CITATION: Aggarwal v. Sheridan College, 2021 ONSC 1399

DIVISIONAL COURT FILE NO.: 478/20

DATE: 20210308

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Penny and Kristjanson JJ.

BETWEEN:

DR. BHARAT AGGARWAL

Applicant

– and –

SHERIDAN COLLEGE and HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

Bharat Aggarwal on his own behalf

Daniel Michaluk and Mannu Chowdhury for Sheridan College

Brian A. Blumenthal and Katia Snukal for the Human Rights Tribunal of Ontario

HEARD at Toronto (by videoconference): January 6, 2021

BY THE COURT:

Overview

[1] This is an application for judicial review of three decisions of the Human Rights Tribunal of Ontario. The principal focus of the application is on two decisions of Adjudicator Connell. In the first decision of March 3, 2020, the Adjudicator dismissed the Applicant’s application to the HRTO under s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, on the basis that another proceeding, in this case a six-day arbitration of a grievance brought on the Applicant’s behalf by his Union, the Ontario Public Service Employees Union, Local 244, had appropriately dealt with the substance of the complaint: Aggarwal v. Sheridan College of Technology and Advanced Learning, 2020 HRTO 199.

[2] In essence, the Applicant takes the position that this decision was unreasonable because the Union, without his consent, expressly declined to advance his allegation of Code violations in the arbitration hearing but limited the grievance to alleged violations of express provisions of the collective agreement.

[3] The second decision under review was a reconsideration of the first. The reconsideration was heard by Adjudicator Connell; she upheld her prior decision and rejected the Applicant’s arguments for reversing or setting her earlier decision aside: Aggarwal v. Sheridan College of Technology and Advanced Learning, 2020 HRTO 610.

[4] The Applicant also alleges that, in both decisions, Adjudicator Connell showed a reasonable apprehension of bias and that he was denied procedural fairness.

[5] Although these grounds were not raised before the HRTO, the Applicant also alleges in this application that the HRTO infringed his rights under ss. 7, 11(d) and 15 of the Canadian Charter of Rights and Freedoms.

[6] Finally, the Applicant also seeks judicial review of a third decision, issued earlier by Adjudicator Bouchard on June 6, 2019. In that decision, the Adjudicator dealt with various preliminary motions and, among other things, granted the College’s request to dismiss the application against several named personal respondents who occupied various academic positions in the employ of the College.

[7] The issues to be decided on this application are:

(1) the standard of review;

(2) whether the decisions of Adjudicators Bouchard and Connell were unreasonable;

(3) whether Adjudicator Connell denied the applicant procedural fairness;

(4) whether Adjudicator Connell exhibited a reasonable apprehension of bias: and

(5) whether this court should exercise its discretion to consider Charter arguments not raised before the HRTO.

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

Background

[9] The Applicant was hired by the College in 2012 and became a full time professor at the College’s School of Business in 2013. Associate Dean Giberson hired and was the supervisor for the Applicant. At the time he was hired, the Applicant was enrolled in a Doctorate of Business Administration (“DBA”) program. This was a relevant consideration in the Applicant’s hiring because the College was about to start offering Bachelor programs and a DBA was an asset for anyone teaching in those programs.

[10] In 2015-2016, the Applicant filed a number of grievances alleging that he had been harassed and mistreated contrary to the collective agreement between the College and his Union.

[11] On October 1, 2015, the Applicant filed his first grievance, alleging a violation of Article 4.02 under the agreement (which requires the College to ensure that employees are free from harassment or bullying). Among other things, the Applicant asserted that he did not wish to work under Mr. Giberson because he “does not want my success and he only causes difficulties for me”.

[12] On April 15, 2016, the Applicant filed his second grievance, alleging a violation of Article 3 (which prohibits intimidation, discrimination or interference for union activity or filing a grievance or workload complaint) and Article 4 (which prohibits harassment and bullying). The relief sought included tuition reimbursement, assignment to a new associate dean and compensation.

[13] On June 8, 2016, the Applicant filed his third grievance, essentially making the same allegations and seeking the same relief as he did in his second grievance.

[14] On July 12, 2016, the Applicant filed his fourth grievance, alleging a violation of Articles 2, 4, and 15 (the vacation provision). In addition to seeking assignment to a new associate dean, the Applicant sought an order that the College cease bullying, harassment, and intimidation, as well as an order for rehabilitation of the Applicant’s reputation.

[15] These grievances were based on a long list of interactions, ultimately stretching from April 2013 until August 2016.

[16] The Applicant also commenced an application to the Human Rights Tribunal of Ontario, alleging Code violations arising out of these same interactions as well. By order of May 16, 2017, the HRTO deferred the Applicant’s human rights application pending the outcome of the grievance procedure, on the basis that there was “substantial overlap between the facts and issues covered by the [Human Rights Code] application and those referred to in the grievances.”

[17] It is common ground that the grievances included complaints of discrimination under the Human Rights Code. It is also common ground that, without the Applicant’s consent, but after significant disclosure, the Union decided not to pursue the Code-based grievances in favour of the collective agreement-based grievances.

[18] The arbitration hearing of the Applicant’s four grievances was held over six days commencing on February 7, 2017 and concluding on October 11, 2017. Counsel for the Union represented the Applicant during the proceeding.

[19] In a decision released on March 12, 2018 the Arbitrator dismissed the four grievances, rejecting all the allegations of bullying, harassing and discriminatory conduct cited by the Applicant. In doing so, the Arbitrator’s reasons included the following key findings:

(1) the Arbitrator dismissed the Applicant’s allegation that he was harassed by Mr. Giberson, noting, “a common theme ... is that the [Applicant] considers himself to be harassed when he is not supported in his positions or suggestions in the workplace.” Incidents cited by the Applicant as evidence of “harassment” were situations in which Mr. Giberson did not agree with a proposed action or approach taken by the Applicant. The Arbitrator found that most of these incidents were instances in which Mr. Giberson expressed legitimate disagreement with the Applicant (by allowing two student appeals) or reasonable criticism of the Applicant (by telling him he should be less combative and more cooperative). The Arbitrator noted that it was within Mr. Giberson’s management right to express such disagreement and criticism.

(2) the Arbitrator dismissed the Applicant’s allegation that the College failed to accommodate his personal situation and family needs. In particular, the Applicant alleged that he was not permitted to take a leave from his DBA program, in contrast to a similar dispensation afforded other members of the faculty. The Arbitrator found that Mr. Giberson “went out of his way to support the [Applicant] and to accommodate his [personal situation and family needs]” by offering him a reduced teaching load, assigning him to a single campus, and writing a very supportive letter to assist the Applicant in his application for tuition reimbursement. The Arbitrator found that while Mr. Giberson did not always agree with the Applicant and did “encourage” him to continue in the DBA program, he never required the Applicant to remain in the DBA program and acted within his rights as the Applicant’s supervisor.

(3) finally, the Arbitrator determined that the evidence failed to establish that Mr. Giberson made two derogatory comments alleged by the Applicant (“this could be your last rodeo, cowboy” and “get it through your thick skull”).

[20] On May 20, 2018, the Applicant sought to reactivate his application to the HRTO, which was done on June 6, 2019.

[21] In the HRTO application, the Applicant alleged discrimination by the College on the basis of disability, creed, family status, and marital status. As in his grievances, there were two essential heads of allegation: (i) the College’s approach to accommodating the Applicant’s request regarding the DBA program and (ii) generalized alleged incidents of discrimination and harassment resulting from the bullying, harassing and discriminating conduct of Mr. Giberson. These allegations were based on the same factual foundation as the allegations giving rise to the arbitration.

[22] On the issue of the DBA program, the Applicant alleged that the College failed to provide him with a work environment “free from discrimination and harassment” when it denied his accommodation requests and subjected him to a “hostile environment”. The Applicant asserted that he was “denied” accommodation in respect of a leave from his DBA program and was threatened with the loss of his job if he took such a leave.

[23] Regarding the alleged incidents of discrimination, the Applicant claimed that he was denied the opportunity to teach courses that he had led and that he was treated “differentially” from his white colleagues and subjected to a “hostile environment.” He also alleged “abusive” behaviour by Mr. Giberson, including derogatory names and humiliating remarks.

[24] The HRTO dismissed the application under s. 45.1 of the Code in a decision of March 3, 2020. Section 45.1 provides that the Tribunal may dismiss an application, in whole or in part, if it is of the opinion that another proceeding has appropriately dealt with the substance of the application.

[25] The purpose of s. 45.1 is to promote principles of finality, the avoidance of multiplicity of proceedings, and protection of the integrity of the administration of justice. This has been established in well settled jurisprudence at the highest level: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 51 and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19.

[26] In Brooks v. Toronto (City), 2015 HRTO 362, at para.18, the Tribunal summarized the principles underlying s. 45.1 of the Code as follows:

• It is in the interests of the public and the parties that the finality of a decision can be relied on.

• Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice. On the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings.

• The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature.

• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision.

• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources.

[27] Section 45.1 of the Code requires a two-part analysis:

(1) whether there was another proceeding; and, if so,

(2) whether it appropriately dealt with the substance of the application.

[28] With respect to the first part of the analysis, the HRTO has frequently found that a labour arbitration is “another proceeding” capable of appropriately dealing with the substance of a human right application: Virgin v. Dollar, 2009 HRTO 899 and Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448.

[29] With respect to the second part of the analysis, as laid down in Figliola and Penner, there are four questions to consider in order to determine whether another proceeding has “appropriately dealt with” the substance of the application: Brooks and Claybourn v. Toronto Police Services Board, 2013 HRTO 1298. These are:

(i) whether the other proceeding had concurrent jurisdiction to determine human rights issues;

(ii) whether the previously decided issues were the same as the issues complained of to this Tribunal;

(iii) whether there was an opportunity for the applicant or his or her privies to know the case to be met and have the chance to meet it; and

(iv) whether it would be unfair to use the results of the previous preceding to preclude the applicant from proceeding with this Application.

[30] The HRTO found that the Arbitrator had the jurisdiction to consider and apply the Code. However, Adjudicator Connell also found that the Arbitrator did not expressly consider whether the Applicant’s allegations of Code violations were a factor in the treatment that he said he experienced. She accepted the Applicant’s testimony, which the College did not dispute, that he wanted the Union to pursue his Code-based allegations in the grievance proceedings but the Union ultimately decided that it would not do so.

[31] Nevertheless, the HRTO found that both of the two broad categories of allegations—those pertaining to the DBA program and generalized alleged incidents of discrimination and harassment— were based on the same facts and had been sufficiently addressed in the Arbitration decision.

[32] Regarding the DBA program, the HRTO found that the Arbitrator reviewed and dismissed this allegation. The HRTO noted that, among other things, the Arbitrator found that Mr. Giberson “went out of his way to support” and “accommodate [the Applicant’s] concerns” regarding the DBA program. Based on the Arbitrator’s findings on the DBA program, the HRTO concluded, “there can be no factual foundation for an argument that Mr. Giberson’s actions were discriminatory” concerning the Applicant’s requests related to the DBA program.

[33] On the other allegations of discrimination and harassment, the HRTO found that the Applicant’s Code-based factual allegations were all before the Arbitrator. The HRTO concluded that the Arbitrator dismissed the Applicant’s argument that Mr. Giberson engaged in harassment or psychological bullying in any form. The HRTO observed that the Arbitrator noted the “common theme” in the Applicant’s allegations that he considered himself to be harassed when his positions or suggestions in the workplace were not supported. The HRTO placed weight on the Arbitrator’s finding that most of the incidents were ones in which Mr. Giberson expressed legitimate disagreement with the Applicant or in which Mr. Giberson expressed reasonable criticism of the Applicant and did not amount to harassment/psychological bullying or any other violation of the collective agreement. The HRTO also noted that the allegations of derisive comments were not proven. On the allegation that the Applicant was treated differently than his “white” colleagues, the HRTO found that this too was put before the Arbitrator and dismissed.

[34] The HRTO found that it was “clear that the previously decided issues in the grievance proceedings are the same issues complained of to this Tribunal, even if they were not assessed through a Code-based lens.” She found that the Applicant’s discussions with Mr. Giberson regarding taking a leave from the DBA program was a central issue before the Arbitrator. Indeed, the Arbitrator described this as “one of the more contentious and serious incidents”. After hearing the parties’ evidence and submissions over six days of hearing, the Arbitrator dismissed the grievance in its entirety, including with respect to the issue of taking a leave from the DBA program.

[35] Despite the acknowledged fact that the Code-based allegations per se did not form part of the Arbitrator’s purview, Adjudicator Connell found that the HRTO had, “on numerous occasions, held that where the facts to be determined in the Application are the same as the facts that applied to the determination of the allegations made in the other proceeding and where a finding on these facts is necessary in determining the alleged violations of the Code, it will regard the “substance” of the human rights Application to have been resolved by the other proceeding.”

[36] “More specifically”, she went on to find:

many cases have noted that where the legal or factual findings made in another proceeding preclude a finding of discrimination, explicitly or implicitly, an Application must be dismissed even if the other proceeding did not specifically apply the Code [emphasis added].

See, for example, Free v. Magnetawan (Municipality), 2017 HRTO 277 at para. 26 and the cases cited therein, Paterno v. Salvation Army, 2011 HRTO 2298 and Murray v. Kitchener Wilmot Hydro Inc., 2018 HRTO 1002.

[37] The HRTO was satisfied that, Code-based lens or no, the parties had full notice of and the opportunity to be heard on the essential factual issues and allegations. There was broad and extensive pre-hearing disclosure. Both sides were represented by experienced counsel over the course of a six-day hearing.

[38] Finally, based on these findings, the HRTO determined that allowing the Applicant to proceed with discrimination claims under the Code would improperly permit the re-litigation of issues already dealt with in the arbitration. Indeed, the HRTO observed that for the Application to succeed, the HRTO would have to make findings contrary to those in the arbitration decision.

[39] Following the HRTO’s s. 45.1 decision, the Applicant filed a Request for Reconsideration of the Tribunal’s Decision. The Applicant argued that the HRTO erred with respect to the application of s. 45.1 case law and denied him a fair process because the same member who decided the College’s s. 45.1 motion also decided the Applicant’s Reconsideration request.

[40] On the issue of the applicable case law, Adjudicator Connell rejected the idea that she departed from HRTO’s jurisprudence, as well as the Applicant’s suggestion that she was required to opine on every one of the 45 authorities he had cited.

[41] In terms of procedural fairness, Adjudicator Connell rejected the claim she should have recused herself, finding that the Applicant had not satisfied the legal test for a reasonable apprehension of bias. The HRTO also rejected other procedural fairness concerns raised by the Applicant, including, but not limited to, allegations of secretive interactions between the HRTO’s staff and the College’s counsel, undue delay in reactivating the Applicant’s Application, and the fact that the Vice-Chair of the HRTO did not preside over the s. 45.1 hearing.

The Standard of Review

[42] Section 45.8 of the Code provides that a decision of the HRTO “is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable”. This Court has, however, for some time applied the reasonableness standard in reviewing decisions of the HRTO: Shaw v. Phipps, 2010 ONSC 3884 (Div. Ct.) at paras. 41 – 42, affirmed, 2012 ONCA 155 at para. 10.

[43] The HRTO takes the position that the Supreme Court’s emphasis on legislative intention in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 17 and 30 – 31 has opened the door to a reconsideration of Shaw. This Court has already declined to reassess Shaw in a number of post-Vavilov cases, including Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632 at paras 30-45, and Ontario v. Association of Ontario Midwives, 2020 ONSC 2839, at para. 90. As will become apparent in the course of these reasons, we do not think any part of this case turns on whether the standard of review is reasonableness or patent unreasonableness. Accordingly, we once again decline to reconsider the applicability of Shaw in light of Vavilov. We note, in coming to this conclusion, that the Court of Appeal for Ontario similarly declined to revisit this issue in Longueépée v. University of Waterloo, 2020 ONCA 830. The standard of review on the main issue, the applicability of s. 45.1 of the Code, is reasonableness.

[44] On issues of procedural fairness, including allegations of bias, the task for the reviewing court is to determine whether the required level of procedural fairness has been accorded.

Did the HRTO Unreasonably Apply the Section 45.1 Test?

[45] The Applicant’s primary argument is that the HRTO erred in its application of the two-part test under s. 45.1 of the Code. The Applicant argues that the HRTO made two essential findings of fact which dictate a different outcome from the one reached by the HRTO in its Decision and Reconsideration:

(1) the finding in para. 18 of the Decision that the Applicant wanted the Union to pursue his Code-based allegations in the arbitration but the Union decided it would not do so; and

(2) the finding in para. 26 of the Decision that the Applicant did not have carriage of the grievance, strongly wanted to pursue his Code-based allegations in the arbitration proceeding and was thwarted by the Union’s decision not to advance the Code-based allegations at the arbitration.

[46] The Applicant argues, based on these essential findings, that is clear he did not have, and could not have had, a fair opportunity to put his Code-based allegations forward to any prior decision maker who had authority to assess them. He further argues that, since there was no decision on his Code-based allegations by the Arbitrator, he necessarily cannot be accused of trying to relitigate the issues decided in the arbitration or to “split” his case for tactical advantage. Not only, he says, was there no prior “proceeding” but the substance of his Code-based allegations was not dealt with at all, much less “appropriately dealt with” in the prior proceeding as required under s. 45.1.

[47] The Applicant then goes on to support his argument with citations from a number of HRTO and other decisions which, having found that certain allegations were not raised in the prior proceeding, concluded, as a result, either that there was no prior proceeding at all or that the substance of the human rights issues had not been appropriately dealt with in the prior proceeding.

[48] Many of these cases, however, were decided on the basis that a union had withdrawn the grievance altogether without the grievor’s consent. This highlights the essential flaw in the Applicant’s argument on this issue.

[49] In this case, the grievance proceeded through full disclosure and a lengthy arbitration hearing. The Union aggressively prosecuted the Applicant’s case of harassment, bullying and discrimination under the collective agreement over the course of a six-day proceeding. The HRTO found that the same factual matrix relied on to support the grievances based on the collective agreement underpinned the allegations of Code-based violations as well.

[50] Factual findings were made by the Arbitrator about the College’s response to the Applicant’s desire to take a leave from the DBA program, about the numerous interactions from April 2013 to August 2016 and about the harsh and belittling statements allegedly made by Mr. Giberson to the Applicant. For example, the Arbitrator found that most of the incidents were ones in which Mr. Giberson expressed “legitimate disagreement with” or “reasonably criticized” the Applicant. The Arbitrator found a “common theme” in the Applicant’s allegations - that he considered himself to be harassed or discriminated against whenever his positions were not supported by Mr. Giberson or other colleagues in the workplace.

[51] These factual findings, the HRTO concluded, operated to deny any factual foundation for the Applicant’s allegations, based on the same incidents, under the Code. Indeed, the HRTO found that, in order to succeed on his Code-based allegations, the Applicant would necessarily have to seek from the HRTO contrary and inconsistent factual findings about the same incidents considered by the Arbitrator. The HRTO thus concluded, in the specific circumstances of this case, that the two-part test in section 45.1, as interpreted in Figliola, et al., was met.

[52] Reconsideration is a discretionary procedure available to the HRTO to which this Court owes deference. Rule 26.5 of the HRTO’s procedures provides that a request for reconsideration may be granted where:

a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

[53] In this case, the HRTO considered the Applicant’s Request for Reconsideration under grounds c) and d). The HRTO concluded that the Applicant had not established the grounds for reconsideration under Rule 26.5 and dismissed his request. The HRTO held that its application of s. 45.1 was consistent with the HRTO’s case law. The fact that the Decision did not address every single one of the Applicant’s Authorities did not render the Decision unreasonable.

[54] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). There was ample support in the record and in the law for the HRTO’s conclusions in the Decision and in the Reconsideration. The HRTO’s reasons are thorough, cogent and clear. In the language of Vavilov, we find the HRTO’s decision to be justified, transparent and intelligible and to be justified in relation to the relevant factual and legal constraints (Vavilov, at para. 99). The Applicant bears the burden of demonstrating unreasonableness, including that any shortcomings or flaws “are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100). There are no flaws sufficiently central or significant to render the decision unreasonable.

[55] The application for judicial review on this issue is dismissed.

[56] The Applicant also asks this Court to quash the interim decision issued by the Vice-Chair on June 6, 2019, which removed the former President of the College and the Dean of Business as personal respondents in the application. He argues that the interim decision:

(i) is not transparent because it does not refer to the Applicant’s submission of April 15, 2019;

(ii) is not justified because the personal respondents are no longer under the control of Sheridan College and, thus, only the HRTO can order them to take the human rights training that is a public interest remedy requested by the Applicant; and

(iii) is not intelligible because no documents or will say statements have been exchanged between the Applicant and the Respondents. It is, therefore, “too early” in the process to determine whether their conduct is central to the Code-based harassment that is alleged by the Applicant.

[57] There is no merit to any of these submissions. The Applicant is merely rearguing the substance of the submissions he made at first instance. The fact that the Vice Chair did not agree with him does not make the interim decision unreasonable.

[58] Rule 1.7(b) of the HRTO Rules provides that the Tribunal may add or remove a party. There is settled precedent from the HRTO setting out the approach to a motion seeking the removal of a party: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42; Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5.

[59] Applying this settled precedent, the Vice Chair found there was no issue with respect to the ability of the corporate respondent to respond to or remedy the alleged improper conduct, nor was there any issue with respect to the corporate respondent’s deemed liability in the context of the allegations. Neither the President nor the Dean were alleged to have had any personal involvement in the events giving rise to the application. The Vice Chair found that the Applicant would not be prejudiced by removing the President and the Dean as parties. She also found, however, that there were compelling reasons to continue the Application against the personal respondent, Mr. Giberson, because he was central to the allegations in the Application as framed.

[60] The HRTO is entitled to significant deference on a decision of this kind. The interim decision is, in substance, transparent, justified and reasonable. It is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law.

[61] The application for judicial review on this issue is dismissed.

Was the Applicant Denied Procedural Fairness?

[62] The Applicant’s procedural fairness arguments include allegations that: the HRTO failed to follow its case processing system by not assigning a Vice-Chair to the file; failed to process his application in a reasonable period of time; allowed the College to control the HRTO process; the HRTO had private discussions with the College regarding the application; and, that the HRTO violated provisions of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

[63] We do not give effect to any of these arguments. There was no denial of procedural fairness. The Applicant had detailed notice of the issues that were to be raised on the s. 45.1 hearing and in the Reconsideration hearing. He had, and took advantage of, the opportunity to file extensive submissions in both instances.

[64] Within reasonable parameters, the HRTO is entitled to determine the procedure that it will follow in deciding the matters that are before it. Generally, the HRTO has wide authority to make its rules and they are to be liberally construed. Nothing in what happened here strayed beyond the bounds of the reasonable.

[65] Administrative processing times vary and a delay of fourteen months, without evidence of any accompanying prejudice, does not render the process unfair. As the HRTO noted in the Reconsideration Decision, the allegation that the HRTO was slower in processing the application because of the Applicant’s race, colour, ethnic origin or creed is entirely speculative. Equally speculative is the suggestion that the HRTO only reactivated the application when the Premier of Ontario purportedly intervened.

[66] The ability of the HRTO to control its own processes includes the ability to decide who, from the available team of adjudicators, is assigned which cases. These decisions are not subject to review absent evidence of unusual circumstances, such as known bias which, as discussed below, has in any event not been shown here.

[67] The Applicant takes issue with the fact that the Registrar of the HRTO issued the notice of hearing for the preliminary issues proceeding. The Registrar of the HRTO did not act beyond its jurisdiction in scheduling a s. 45.1 hearing. The HRTO’s Rules give the Registrar authority to schedule hearings.

[68] The Applicant also argues that depriving him of a hearing on his Code-based allegations was unfair because the HRTO has remedies available to it which were not available to the Arbitrator under the collective agreement. This argument misses the point. As reasonably found by the Adjudicator, the factual findings of the Arbitrator, based on the same facts alleged in the HRTO Application, precluded any finding of Code-based violations. The issue of remedy simply never entered into the analysis.

[69] With respect to the alleged breaches of the Statutory Powers Procedure Act, an administrative body is the master of its own process. The Court will generally defer to the process adopted by administrative entities, especially when, as here, the tribunal has been given the discretion to develop its own processes. In this case, the alleged breaches are speculative, unsupported by any evidence of prejudice and, even if they took place (which has not been established), do not rise to the level of a violation of natural justice.

[70] The Charter arguments were raised for the first time on this application for judicial review. The court has the discretion to refuse to deal with an issue that could have been raised before the administrative decision maker, but is not raised until judicial review. The rationale for declining to hear such an argument rests on a number of considerations: showing respect for the legislative decision to confer first line responsibility on the administrative decision maker to make such decisions; obtaining the benefit, for the court on judicial review, of a decision of the specialized decision maker on the issue; avoiding any unfair prejudice to the responding party; and ensuring that there is an adequate evidentiary record to decide the question (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Federation, 2011 SCC 61, [2011] 3 S.C.R. 654 at paras. 22-26). These issues are significant and should have been raised below to allow the parties to adduce evidence and the HRTO to make a decision on a complete record. For these reasons, we do not think it is appropriate to consider these arguments.

[71] The application for judicial review on this issue is dismissed.

Did Either the First or the Reconsideration Decision Give Rise to a Reasonable Apprehension of Bias?

[72] The Applicant submits that, given the factual findings made by the HRTO in paras. 18 and 26 of the Decision (cited above), the only reasonable conclusion is that he was not given a fair opportunity to put his human rights allegations forward to a decision maker with jurisdiction to address them.

[73] The Applicant further submits that an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not that his human rights application could not be dismissed under s. 45.1 of the Code. Therefore, the Applicant submits, there is a reasonable apprehension of bias in the Decision and the Reconsideration of the HRTO.

[74] This submission completely misunderstands and misapplies the law of bias. If the Applicant’s submission were correct, every appeal and judicial review would automatically involve the additional allegation of bias. Decision makers enjoy a strong presumption of impartiality. There is a high threshold for establishing a reasonable apprehension of bias. The party alleging actual bias or a reasonable apprehension of bias bears the burden of meeting that threshold. The Applicant has utterly failed to discharge his burden of showing a reasonable apprehension of bias.

[75] We would add that the HRTO has a wide latitude to determine which of its adjudicators may decide a Request for Reconsideration. The HRTO is best placed to make such a determination, to which this Court owes deference. Absent evidence of a particular problem, there is nothing prohibiting the original decision maker from considering the Reconsideration Request as well: Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604 at paras. 92-99 (Div. Ct.); Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 at paras. 16-17 (Div. Ct.). As noted earlier, nothing in this case remotely approaches the test for a reasonable apprehension of bias. We therefore dismiss the application for judicial review on this ground as well.

Conclusion

[76] For the foregoing reasons, the application for judicial review is dismissed.

Costs

[77] The College sought the amount of $10,000 if it prevailed. The Applicant sought lost opportunity costs for the time he spent preparing for this judicial review in the amount of $20,000. He also asked that no costs be awarded against him because his application was in the public interest and because of alleged misconduct by the College’s counsel before the HRTO.

[78] We do not accept that the Applicant should be relieved of the normal disposition that partial indemnity costs be awarded in favour of the successful party. The application for judicial review he brought was very much in his personal, not the public, interest. There is no merit to the Applicant’s allegation of impropriety against the College’s counsel. Costs are awarded to the College in the amount of $10,000 payable by the Applicant. The HRTO does not seeks costs.

Swinton J.

Penny J.

Kristjanson J.

Released: March 8, 2021

CITATION: Aggarwal v. Sheridan College, 2021 ONSC 1399

DIVISIONAL COURT FILE NO.: 478/20

DATE: 20210308

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Penny and Kristjanson JJ.

BETWEEN:

DR. BHARAT AGGARWAL

Applicant

– and –

SHERIDAN COLLEGE and HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

REASONS FOR JUDGMENT

By the Court

Released: March 8, 2021