Court File and Parties

CITATION: Knight v. HRTO, 2020 ONSC 7134

COURT FILE NO.:

DATE: 2020-11-20

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Knight v. Human Rights Tribunal of Ontario

COUNSEL: Ms Knight, self-represented Applicant Brian Blumenthal, for the Ontario Human Rights Tribunal Susan Munn, for Manulife Zaida, for Surrey Place

BEFORE: D.L. Corbett J.

DATE: November 20, 2020

CASE MANAGEMENT ENDORSEMENT

[1] This endorsement reflects a case management conference held on November 16, 2020. At the end of the teleconference I advised the parties that the court’s directions would be set out in an email from Divisional Court staff, rather than a formal endorsement (as is now the usual Divisional Court practice for case management directions). However, in preparing the directions to be sent to the parties, I concluded that it was more appropriate that the directions be set out in this formal endorsement.

[2] As noted in this court’s endorsement reflecting a case management conference on June 22, 2020, “this case requires ongoing case management to ready the case for hearing” (2020 ONSC 3896, para. 2).

[3] At the first case conference on June 22, 2020, the court gave directions for adding necessary and proper parties as respondents to the application, for service of the amended application on those parties, and for a further case management conference once those steps had been completed.

[4] The second case management conference was held on August 17, 2020, with all proper parties participating in the call. At that conference a schedule was established for the case with a return date of January 13, 2021, and various deadlines for the parties to enable the application to proceed as scheduled.

[5] The first such deadline was for the HRTO to serve its record of proceedings – this was to be done by August 28, 2020. The HRTO met this deadline, but Ms Knight objected that HRTO had failed to include materials that ought to have been included in the record of proceedings.

[6] Rather than put the parties to the delay of another case management conference, this court issued a written direction by email from Divisional Court staff directing Ms Knight to file her responding materials, including her factum and any additional materials she says ought to be included in the record of proceedings.

[7] Ms Knight did as directed. Responding parties objected to the materials Ms Knight served, both as to their form and their content. In response the court directed that Ms Knight’s materials be uploaded to Caselines so that (a) the court would be able to review them; and (b) some of the objections raised by respondents as to the form in which the materials were provided might be overcome.

[8] Respondents took the position that they should not be required to serve their factums until the issue of the proper record before the court was settled. By direction from this court, conveyed to the parties by email from court staff, I suspended the schedule for delivery of materials and directed that a further case management conference be held. The directions from that further teleconference, held on November 16, 2020, are set out in this endorsement.

[9] During the course of this case management teleconference, I explored with the parties various options for proceeding that would not require a cumbersome motion to settle the record of proceedings. I am afraid that the result of this discussion was some understandable confusion. I summarize the discussion below, in brief, but note at the outset that these discussions are without prejudice to the parties’ positions on the issue of the proper contents of the record of proceedings before the court on the application, which will be adjudicated by a single motions judge of the Divisional Court (other than me) on December 15, 2020.

[10] The record of proceedings filed by the HRTO is some 1507 pages long, organized thematically (55 tabs, sorted under headings for each of two HRTO files entitled “Applications and Requests”, “Notices”, “Decisions and CADs”, and, for the first HRTO file, “Exhibits”).

[11] Ms Knight’s materials comprise 4,724 pages, uploaded in 86 documents, in chronological order. It appears that these materials contain some overlap with the record filed by the HRTO, and internal repetition of materials (for example, some documents were transmitted by Ms Knight to the HRTO more than once and are included multiple times to show multiple transmissions).

[12] When the court gave its prior written directions, it did not anticipate such an enormous discrepancy between Ms Knight’s view of what is the proper record for this application and the HRTO’s view. The court, in fulfilling its triage and case management functions, does not have the time to absorb such a volume of materials to dispose of these issues summarily.

[13] Some time was spent on the materiality of additional materials provided by Ms Knight. She has served her factum and advises that she does not refer in her factum to most of the additional materials. The factum itself has not yet been uploaded to Caselines, so the court has not had an opportunity to assess the nexus between the additional materials and the issues raised in Ms Knight’s factum. During discussion, Ms Knight correctly noted that she would not be permitted to add to the record after she receives factums from responding parties, and she is concerned that she may need the materials she has uploaded to reply to something raised in responding factums. This was another way of saying that she cannot be sure of the materiality of these materials until she has responding factums.

[14] An application for judicial review is a review of the decision(s) below and is founded on the record that was before the tribunal below. The contents of the record of proceedings below is prescribed by the Statutory Powers Procedures Act. Mr Blumenthal, for the HRTO, takes the position that the record provided by the HRTO complies with the SPPA, s.20, and therefore it is for Ms Knight to establish a basis on which to supplement that record for the purposes of the application for judicial review.

[15] Generally, there are three bases on which Ms Knight could persuade the court that materials not provided by the HRTO in its record of proceedings ought to before the court on the application for judicial review;

(a) The materials ought to have been included in the HRTO’s record of proceedings (ie that they are properly part of the record pursuant to the SPPA);

(b) Although the materials are not part of the record, they are properly added to the record because of one of the narrow exceptions to the principle that the record before the Divisional Court is the official record from the tribunal below.[^1] Some examples of materials that may be admissible on this basis are:

(i) To set out general background that would assist the courts.

(ii) To show procedural defects that are not apparent from the record or the reasons – for example, a reasonable apprehension of bias or a denial of procedural fairness.

(iii) To show a complete lack of evidence to support a material finding of fact.[^2]

(c) Materials that are proper “fresh evidence” on the application.

[16] On my cursory review of the 4,724 pages, it does not appear to me that the materials fit within the category of admissible “fresh evidence”: the test for “fresh evidence” is high and it appears that all of these materials were provided to the HRTO or are in respect to concerns raised by the applicant about fairness, due process, and allegations of bias, rather than the substance of the underlying disputes with Manulife and Surrey Place.

[17] I am in no position on this case management teleconference to assess whether any of the additional materials should have been included in the HRTO’s record of proceedings, or whether they are admissible within the principles described above.

[18] Further, there is no affidavit from Ms Knight attesting to her materials and explaining why they should be added to the HRTO record. It may be that such an affidavit may not be required for some of the materials – I am not in a position to judge that on the materials before me and within the time available to me on a case management conference. But, generally, Ms Knight should understand that the court may take judicial notice of the official record filed by the HRTO, but that she will have to prove – on the record – the genuineness of additional materials, and the basis on which those additional materials ought to be before the court on this application.

[19] The court does not want to create an unnecessary burden for Ms Knight. On the other hand, this court can only proceed on the basis of the record of proceedings below and additional materials that are properly before the court on the bases described above. Where a litigant seeks to augment the record by many thousands of pages, the court requires more than a bundle of contested documents in order to decide the issue.

[20] This issue shall be dealt with on motion to be brought by Ms Knight. The motion will be for an order that her additional documents be included as part of the record before the court in these proceedings. While I am not requiring that Ms Knight provide affidavit evidence in respect to each document, she should understand that it is her burden to establish the authenticity of these documents and a basis, as described above, to add the documents to the record.

[21] Ms Knight shall serve her motion materials by December 1, 2020. Responding parties shall deliver their responding materials by December 11, 2020. All materials (including costs materials) shall be uploaded to Caselines by December 11, 2020. The motion shall proceed before a single motions judge of the Divisional Court on December 15, 2020.

[22] I am concerned that, given the volume of materials involved and the nature of the issues, and the fact that Ms Knight is self-represented, the schedule for this motion and the time available for the motion to be argued, are onerous. That is not my intention: Ms Knight should have a reasonable opportunity to address these issues, and she is entitled to appropriate assistance from the court in understanding the issue and what she needs to do to address it. On the other hand, Ms Knight has made it clear that she wishes the underlying application to proceed to a hearing on the merits with all due dispatch. She finds the delay in getting a decision on the merits to be frustrating, and she finds that having these proceedings outstanding to be very stressful for her. Ms Knight’s deadline for serving her materials was a deadline she herself suggested. I have acceded to it, with concern about whether it is sufficient time for her to address these issues properly, but also with a view to respecting her suggestions for the schedule and her strongly stated desire to move forward promptly with the application on the merits. It will be in the discretion of the motion judge to adjust the schedule in any way that justice recommends, whether before the return of the motion on December 15th, or at the hearing of the motion itself.

[23] Ms Knight advises that she intends to serve a notice of constitutional question in this case. During the case management teleconference, she indicated that it had been her plan to serve this document thirty days before the hearing, as stipulated in the Rules of Civil Procedure.

[24] The Notice of Constitutional Question is for the benefit of the attorneys General, so that they may have notice and seek to participate in a proceeding if an enumerated type of constitutional question is raised. As I explained during the teleconference, the thirty-day notice requirement does not imply that an Attorney General who decides to participate in a case raising a constitutional question is only entitled to thirty days’ notice to prepare and file materials for the case. If an Attorney General does decide to participate, past experience indicates that it will take many weeks or months to obtain materials from the Attorney General, and that the hearing of the case will be delayed if the Attorney General has not received timely notice of the constitutional questions.

[25] In discussions on this issue it also emerged that there may be issues about whether the constitutional questions Ms Knight proposes to raise are arguable constitutional issues. For example, it seemed that Ms Knight understood that constitutional guarantees in the Charter apply to private actors such as the respondents Manulife and Surrey Place. It is trite law that this is not the case: the Charter applies to various public actors, such as governments. It also seems that Ms Knight may be arguing that a practice followed by the HRTO requiring confidentiality agreements from participants in certain situations, is itself contrary to the Charter. This may be arguable, and may be a constitutional question, but it does not appear that it is a question in respect of which notice must be given to the Attorneys General.

[26] The court is concerned that any notice of constitutional question be served in a timely way so as not to delay the hearing of Ms Knight’s application – a goal she herself holds firmly. At the same time, the court is concerned that any notice of constitutional question that is served at least raise an arguable constitutional question for which notice must be given to the Attorneys General. Ms Knight shall provide the court and the other parties with her draft notice of constitutional question by December 31, 2020, after which the court will give further directions in respect to it.

[27] The motions judge on December 15, 2020 is requested to either set further deadlines to ready this case for hearing or to refer the case back to another case management conference with me for that purpose.

[28] The schedule previously set by this court is suspended pending further directions from the court after completion of the steps described in this endorsement or in accordance with directions from the judge hearing the motion on December 15, 2020.

[29] This endorsement is effective from the time an unsigned copy is transmitted to the parties by email; a signed copy of the endorsement will be provided to the parties in due course.

D.L. Corbett J.

Date: November 20, 2020

[^1]: Generally, the evidence before the courts on judicial review is restricted to the record that was before the decision-maker, and new evidence should not be admissible beyond what was before the decision-maker (Association of Universities and Colleges of Canada v. The Canadian Copyright Licensing Agency, 2012 FCA 22, para. 19.

[^2]: Association of Universities and Colleges of Canada v. The Canadian Copyright Licensing Agency, 2012 FCA 22, para. 20.