. The faculty advisor indicated that a two week extension would be acceptable, but that it would also be acceptable if the applicant's placement finished on the originally scheduled date even if the applicant was absent for two weeks for medical reasons.

[11] The Health Unit supervisor then advised the applicant that his practicum would end on the originally scheduled date, but that he would not be adversely affected and that he could complete his deliverables within the original time frame.

[12] On June 27, 2014, the applicant wrote to the supervisor at the Health Unit, requesting that he be permitted to return to work a week early because he was recovering faster than anticipated. The supervisor denied the request on the basis that the Health Unit had not planned any work for him until July 4th, and that he had not provided an updated medical note stating that he was now fit to return to work.

[13] While the applicant was away from his practicum, he attempted to register to attend a strategic planning meeting at the Health Unit. He received a response from a manager at the Health Unit advising him that the meeting was only open to staff members. This led to a chain of communications, including a request by the applicant that he be provided with a "better reason" for why he was not being allowed to attend the meeting. Ultimately, the applicant's advisor at Western was notified about these communications, at which point a representative from the university told the applicant to focus on his deliverables and provided him with some advice on "workplace etiquette".

[14] The applicant claims that, upon his return to the Health Unit, he faced reprisals, harassment and bullying behaviour from co-workers at the Health Unit and advisors at Western. In particular, he claims that he was encouraged to focus his attention on his deliverables, despite his stated desire to obtain practical experience which was especially important given that he was not born or trained in Canada. The applicant also claims that he made a further request to extend his practicum, which was denied and which made it more challenging for him to complete his deliverables on time.

Application for employment at the Health Unit

[15] Six months following the completion of his practicum, the applicant applied for a job posted by the Health Unit for a Program Manager, Child & Youth Health Team. The Health Unit was looking for a candidate with experience managing youth focused teams in school communities.

[16] The applicant was one of 76 people who applied for the position. While the applicant was initially screened in as one of the top 17 candidates, he was not amongst the 6 candidates who were selected for an interview.

[17] The criteria used by the Health Unit to select the candidates who were granted an interview were a Master’s degree in Public Health or a related field, management experience, public health experience, school community health experience and experience working with adolescents and youth. In applying the criteria to the applicant, the Health Unit was satisfied that he had a Master’s degree, but found that he did not have sustained management experience, he had little public health experience other than his student practicum, most of his experience was clinical, he had very limited experience with the education system and he had limited experience with youth.

The complaint to the HRTO

[18] On April 13, 2015, the applicant commenced an application to the Human Rights Tribunal against the Health Unit, making allegations arising from his practicum and his job application.

[19] With respect to the practicum, as described in the Final Decision, the applicant alleged that:

a. The respondent failed to accommodate him on the basis of disability, race, colour, place of origin, ethnic origin or sex by refusing to extend his practicum by two weeks;

b. The respondent failed to accommodate him by failing to allow him to return to his practicum early after his dental surgery;

c. The respondent reprised against him when he asked for these accommodations;

d. The respondent harassed him, by restricting the remainder of his practicum time to finishing his case study and not giving him other learning opportunities; giving him allegedly bullying feedback on his work, which allegedly included imposing additional burdens on him; communicating with the university about him for, in their view, sending unprofessional e-mails; making racial assumptions that the applicant was disobedient; and reacting disproportionately to the applicant's actions because of his race, colour, place of origin or ethnic origin.

[20] With respect to the applicant's job application to the Health Unit, he alleged that:

a. The respondent reprised against him by not interviewing him for a job it advertised; and

b. The respondent discriminated against him on the basis of disability, sex, race, ethnic origin, place of origin and colour by not interviewing him for the job it advertised.

The HRTO's decisions

[21] After he commenced his application to the HRTO, the applicant sought to add Western as a respondent. Western and the Health Unit objected to this request, and the HRTO addressed the request in its Interim Decision dated January 20, 2016. The Tribunal found that the request was untimely and that, adding Western as a party, would broaden the scope of the application. The HRTO also found that there were no allegations made that could support a finding against Western because the Health Unit made the decision not to extend the applicant's practicum and because many of the allegations in the complaint focused on the Health Unit's failure to give the applicant a job interview.

[22] The applicant sought reconsideration of the Interim Decision on the basis that the Tribunal paid insufficient attention to his supplementary written submissions because he is a self-represented litigant and on the basis that the Interim Decision conflicted with established case law and Tribunal procedure. The HRTO denied the request in its Reconsideration Decision dated February 23, 2016, finding that there was no merit to the grounds advanced for reconsideration.

[23] The hearing on the merits of the complaint lasted 9 days, and included evidence from a number of witnesses, including the applicant. The applicant represented himself throughout the hearing and the Health Unit was represented by counsel.

[24] The Tribunal dismissed the application in its Final Decision dated April 25, 2017.

[25] On the issue of the refusal to extend the applicant's practicum or permit the applicant to return to work early, the Tribunal found that there was no standard length for a practicum, and that the shortening of the applicant's practicum from 10 to 8 weeks may have constituted differential treatment, but the applicant had failed to prove on a balance of probabilities that this had given rise to any adverse impact. His claims of reprisal, harassment and a poisoned work environment were also found to be without merit.

[26] On the issue of whether the Health Unit's decision not to interview him was discriminatory, the Tribunal found that the applicant provided no evidence to support his assertion that he was not interviewed for reasons connected to discrimination or reprisal. The Vice-Chair accepted the Health Unit's evidence that the applicant was not sufficiently qualified, and found that the advertisement and hiring process were not discriminatory. The Vice-Chair again found that the applicant had not provided any evidence to substantiate the claim of reprisal.

Statutory scheme

[27] The applicant's complaints of discrimination against the Health Unit were founded on section 5(1) of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"), which provides as follows:

5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

[28] The applicant's complaints of reprisal were based on section 8 of the Code:

8 Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

Issues raised by the applicant

[29] In his factum and during his argument in Court, the applicant raised a number of issues, which I summarize as follows:

a. The HRTO's Final decision is discriminatory and contrary to section 15(1) of the Canadian Charter of Rights and Freedoms;

b. The Tribunal erred in its Interim Decision and Reconsideration decisions;

c. The Tribunal's Final Decision is unreasonable for a number of reasons, including claims that the Tribunal failed to apply the policies of the Human Rights Commission and that the Tribunal improperly focused on the intention of the Health Unit rather than the impact the Health Unit's conduct had on him;

d. The process followed by the Tribunal was procedurally unfair because it did not account for the fact that the applicant is self-represented; and

e. The Tribunal's Vice-Chair was biased.

Preliminary issue with respect to the affidavit filed by the applicant

[30] In support of this application, the applicant filed his affidavit sworn March 9, 2018. The affidavit includes a description of the proceedings before the HRTO and commentary on how the applicant perceives he was treated by the Tribunal. He also included a number of documents that are described as "exhibits", but that are unsworn and are not attached to the affidavit.

[31] The Health Unit and the HRTO objected to the affidavit on the basis that affidavit evidence is only admissible on an application for judicial review in exceptional circumstances. In the event the Court admitted the applicant's affidavit, the Health Unit filed an affidavit sworn by the lawyer who conducted the hearing before the HRTO, in which she responds to some of the applicant's statements about how the hearing was conducted.

[32] At the beginning of the hearing, the Court advised the applicant that the panel would not have regard to his affidavit, except potentially to address issues of procedural fairness. In addition, the Court advised the applicant that the Court might consider the affidavit of the Health Unit's lawyer for the same limited purpose.

[33] The basis on which the Court made this determination is already familiar to the applicant because similar issues arose in two other applications for judicial review he previously brought, including in Konesavarathan v. City of Guelph, 2018 ONSC 2146 (Div. Ct.), at para. 42, wherein this Court set out the principles that apply to the admissibility of affidavit evidence on an application for judicial review:

In applications for judicial review of the decision of a tribunal, the tribunal is required to prepare a "record of proceedings" pursuant to s. 20 of the Statutory Powers Procedure Act and s. 10 of the Judicial Review Procedures Act. The HRTO did file a record of proceedings. This court is required to rely on the record as it was before the HRTO. Affidavit evidence is only admissible in judicial review proceedings when necessary to show that a statutory ground of review is applicable or in the exceptional and rare circumstance where there is a complete absence of evidence on an essential point amounting to a jurisdictional error or to show a breach of natural justice that cannot be proved by mere reference to the record.

Preliminary issue with respect to Notice of Constitutional Question

[34] In support of his application for judicial review, the applicant filed a Notice of Constitutional Question, in which he claims that the manner in which the Tribunal conducted the hearing and applied the Code violates his rights under section 15(1) of the Charter. He alleges that the Vice-Chair relied on racial myths and stereotypes and that this is indicative of systemic racism at the Tribunal. The applicant seeks a number of declarations in relation to the Tribunal's Final Decision and he seeks Charter damages.

[35] The HRTO objected to the applicant's attempt to raise Charter issues because the issues were not raised at the hearing before the Tribunal and because the Supreme Court determined in Ernst v. Alberta Energy Regulator, 2017 SCC 1, at paras. 24-31, that Charter damages are not available against a judicial or quasi-judicial body.

[36] At the beginning of the hearing, the Court advised the applicant that the panel would not consider the issues raised in the Notice of Constitutional Question because they were not raised before the Tribunal.

[37] Indeed, it is well established that the Court will not consider a new issue not raised before the tribunal below, except in exceptional circumstances. This principle was applied in Singh v. Ontario (Workplace Safety and Insurance Appeals Tribunal), [2008] O.J. No. 292 (Div. Ct.), at paras. 37-40, which is a case in which an applicant raised Charter issues for the first time before the Divisional Court:

37 The applicant had served a Notice of Constitutional Question in which he asserted that the Tribunal had ignored the policies of the Board, that those policies constitute "law" under the Canadian constitution and under the Charter and that by so doing, Mr. Singh had been deprived of constitutional standards and his right to the equal operation of those polices without discrimination. Therefore, the Tribunal violated s. 15 of the Charter, the right to equality.

38 In order to pursue such a claim, Mr. Singh would have to have established an evidentiary record showing that the Tribunal decisions imposed differential treatment between Mr. Singh and other workers; that the alleged differential treatment was based on one or more enumerated or analogous grounds; and that the law in question has a discriminatory purpose or effect. Since this issue was not advanced at the Tribunal, there is no evidentiary record to sustain the claim.

39 The Charter violation was asserted for the first time in this judicial review. As the Court of Appeal has held:

In the normal course, appeals are not the proper forum in which to raise brand new issues which significantly expand or alter the landscape of the litigation. On occasion, such issues can be raised on appeal where the party seeking to raise the new issue demonstrates that the interests of justice require an exception to the normal and accepted course of litigation.

40 That principle applies equally to applications for judicial review. No explanation was provided as to why it was not raised at the Tribunal. The applicant has not satisfied the onus of demonstrating that the interests of justice require this Court to entertain the submission on a judicial review application. We agree with the respondent that the discrimination claim must therefore be dismissed.

[38] As in Singh, in this case, we do not see how the interests of justice favour considering the constitutional issues raised by the applicant.

[39] In any event, as held by the Supreme Court of Canada in Ernst, at para. 30, Charter damages are not available against a quasi-judicial body, in part, because judicial review is an adequate alternative remedy.

Standard of review

[40] Section 45.8 of the Code provides that decisions of the Tribunal are final and not subject to appeal.

[41] Section 43(8) of the Code, provides that "[f]ailure on the part of the Tribunal to comply with the practices and procedures required by the rules or the exercise of a discretion under the rules by the Tribunal in a particular manner is not a ground for setting aside a decision of the Tribunal on an application for judicial review or any other form of relief, unless the failure or the exercise of a discretion caused a substantial wrong which affected the final disposition of the matter".

[42] The parties agree that the standard of review applicable to the substance of the HRTO's decisions is reasonableness. Indeed, in Shaw v. Phipps, 2012 ONCA 155, at para. 10, the Court of Appeal for Ontario held that the reasonableness standard applies to the HRTO's interpretation and application of human rights law. The Court further held that, in applying the reasonableness standard"[d]eference is maintained unless the decision is not rationally supported. The ultimate question is whether the result falls within the Dunsmuir 'range of possible, acceptable outcomes which are defensible in respect of the facts and the law'".

[43] With respect to allegations of bias and breach of procedural fairness, no standard of review applies. Rather, the Court is to determine whether the requisite procedural fairness and impartiality were afforded to the applicant: Konesavarathan v. Guelph Mercury, 2018 ONSC 2405 (Div. Ct.), at para. 35.

Analysis

Whether the Tribunal erred in the Interim Decision and Reconsideration Decision

[44] The applicant argues that the Interim Decision and Reconsideration Decision were wrongly decided because he sought to add Western within the applicable time limits and because Western was involved in the alleged discrimination given that it advised the Health Unit that it did not have to extend the applicant's practicum.

[45] In making these arguments the applicant is essentially attacking the Tribunal’s ability to control its own process, and specifically its determination that it was not necessary to add Western as a party to the proceeding. As mentioned above, section 43(8) of the Code provides that, when dealing with procedural or discretionary issues, this Court can only intervene if there has been a “substantial wrong which affected the final disposition of the matter”.

[46] In its Interim Decision, the Tribunal found that Western was not a necessary party in part because Western’s role was limited to advising the Health Unit that it could choose to extend or not extend the applicant’s practicum, but that it was ultimately the Health Unit that made the decision not to extend his practicum. In its Final Decision, the HRTO found that the applicant did not establish that the Health Unit's decision not to extend his practicum had an adverse impact on him. Accordingly, given my conclusion below that the Final Decision was reasonable, including the Tribunal’s finding that there was no adverse impact on the applicant, adding Western as a party would have had no impact on the final outcome of the decision. Whether Western was involved or not, the decision to not extend the practicum was not discriminatory. Therefore, there has been no “substantial wrong” that affected the final disposition of the complaint. This ground of review is therefore dismissed.

Whether the Final Decision was reasonable

[47] In his factum and during oral argument, the applicant raised a number of arguments in support of his position that the Final Decision was not reasonable. His arguments can be distilled into the following three issues:

a. The HRTO improperly focused on the Health Unit’s intentions rather than the impact of its actions when it decided not to extend the practicum;

b. The HRTO improperly focused on whether the applicant met the Health Unit’s job requirements rather than assessing whether the requirements had a discriminatory effect on him; and

c. The HRTO failed to have regard to the Human Rights Commission’s policies.

[48] In my view, none of these arguments supports a finding that the decision was unreasonable.

[49] First, the applicant argues that the HRTO improperly focused on the Health Unit's intentions rather than on the impact of the Health Unit's decision not to extend his practicum. He argues that this is contrary to the law and to the Commission’s policies which the Tribunal is required to apply in accordance with section 45.5 of the Code.

[50] However, a review of the Final Decision makes it clear that, when the Tribunal considered the allegations of discrimination, it focused on the impact of the Health Unit's decision on the applicant, finding that the applicant did not provide any evidence that he suffered a disadvantage as a result of the shortened practicum:

[58] The applicant testified he was disadvantaged for two reasons. One was he did not get an additional two weeks of Canadian experience. The second was his assertion that he required the additional two weeks to get his deliverables finished.

[59] While the applicant testified he required Canadian experience because he was foreign-trained, he provided no evidence that the fact that his practicum was 8 weeks long rather than 10 weeks long had any adverse impact on him. While the evidence was uncontroverted that the applicant wanted experience in the communicable diseases area, this was never part of the learning contract.

[60] The applicant gave conflicting testimony about whether or not he needed the extra two weeks to finish his deliverables. Despite this, however, the applicant did not establish any adverse impact on him because he completed his practicum successfully and graduated.

[51] In the next section of the Final Decision, the Tribunal did have regard to the Health Unit's intentions, but this is in the context of the issue of reprisal. For example, in that section, the Tribunal addressed the applicant's arguments that the Health Unit's employees saw his actions and reactions as disrespectful because of his race, colour, place of origin or ethnic origin, finding that:

[72] … I find that the e-mails and the testimony demonstrated that the actions the respondent's employees took resulted from the fact that the applicant could not accept that he was not permitted to attend a meeting for staff only and as a result sent e-mails in which he questioned the respondent's values and threatened to report this to the [Health Unit], which he wrote may hurt its reputation. There was no evidence that the respondent's employees' actions and reactions were a result of what he called his request for accommodation, or were because of the applicant's race, colour, place or origin or ethnic origin.

[52] The three part test for determining whether there has been reprisal under section 8 of the Code developed by the Tribunal includes a requirement that an applicant demonstrate that the respondent intended to retaliate: Noble v. York University, 2010 HRTO 878, at para. 33; and Okouneva v. Ontario (Human Rights Tribunal), 2018 ONSC 374 (Div. Ct.), at para. 49. While the applicant purports to take issue with this requirement, I see no reason to question this aspect of the test. It makes sense that assessing a claim of retaliation necessarily includes consideration of the respondent's intentions.

[53] The second argument advanced by the applicant is that, in considering his claim that the Health Unit discriminated against him by not offering him a job interview, the Tribunal improperly focused on whether he met the criteria for the position rather than on whether the criteria themselves had the effect of discriminating against him. However, this contention is not supported by the Tribunal's decision. The Tribunal conducted a careful review of the applicant's arguments, and considered whether they were supported by the evidence, and ultimately found that there was no evidence of discrimination in the Health Unit's decision not to offer him a job interview. As part of its reasoning, the Tribunal agreed with the applicant that the Health Unit could not rely on "inflated job requirements as a means of excluding someone whose training or education took place outside Canada". However, the Tribunal went on to find that the Health Unit did not in fact inflate the job requirements, finding for example that there was no requirement that candidates have Ontario experience. In addition, the Tribunal went through many of the job requirements, accepted the Health Unit's evidence as to why they constituted legitimate requirements and then considered whether the applicant met the requirement. It was as part of this exercise that the Tribunal assessed the nature of the applicant's experience. For example, the Tribunal considered and rejected the applicant's argument that the Health Unit undervalued his management skills:

[146] I accept Ms. Beswick's evidence that another key missing element on the applicant's c.v. was sustained management experience. The applicant's C.V. lists a series of short term jobs beginning in 2005. From 2005 to 2012, the applicant lists 11 jobs, none of which lasted for more than 11 months, and most of which lasted for six months or less. I accept Ms. Geswick's evidence that because of this the applicant was not in any job long enough to establish relationships or gain experience in management activities such as personnel reviews and budgets.

[147] I also accept Ms. Beswick's testimony, as evidenced by the applicant's c.v., that the only job in which he listed himself as a manager was a six month job as Health Manager, and his c.v. otherwise did not evidence much management experience. While the applicant testified he had additional management experience from working with NGO's, not only would these skills not necessarily have been apparent to the respondent from his cover letter or c.v., but these two jobs were of even shorter duration. One was a job with an NGO in January 2005 and another was a job assisting NGO's from January to June, 2007. As a result, I accept this was not a case of the respondent undervaluing the applicant's management experiences because of his race, ethnic origin, place of origin or colour.

[54] The third argument made by the applicant is that the Tribunal failed to apply the Commission's policies, as it was required to do pursuant to section 45.5(2) of the Code, which provides that "the Tribunal shall consider a policy approved by the Commission under section 30 in a proceeding under this Part if a party to the proceeding or an intervenor requests that it do so". However, the Tribunal did consider the applicant's reliance on the policies, finding, quite rightly, in my view, that the applicant could not rely on the policies as evidence of discrimination:

[141] Much of what the applicant included in his closing submissions and his evidence was a recitation of Human Rights Commission's policy, and did not necessarily spring from his experience with the respondent. As a result, for some of the applicant's assertions there simply was no evidence.

[55] In any event, as pointed out in the Health Unit's factum, while the Tribunal did not make explicit reference to the Commission's policies in its decision, it did rely on applicable principles in the policies throughout the Final Decision. For example, as mentioned above, the Tribunal accepted that employers cannot rely on inflated job requirements and employers cannot devalue a potential employee's qualifications because of the person's place of origin.

[56] Ultimately, I see no merit to the applicant’s arguments that the Final Decision was unreasonable. Throughout its decision, the Tribunal noted that the applicant made many inferences and assumptions that the Health Unit discriminated against him on the basis of race, colour, place of origin or ethnic origin, but that his evidence did not support these inferences and assumptions. The Tribunal concluded that the applicant had failed to discharge his onus to prove discrimination and retaliation by the Health Unit on a balance of probabilities. In reaching this conclusion, the Tribunal conducted a careful review of the evidence, the parties' arguments and the applicable legal principles. In my view, the Final Decision is justified, transparent and intelligible, and falls within a range of reasonable outcomes having regard to the evidence and the law.

Whether there was a breach of procedural fairness

[57] The applicant makes a general claim that the Tribunal did not permit him to advance all of the arguments and evidence he wished to pursue. In addition, he claims that, as a self-represented litigant, he should have been afforded more lenience in the application of the rules.

[58] I do not accept that these issues raised by the applicant establish that there was a breach of procedural fairness.

[59] At the beginning of the Final Decision, the Vice-Chair went through a number of procedural fairness issues raised by the applicant at the hearing. In that context, the Vice-Chair explains that the applicant persistently raised a number of irrelevant issues, and that he had to be reminded “repeatedly” of the issues before the Tribunal. She also rejected the applicant’s argument that he was disadvantaged because he was self-represented, stating that she had “permitted the applicant great latitude in his questioning” and that the “Tribunal is well-used to self-represented applicants and takes steps to ensure they are not at a disadvantage at a hearing”. In addition, she found that there was “utterly” no merit to the applicant’s contention that the Health Unit’s counsel acted unprofessionally and took advantage of him.

[60] The applicant raised all of the issues again on the application for judicial review, including the allegation that the Health Unit’s counsel acted improperly. I do not see any merit to these complaints. Notably, the applicant does not point to any specific issues or evidence that he was not permitted to lead that would have affected the outcome of the hearing, and there is nothing in the record that would support such a finding.

Whether there is a reasonable apprehension of bias

[61] The applicant argues that the Vice-Chair was biased in this case because she ignored some of his arguments, prejudged his case, applied racial myths and stereotypes, and demonstrated a discriminatory attitude toward him.

[62] In Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, at pp. 394-95, the Supreme Court of Canada held that, in determining whether there was a reasonable apprehension of bias, the issue is whether a reasonable person viewing the matter realistically and practically would find that it was more likely than not that the adjudicator could not decide the matter fairly.

[63] There is a strong presumption of judicial or quasi-judicial impartiality. In order to overcome the presumption, the applicant must establish the presence of "serious grounds". The inquiry as to whether a reasonable apprehension of bias has been established is fact specific, and dependent on the whole context of the proceeding: Wewaykum Indian Band v. Canada, 2002 SCC 79, at paras. 59, 76 and 77.

[64] The applicant's allegations of bias in this case are entirely speculative and not supported by any evidence.

[65] This is the fourth time that the applicant has made allegations of bias against HRTO decision makers. In each of the three previous cases, the claims of bias were dismissed: Konesavarathan v. City of Guelph, at paras. 60 and 63; Konesavarathan v. Guelph Mercury, at paras. 62-67; and Konesavarathan v. Her Majesty the Queen (Ontario), 2018 ONSC 3593 (Div. Ct.), at paras. 19-21.

[66] In this case, I again see no merit to the allegation of apprehension of bias.

Costs

[67] The Health Unit seeks costs in the amount of $6,000, which is far less than the costs it incurred in responding to this application. The HRTO does not seek costs. The applicant argues that the amount sought by the Health Unit is unreasonable, given that he is self-represented and attempting to raise important issues on behalf of disadvantaged people.

[68] This was a full day hearing. The Health Unit was required to respond to the many issues raised by the applicant’s materials, including allegations of bias against the Tribunal raised for the fourth time by the applicant before this Court, the improperly filed affidavit and the Notice of Constitutional Question. Under the circumstances, it is reasonable that the applicant should contribute, albeit modestly, to the Health Unit’s costs and I find that the $6,000 requested is a reasonable amount.

Order to go

[69] The application for judicial review is dismissed.

[70] The applicant shall pay costs of $6,000 to the Middlesex-London Health Unit within 90 days from the day this judgment is released.

___________________________ FAVREAU J.

I agree KITELEY J.

I agree PARAYESKI J.

RELEASED: July 02, 2019

CITATION: Konesavarathan v. Middlesex-London Health Unit, 2019 ONSC 3879

DIVISIONAL COURT FILE NO.: 464/17 DATE: 20190702

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N :

KOVARTHANAN KONESAVARATHAN

Applicant

– and –

MIDDLESEX-LONDON HEALTH UNIT AND THE HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

REASONS FOR JUDGMENT

FAVREAU J.

RELEASED: July 02, 2019