Court File and Parties

Citation: Knight v. HRTO, 2020 ONSC 7990 Divisional Court File No.: 19/51 Date: 2020-12-31 Superior Court of Justice – Ontario Divisional Court

Re: Marianne Knight, Applicant And: Surrey Place Centre, Manulife Financial and the Human Rights Tribunal of Ontario, Respondents

Before: Penny J.

Heard: By video conference on December 15, 2020

Counsel: Marianne Knight on her own behalf Brian A. Blumenthal for the Human Rights Tribunal of Ontario Susan Munn for Surrey Place Centre Sophia Zaidi for Manulife Financial

Endorsement

[1] This is a motion by Marianne Knight, who is the applicant seeking judicial review in these proceedings. She was the applicant in proceedings before the Human Rights Tribunal of Ontario and is seeking to review decisions of the HRTO concerning her allegations against the respondent, Surrey Place Centre, for discrimination in employment based on disability. Following a multi-day hearing, in a lengthy decision Vice Chair Cook found that the respondent had failed to accommodate the applicant’s work-related stress disability and awarded damages of $15,000.

[2] This case has required a significant level of case management by Mr. Justice Corbett. Most recently, the applicant indicated that she was not satisfied that the record of proceedings prepared by the HRTO (about 1,500 pages) was complete or adequate. She has proposed supplementing that record with almost 5,000 pages of additional documentation contained in 86 bundles, organized more or less chronologically.

[3] In a lengthy case management endorsement of November 20, 2020, Corbett J. explained to Ms. Knight that there were only three bases on which she could persuade the court that materials not provided by the HRTO in its record of proceedings ought to be before the court on the application for judicial review. These three grounds are derived from well-established legal precedent known as the Keeprite principles, most recently confirmed by this Court in Canadian National Railway Company v. Teamsters Canada Rail Conference and Andrew Sims Q.C., 2019 ONSC 3644. The three factors are:

(a) the materials ought to have been included in the HRTO’s record of proceedings (i.e., that they are properly part of the record pursuant to s. 20 of the Statutory Powers Procedure Act);

(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. The usual examples of materials that may be admissible on this basis are:

(i) to set out general background that would assist the court;

(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; or

(iii) to show a complete lack of evidence to support a material finding of fact, and

(c) materials that are properly “fresh evidence” on the application.

[4] Corbett J. was unable, during a case management conference, to resolve the issue of the proper record and concluded that a motion was required. He held:

[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.

[5] At the heart of the applicant’s motion is s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, C.S. 22, as amended. Section 20 provides:

A tribunal shall compile a record of any proceeding in which a hearing has been held which shall include,

(a) any application, complaint, reference or other document, if any, by which the proceeding was commenced;

(b) the notice of any hearing;

(c) any interlocutory orders made by the tribunal;

(d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;

(e) the transcript, if any, of the oral evidence given at the hearing; and

(f) the decision of the tribunal and the reasons therefor, where reasons have been given.

[6] The applicant takes the position that the additional documents contained in the 86 bundles were all “evidence filed with the tribunal”. Thus, she relies upon the first ground of the Keeprite principles. The applicant does not rely on the second or third grounds under Keeprite.

[7] The applicant has misconstrued the meaning of the phrase “documentary evidence filed with the tribunal” used in s. 20(d) of the SPPA. During her oral submissions it became clear that, in the applicant’s view, anything that she sent to the registrar of the HTRO or to the Executive Chair of Social Justice Tribunals Ontario and the Executive Chair and Executive Lead of Tribunals Ontario fall within the term “documentary evidence filed with the tribunal”. This is an unreasonable and incorrect interpretation of s. 20(d).

[8] The key to a proper understanding of s. 20(d) is the word “evidence”. Sending documents to the registrar of the institution of the HRTO does not make those documents evidence in a hearing. Providing documents during the disclosure phase of the prehearing process does not make those documents evidence. Sending documents to the Executive Chair of Social Justice Tribunals Ontario and subsequently the Executive Chair and Executive Lead of Tribunals Ontario, in the context of complaints about the hearing vice chair, does not make those documents evidence in the hearing. Reference to a flash drive in the applicant’s “will say” statement submitted at the hearing does not make documents contained on the flash drive evidence.

[9] The applicant does not complain that these documents were tendered at her hearing and that the vice chair refused to admit them. Nor is there any evidence that specific reliance was placed on these documents at the hearing. Rather, the applicant’s claim is that, by virtue of having sent or provided these voluminous documents as described above, they became documentary evidence in her hearing.

[10] The applicant has filed no affidavit explaining the basis upon which these new documents were part of the record of proceedings before the vice chair. Thus, the applicant’s claims as to the provenance and relevance of the new documents are not supported by any evidence. Nor, in her submissions on the motion, has she attempted to show why these documents are relevant to her grounds of review. Her claims are further unsupported by any connection or reference tying these documents to the decisions of Vice Chair Cook which are under review.

[11] As Corbett J. pointed out in his case management endorsement, the applicant has already filed her factum on the merits of her application for judicial review. There is no reference to these documents in her factum. In effect, the applicant is concerned that something might come up in the respondent’s material that might make something in these documents relevant or necessary to her application. This is not a basis for filing new documents on judicial review.

[12] The applicant’s Notice of Application for Judicial Review also seeks permission of the Court to file a transcript of the audio recordings made at the hearing. It is the practice of the HRTO to permit a party to a hearing to make audio recordings to supplement her notes, but only for that limited purpose. The audio recording (and any transcripts, if they exist) have not been provided to the other parties or to the Tribunal. Again, the applicant has provided no evidentiary, or even principled, basis for the admission of these recordings or of any privately prepared transcript of them. As such, they are not properly part of the record of proceedings.

[13] I also observe that quite a few of the documents proposed to be introduced into the record by the applicant are guidelines and other statements of policy, procedure and the like taken from the HRTO website. Material such as this is not normally considered evidence. Parties typically may file and refer to such material, as they would to reported decisions of the court or other tribunals, in the course of submissions without the need to make such documents part of the evidentiary record of proceedings.

[14] For all these reasons, I find that the applicant has not satisfied her onus of showing that the new documents meet the Keeprite test for supplementing the record of proceedings on judicial review. The applicant’s motion is therefore dismissed.

[15] Neither the HRTO nor ManuLife Financial sought costs. While the respondent Surrey Place sought costs, its position was a wholesale adoption of the argument advanced by the HRTO. No order as to costs.

[16] As no new documents are being introduced into the record of proceedings, there is no reason the remaining pre-hearing steps cannot be completed in short order. If the parties are unable to agree on an expeditious timetable for the completion of these steps, they shall request a case management teleconference with Corbett J. at their earliest convenience.

Penny J.

Date: December 31, 2020