CITATION: N.S. v. Human Rights Tribunal of Ontario, 2021 ONSC 4055

DIVISIONAL COURT FILE NO.: 170 /21

DATE: 20210604

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: N.S., Applicant

AND:

HUMAN RIGHTS TRIBUNAL OF ONTARIO, LAW SOCIETY OF ONTARIO, DIANA MILES, ELLIOT SPEARS, JIM VARRO, MARIAN MACGREGOR and PAUL SAGUIL, Respondents

BEFORE: Penny J.

COUNSEL: Sophia Irish Dales for the Law Society of Ontario and personal respondents

Brian Blumenthal for the HRTO

N.S. on her own behalf, assisted by Christopher Folz

HEARD (by videoconference): June 2, 2021

ENDORSEMENT

OVerview and background

[1] This is a motion by the Law Society of Ontario and the personal respondents (all associated with the LSO in some capacity) for an order quashing the application for judicial review brought by the applicant on grounds of prematurity. The motion is supported by the Human Rights Tribunal of Ontario.

[2] The applicant filed a complaint with the Tribunal against the LSO respondents (hereinafter referred to as the LSO) alleging discrimination in the manner in which the LSO handled the applicant’s complaint against the conduct of another licensee. The LSO filed a response to the complaint. In the response, the LSO also advanced several arguments for why the applicant’s complaint should be summarily dismissed.

[3] In January 2020, the applicant filed with the Tribunal a Form 10 request for: (a) an order for early production of documents; and (b) a sealing order or, alternatively, an anonymization order. In February 2020, the LSO filed a Form 11 response opposing the relief sought by the applicant.

[4] On April 29, 2020, two things happened. First, the Tribunal’s Registrar sent a letter to the applicant advising that her request for production of documents was premature and would not be considered at that time.

[5] In addition, the Vice Chair of the Tribunal issued a case assessment direction. The Vice Chair indicated that the Tribunal had reviewed the file and had decided to hold a summary hearing. At a summary hearing, the Tribunal decides whether it should dismiss all or part of an application on a summary basis. The test is whether there is “no reasonable prospect” that all or some part of the application will succeed.

[6] The direction set out a detailed description of the summary hearing process. The Vice Chair explained that the summary hearing gives an applicant an opportunity to more fully explain the allegations contained in the application. It also provides the Tribunal with the opportunity to hear arguments from the parties before it makes its decision.

[7] Importantly, the direction explained that no witnesses are called to testify at a summary hearing and the parties are not expected to submit documents for the summary hearing. Instead, the Tribunal makes its decision based on the materials already filed by the parties and their submissions in the summary hearing. If the parties do wish to refer to any additional documents at the summary hearing, they must deliver them to the Tribunal and each other no later than 5 weeks (35 days) before the date of the summary hearing. The direction explains in the FAQ section that, in a summary hearing, the Tribunal generally assumes the applicant’s version of events to be true. The focus of the summary hearing is on whether the events alleged by the applicant amount to a violation of the Code and/or on whether there is any evidence available to the applicant to connect the events she is alleging to a ground of discrimination protected under the Code.

[8] The direction itemizes several specific concerns about the complaint and expectations of the applicant to address those concerns. For example, the direction states that the applicant:

• will be expected to explain what evidence she expects to be able to present at a merits hearing to support a link between the Code grounds she relies upon and the respondents’ actions

• should be prepared to describe the evidence that she has or has reasonably available to her that the correspondence of a named LSO licensee to her amounted to discrimination or harassment, rather than a pro forma communication as alleged in the LSO’s response to the complaint

• should be prepared to explain how the respondents’ response to her concerns at the time were inadequate

• will be expected to explain what evidence she expects to be able to present at the merits hearing to make out her reprisal claim in this case.

[9] Following receipt of both communications, the applicant sought a reconsideration of the Registrar’s decision not to make an immediate order for production. The Registrar declined to do so on the basis that, under the Tribunal’s rules, reconsideration is only available for a final, not an interim, decision.

[10] On February 16, 2021, the applicant commenced an application for judicial review of the Registrar’s “decision” that it was premature to make order for early production of documents and the Registrar’s failure to reconsider this decision.

[11] A consent order was issued by this Court shortly before the hearing of this motion protecting the anonymity of the applicant in these proceedings.

Analysis and Disposition

[12] The applicant submits that her application for judicial review is not premature. This submission is founded on two grounds: first, that the Tribunal has “finally” determined her request for document production adversely to her; and, second, that, while agreeing that the Divisional Court does routinely refuse to judicially review tribunals’ interim or interlocutory decisions on the grounds that the relief sought is premature, the Divisional Court also allow judicial reviews of tribunal interim or interlocutory decisions in certain circumstances. Those circumstances include where:

(a) the procedure before the administrative tribunal would be “fatally flawed” even where a right of appeal is provided for within the administrative regime;

(b) the administrative tribunal proceeding would result in an unfair hearing or a breach of natural justice;

(c) the interlocutory decision determines a particular issue; or

(d) the application is not devoid of merit and the responding party in the proceeding should seek to secure an early date of the hearing and “should not be encouraged to jump the queue”.

[13] The Registrar’s letter of April 29, 2020 cannot be regarded as constituting a final decision to reject the applicant’s request for document production. While the letter makes reference to the deadline for disclosure in Rule 16.1 not having yet passed, that letter was obviously written assuming the normal process leading to a merits hearing. The Registrar’s letter is clear that the applicant’s document production request is simply being deferred, not dismissed, to be dealt with in accordance with the Tribunal’s procedures for the conduct of hearings, etc.

[14] The legal test on a motion to quash is whether it is plain and obvious that the application cannot succeed; or, “is it beyond doubt that the application for judicial review will fail”? The applicant argues that the legal test for prematurity is “manifestly” premature. I am not sure this is any different than “plain and obvious” or “beyond doubt”, but, in any event, the application for judicial review is manifestly premature in the circumstances and for this reason, it is plain and obvious that it cannot succeed. There has been no decision about whether the applicant is or is not entitled to production of documents in advance of her summary hearing.

[15] The HRTO Letter is an interim direction – not a final order of the HRTO. This is exactly the type of “prematurity” case in which the Divisional Court has routinely opted not to exercise its discretion to judicially review an interim decision of an administrative tribunal. There are many policy reasons why courts do not review interim tribunal decisions, except in exceptional circumstances, including:

• the Legislature’s intent to delegate specific decision-making power to tribunals;

• the fact that the administrative proceeding is ongoing, making it problematic for the court to review an interim tribunal decision prematurely; and,

• the tribunal proceeding has not reached a final conclusion.

[16] There are no exceptional circumstances here warranting the Court’s early intervention in the HRTO’s interim decision-making.

[17] The Vice Chair’s direction (which is not being challenged in this application) of the same date as the Registrar’s letter obviously changes the “normal” process by directing a summary hearing. The Tribunal’s Rule 19.2A provides that Rules 16 and 17 do not apply to summary hearings. However, the Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

[18] In response to questions from the Court, Mr. Blumenthal explained that, while not the norm, it is possible for an applicant to request document production from the Tribunal and obtain a ruling under Rule 19.2A prior to a summary hearing. Such a request would be made after the summary hearing process is formally triggered by the issuance of a notice of summary hearing, which has not yet occurred.

[19] The applicant, therefore, may, if so advised, seek a production order from the Tribunal once the notice of summary hearing has been issued, explaining the grounds upon which she maintains that such production is necessary – such as, whether it is necessary, on grounds of natural justice, to ensure a procedurally fair hearing. Any order made today is clearly without prejudice to the applicant’s right to make such requests. These are questions, however, for the Tribunal to decide, not the Court on this motion.

[20] For these reasons, the motion to quash the application for judicial review on grounds of prematurity is granted. An order shall therefore issue quashing the applicant’s February 16, 2021 notice of application for judicial review in this matter.

Costs

[21] This motion is a minor skirmish in a larger engagement. The intersection and timing of the Registrar’s letter and the Vice Chair’s case assessment direction perhaps introduced unintended confusion about the nature of the process and when and how the applicant was to seek document production. That, at least, has been clarified in the process of issuing the application and this motion and, it is to be hoped, will assist in the orderly progress of this matter. In all the circumstances I make no order as to costs.

Penny J.

Date: June 4, 2021