CITATION: De Rose v. Windsor-Essex Catholic District School Board, 2022 ONSC 6909
DIVISIONAL COURT FILE NO.: DC-405-20
DATE: 20221208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LeMay, Doyle and Leiper JJ.
BETWEEN:
LINDA DE ROSE
Applicant
– and –
WINDSOR-ESSEX CATHOLIC DISTRICT SCHOOL BOARD, JIM MINELLO and the HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
Paul Brooks, for the Applicant
Jessica Koper, for the Respondent Windsor-Essex Catholic District School Board and Jim Minello
Brian Blumenthal and Katia Snukal, for the Respondent Human Rights Tribunal of Ontario
HEARD by videoconference at London: November 22, 2022
BY THE COURT
PART I INTRODUCTION
[1] The Applicant was a mathematics teacher with the Windsor-Essex Catholic District School Board from 1985 until the Board terminated her employment in October of 2009.
[2] The Applicant brings this application for judicial review of a 2020 decision of the Human Rights Tribunal of Ontario staying an application related to breaches of the Human Rights Code in her workplace as an abuse of process. The Applicant’s union had been pursuing grievances on her behalf for a considerable period of time before she brought her HRTO application.
[3] The background to the HRTO application is that it was originally brought by the Applicant in 2010 but was deferred pending the Applicant seeking redress through her union.
[4] Specifically, prior to her termination in 2009, the Applicant and her union had been engaged in grievance proceedings involving issues of disability, harassment, and accommodation. Following her termination in 2009, the union grieved that decision, and several years of litigation followed which involved requests for medical reports, mediation and ultimately a proposed settlement of the issues.
[5] In 2015, the Union withdrew the grievances. In 2016, the Applicant reactivated the Human Rights application.
[6] In 2019, in response to a request from the Respondents School Board and Jim Minello, the HRTO held a preliminary hearing on the question of whether to stay the proceedings before it as an abuse of process.
[7] On May 5, 2020, the HRTO Vice-Chair, Josée Bouchard (the “Vice-Chair”) concluded that the application was an abuse of process and dismissed the application.
[8] For the reasons that follow, we conclude that the HRTO Vice-Chair correctly identified the test for abuse of process and applied that test to the findings of fact and evidence before her. We find that the HRTO Vice-Chair’s decision to stay the proceedings for an abuse of process was a reasonable one. The application for judicial review is, therefore, dismissed.
PART II BACKGROUND FACTS
The Parties
[9] The Applicant was employed by the Windsor-Essex Catholic District School Board as a high school teacher from 1985 until October 2009, when she was dismissed by the Respondent Board.
[10] The Ontario English Catholic Teachers’ Association (OECTA) is the Applicant’s union. On her behalf, they filed 11 grievances to address the Applicant’s accommodations, salary, harassment, sick days, benefits and ultimately termination issues.
[11] Jim Minello (Minello) was the principal at the school where the Applicant taught. Minello is a personal Respondent in this case. Given that Minello’s interests do not diverge and the differences between him and the Respondent Board do not matter, we will refer to them collectively as the Respondent or the Respondent Board.
Events leading up to the preliminary hearing before the HRTO
[12] Commencing in 1996, the Applicant taught mathematics at Holy Names High School. The Applicant was on medical leave from 2001 to 2005.
[13] The Applicant returned to work based on a plan that recognized her medical conditions and accommodation recommendations and restrictions.
[14] Upon her return, the Applicant alleged that she was not accommodated and further that Minello began harassing her and was aggressive towards her.
[15] From 2006 to 2008, OECTA grieved violations of the collective agreement and the Applicant’s accommodation, discrimination, and harassment issues.
[16] In 2007, the Applicant retained a lawyer, James Renaud (Renaud), to assist her even though she had representation through OECTA. Renaud communicated with OECTA and advocated on the Applicant’s behalf in the arbitration process and with the HRTO.
[17] In 2007, arbitrator Brian Keller, who was seized of various grievances in this matter, ordered that the Board and OECTA each provide names of doctors to whom the Applicant could be referred for an assessment. The Applicant and OECTA provided several doctors’ names, but the Board did not.
[18] In 2008, the Applicant took a medical leave for stress. In 2009, her family doctor, Dr. Kuprowski. recommended a return to work with restrictions.
[19] In early October 2009, Arbitrator Keller ordered the Board to accommodate the Applicant by October 13, 2009, in accordance with her physician’s recommendations, at the Catholic Central Secondary School. This Order was made on consent.
[20] The Applicant attended at that school, and she alleges that the staff knew nothing about her position. From its’ perspective, the Board said that Dr. Kuprowski’s restrictions were not reasonable and refused to accommodate them. The Board dismissed the Applicant on October 23, 2009 for failure to complete her work.
[21] The Board took the position that the Applicant’s additional “demand note” from her medical doctor contradicted the agreed-upon accommodations among the parties after the arbitration appearance in early October of 2009.
[22] OECTA filed more grievances relating to the Board’s lack of accommodation and the October 23, 2009 termination from her employment.
[23] The arbitration hearing on these latter grievances proceeded in 2009 with opening statements, documentary evidence and cross-examination.
[24] In the November 2009 hearing before Arbitrator Keller, Dr. Kuprowski testified that the Applicant had drafted 70% of the medical report including the work restrictions and accommodations. Dr. Kuprowski also testified that he did not make further inquiries before he wrote his September 14, 2009 report. Dr. Kuprowski’s testimony was not favourable to OECTA and the Applicant. While the Vice-Chair did not have a transcript of this testimony, she heard evidence from both the Board’s lawyer, Brian Nolan and the OECTA lawyer, Bernie Hanson, that this was the case.
[25] The Applicant alleged that the parties had harassed Dr. Kuprowski and pressured him to provide this testimony. However, she did not claim that the testimony before the HRTO about her doctor’s report was completely inaccurate, although she did testify that it would be incorrect to say that she had written “70 to 75%” of the September 14th, 2009 report.
[26] On December 8, 2009, the Board formally offered to reinstate the Applicant’s employment and provided OECTA with an accommodation plan for her to consider with an expectation that she would report to work on December 15, 2009. However, OECTA had concerns with the accommodation plan and viewed it as potentially inappropriate for the Applicant. OECTA referred the plan to Renaud, her counsel.
[27] Renaud advised the Applicant that she should take the accommodation plan to her medical specialists before accepting it. Seventeen months later, the Applicant obtained two medical reports that commented on the proposed accommodation plan. Some of the delay was caused by the Applicant’s authorization for the physicians to speak to OECTA. Additional delay arose from OECTA having difficulty finding a specialist who was willing to testify at the arbitration hearing.
[28] To preserve her rights within the time required, the Applicant filed an application for relief under s. 34 of the Human Rights Code R.S.O. 1990, c. H 19 as amended, (the Code). These claims arise from the Applicant’s medical leave of absence, her return to work and her termination. She alleges that there was a lack of accommodation and discrimination leading to her termination with the Board.
[29] On consent, the HRTO application was deferred pending the completion of the arbitration proceedings.
[30] Between January 6th, 2010 and the summer of 2011, the arbitration hearing was adjourned on several occasions at the request of OECTA. Those requests were made on behalf of the Applicant because the Applicant was seeking further medical reports.
[31] In June 2021, the Applicant sent the medical reports of Drs. Prestegaard and Gurr to OECTA. OECTA forwarded these reports to the Board and the Board requested that the arbitration be adjourned to November 2011 so that its counsel could review the reports and prepare for cross-examination.
[32] In a letter dated October 19, 2012, Hanson advised Renaud that OECTA would not pay Dr. Prestegaard’s fee, which was $10,000.00. Therefore, OECTA gave the Applicant the following options: the Applicant could be seen by a third specialist, OECTA could summon Dr. Gurr and/or the Applicant or OECTA could proceed by relying on the reports already obtained and filed. Given that Dr. Prestegaard was in Michigan, summonsing her would have presented significant challenges. As there was no response to this letter, OECTA followed up with Renaud in April 2013, October 2015 and November 2015.
[33] At the hearing before the HRTO Vice-Chair, Renaud admitted that he did not respond to that letter at any point between when it was sent and when the grievances were ultimately withdrawn as described below.
[34] In October 2012, the Board requested that the HRTO application be dismissed as abandoned. That request was denied.
[35] On a number of occasions in 2012, Renaud wrote to the HRTO. In those communications, he expressed frustration with the course of the arbitration proceeding. Consideration was given by Renaud to reactivating the HRTO complaint, but ultimately the Applicant continued to seek remedies through arbitration.
[36] Renaud applied to intervene in the arbitration on April 22, 2014. OECTA and the Board opposed the application for intervenor status.
[37] In May 2015, Renaud again reiterated his concern with the pace of the arbitration and asked Arbitrator Keller to impose a case management schedule
[38] In November 2015, Hanson advised that the arbitration was at a standstill due to the positions of the Applicant’s physicians. In the November 2015 mediation, the parties discussed compensation in exchange for the withdrawal of the grievances and termination. The parties were not able to agree.
[39] On November 13, 2015, OECTA withdrew all the grievances. Hanson testified that as result of the communications between the arbitrator, OECTA, the Applicant, and Renaud, OECTA had no other option. Specifically, Hanson’s correspondence of November 13th, 2015 suggests that OECTA withdrew the grievances at the request of the Applicant. The Applicant alleged that she was shocked to learn that the grievances had been withdrawn and that she did not request this. She requested that her HRTO application be re-activated. Renaud advised Hanson that the withdrawal of the grievances was unilateral.
[40] In total, at least seven subsequent hearing dates after the last day of the hearing of November 10, 2009 were cancelled and six of those dates were adjourned by the OECTA as the Applicant did not produce witnesses.
[41] In December 2015, Renaud advised the HRTO that OECTA had unliterally withdrawn the grievances and accordingly, the Applicant wished to reactivate the HRTO application. The Board opposed the reactivation of the HRTO application and filed a request to dismiss the application as untimely and that the Board would be prejudiced by the delay in the grievance process.
The HRTO Proceedings
[42] From October 2010 until November 2015, the HRTO requested periodic status updates from the Applicant. She asked to reactivate the HRTO proceeding through her counsel on November 28, 2012. That request was denied.
[43] In April 2013, the OECTA provided an update regarding the status of the labour arbitration proceeding including a copy of the letter dated October 19, 2012.
[44] On January 6, 2016, the Applicant filed a request to reactivate the application pursuant to the Tribunal’s Rules of Procedure after the grievances before the arbitrator were withdrawn by OECTA on November 13, 2015.
[45] In her interim decision dated March 3, 2016, Vice-Chair Pickel dismissed the Board’s request and reactivated the HRTO application and directed the Board to file a response. She noted that both parties bore some responsibility for the delay in the grievance process. The Respondents duly filed a reply.
[46] On June 1, 2017, the respondents sought to dismiss the HRTO application on the basis of delay, prejudice and abuse of process and sought to remove the personal respondent, Minello as a party to the application.
[47] On July 18, 2017, the HRTO issued a case assessment direction that a preliminary hearing was to be held in order to determine:
a. Whether the allegations were untimely
b. Whether to dismiss for substantial administrative delay,
c. Whether to dismiss for abuse of process; and
d. Whether to remove the personal respondent, Jim Minello.
[48] The preliminary hearing did not take place until late 2019. The hearings were held on October 8-10, 2019, November 19-20, 2019 and March 5-6, 2020. At the hearing, four witnesses testified: the Applicant, Renaud, Nolan and Hanson.
[49] On May 5, 2020, Vice-Chair Josée Bouchard dismissed the Applicant’s application as an abuse of process. The Vice-Chair Bouchard did not decide the other issues set out at paragraph 47 above. The Vice-Chair stated that allowing the hearing to proceed would violate the principle of judicial economy and bring the administration of justice into disrepute.
[50] The Vice-Chair made seven key findings in support of her decision to stay the proceedings as an abuse of process:
a. Arbitrator Keller had jurisdiction over the same allegations contained in the HRTO application;
b. The Grievance process was well underway and evidence had been heard;
c. The Applicant’s medical evidence was unfavorable to her case;
d. There was substantial delay in the arbitration process caused by the Applicant;
e. The arbitration hearing was at an impasse for three years because of the actions of the Applicant and Renaud;
f. Knowing the weakness of her case before arbitrator Keller, the Applicant chose to proceed before the tribunal which amounted to forum shopping;
g. The Applicant was unwilling or unable to produce medical evidence favourable to her case in the grievance proceeding so that the Vice-Chair could adjudicate.
[51] On June 4, 2020, the Applicant requested a reconsideration of the decision pursuant to s. 45.7 of the Code. The HRTO issued a reconsideration dated July 5, 2020 wherein it found that the Applicant had failed to meet the test for reconsideration and denied the request.
[52] The Applicant now seeks judicial review of the decision dated May 5, 2020.
PART III STANDARD OF REVIEW
[53] The first, and preliminary issue to be decided on the application is the standard of review. The parties agreed that the decision of the HRTO Vice-Chair to stay the application as an abuse of process is to be measured against a reasonableness standard of review.
[54] Administrative decision-making is subject to a presumptive reasonableness standard of review, unless that standard is displaced by legislation or otherwise by the rule of law concerns, including general questions of law of central importance to the legal system as a whole: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 33 –34 and paras. 60-62.
[55] The HRTO has a statutory power to stay an application that it considers to be an abuse of process: Statutory Powers Procedure Act, s. 23(1). As this court noted in Nagy v. University of Ottawa, 2022 ONSC 3399 at para. 13, applying the doctrine of abuse of process engages the HRTO’s power to control its own process. It is context-based and fact-driven and involves the exercise of discretion. Therefore, a decision as to whether to stay proceedings as an abuse of process should be reviewed on a deferential standard.
[56] In the case of the HRTO, its enabling legislation appears to import a higher standard of review for HRTO decisions, “patent unreasonableness” from s. 45.8 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended, s. 45.8, which provides:
The decision of the Tribunal 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. (Emphasis added)
[57] However, the Court of Appeal for Ontario recently considered s. 45.8 and determined that the standard of review for decisions of the HRTO remains the standard of “reasonableness”: See Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458. In that decision the Court of Appeal followed the pre-Vavilov reasoning in Shaw v. Phipps, 2010 ONSC 3884, 325 D.L.R. (4th) 701 (Div. Ct.), aff’d 2012 ONCA 155, 347 D.L.R. (4th) 616, which considered the “practical and theoretical difficulties of distinguishing between patent unreasonableness and reasonableness that were identified in Dunsmuir.”[^1]
[58] While other jurisdictions distinguish between “patent unreasonableness” and “reasonableness”, for example, in British Columbia: See College of New Caledonia v Faculty Association of the College of New Caledonia, 2020 BCSC 384 at paras. 31-33, we follow the decision in the Ontario (Health) case. It also fits with the decision in Vavilov. Briggs v. Durham (Police Services Board) cases.
PART IV – ANALYSIS OF THE ISSUES
[59] Having determined that the standard of review is one of reasonableness, the issue on this application is whether the HRTO Vice-Chair’s decision to stay the proceedings for abuse of process a reasonable decision?
[60] In her factum the Applicant raised five arguments in support of her position that the decision was not unreasonable as follows:
a. The Vice-Chair erred in finding that the application would relitigate a matter.
b. The Vice-Chair erred in finding that the Applicant was forum shopping.
c. The Vice-Chair erred in finding that the Applicant was to blame for the delay.
d. The Vice-Chair improperly failed to consider that the Applicant consistently produced favourable medical evidence.
e. The Vice-Chair erred in finding the respondents would be prejudiced and in failing to consider the potential impact or particularly harsh consequences of a dismissal on the Applicant.
[61] In oral argument, the Applicant advanced four arguments in support of her view that the decision was unreasonable, as follows:
a. The cases say that essential justice and fairness must be done between the parties. That principle requires a hearing on the merits at the HRTO.
b. From the point of view of the Respondent Board, the circumstances have not changed since the HRTO denied the Respondent Board’s request to have this matter dismissed for delay.
c. There is no evidence of intentional or contumelious delay on the part of the Applicant. As a result, the HRTO should have heard the matter on the merits.
d. Since 2016, the case law has changed. Although the standard remains reasonableness, the Applicant argues that the principles in Vavilov, supra require more consideration of the circumstances of individual cases by adjudicators. In this case, the HRTO Vice-Chair did not follow those principles, rendering the decision unreasonable.
[62] Our analysis of the argument will follow the four points raised by the Applicant in oral argument. However, we will incorporate all five of the arguments advanced by the Applicant in her factum into our analysis.
Essential Justice and Fairness
[63] The Applicant argues that principles of essential justice and fairness require that this claim proceed to an adjudication on its merits. The Applicant argues that she has a disability and was terminated from her employment. As a result, the Applicant argues that she should be entitled to a determination of her claims on the merits.
[64] The problem with the Applicant’s argument on this point is that it ignores both the HRTO’s conclusion that the Applicant was engaged in an abuse of process and was forum shopping and the underlying facts supporting those conclusions.
[65] We start with the definition of an abuse of process. We accept the Applicant’s submissions that the doctrine of abuse of process is invoked only in the clearest of cases. Waterloo (City) v. Wolfraim, 2007 ONCA at para. 3. However, it is important to understand that the doctrine of abuse of process is broader than the principles of res judicata. Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77.
[66] In Canam Enterprises v. Coles, (2000) 2000 8514 (ON CA), 51 O.R. (3d) 481, [2000] O.J. No. 4607 (C.A.), Goudge J.A. set out the following explanation of abuse of process.
[55] The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).
[67] While Goudge J.A. was dissenting, the decision was appealed to the Supreme Court of Canada and this explanation of abuse of process was adopted by the Court when it adopted Goudge J.A.’s reasons in toto. See Canam, 2002 SCC 63.
[68] The doctrine of abuse of process can be invoked even in cases where there is no final decision. Indeed, in Waterloo, supra, the Court noted (at para. 4) that it was “not necessarily an abuse of process” to bring a subsequent action where, inter alia, the specific issue in the subsequent action was not decided by the Court in the earlier action (emphasis added). The corollary of this point is that, in some cases, it can be an abuse of process even where the specific issue has not previously been decided by the Court.
[69] Given the inherently flexible nature of the doctrine of abuse of process it can be used in cases where the specific issue has not finally been decided. As the Court noted in Waterloo, at para. 5:
[5] Overall, the doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedures in a way that would be manifestly unfair to a party in the litigation or would in some way bring the administration of justice into disrepute. This case lacks those attributes.
[70] The HRTO has also grappled with the issue of the application of abuse of process in circumstances where there was a grievance process ongoing. While the Vice-Chair noted that there was no case directly on point, she did reference several cases that dealt with the interaction between grievance arbitration proceedings and HRTO applications. The two most relevant of those decisions are Nash v. Ottawa-Carleton District School Board 2012 HRTO 2299 and Cunningham v. Toronto District School Board, 2018 HRTO 1462.
[71] The Nash decision is particularly instructive. In Nash, the Vice-Chair found (at para. 17) that, although the grievance had been dismissed, no evidence has been called and no one had been cross-examined. The Vice-Chair went on to conclude (at para. 47) that there could be cases where abandonment of a grievance could be an abuse of process, although the case before him was not such a case.
[72] In this case, the facts are very different from Nash. Evidence has been called at the Arbitration, and the Applicant’s family doctor was cross-examined extensively. That cross-examination did not go well for the Applicant’s case. As described at paragraph 24 above the Applicant’s family doctor gave evidence that was unhelpful to her case. The evidence from Dr. Kuprowski, as described before the Vice-Chair, also contradicts the Applicant’s assertion that she consistently provided favourable medical evidence.
[73] The Applicant raises two issues with Dr. Kuprowski’s evidence. First, she argues that the evidence before the HRTO was hearsay, and that there is no real evidence of Dr. Kuprowski’s testimony before the Vice-Chair. There are two responses to this argument:
a. Although the Vice-Chair accepted that the evidence was hearsay, it was not only not contradicted by the Applicant in any meaningful way, but it was supported by both Hanson and Nolan in their testimony. The viva voce testimony of the two counsel is, in these circumstances, arguably the best evidence of what Dr. Kuprowski said, especially since there is no transcript of the arbitration hearing.
b. More importantly, the Vice-Chair was entitled to make factual findings about this testimony and she did so. Those findings are entitled to deference on appeal.
[74] The Applicant’s second argument is that the evidence of a family doctor, even if noteworthy, would not be fatal to the Applicant’s case. Counsel went on to argue that the evidence of Drs. Gurr and Prestegaard could be called at any subsequent HRTO hearing. This argument misses the key point, which is that evidence was called at the Arbitration hearing that was unfavourable to the Applicant. She now seeks to change forums, with the effect that the Respondents will be deprived of that evidence, and the cross-examination they conducted of Dr. Krupowski will be lost to them.
[75] The Vice-Chair’s conclusion that the Applicant was engaged in forum shopping and that she “chose to get a fresh start with the Tribunal” because she “knew the weakness of her case before Arbitrator Keller” is a reasonable conclusion. The reasonableness of that conclusion is supported by the Applicant’s conduct and the delays in this action as well as the other reasons provided by the Vice-Chair.
The HRTO Decision on Delay
[76] Counsel for the Applicant correctly points out that the Respondent Board asked the HRTO to dismiss this matter for delay on March 3rd, 2016 and that this request was denied (2016 HRTO 280). However, that decision stated, inter alia, that it was not clear who bore the blame for the delays in this case. That decision was also made without the benefit of any viva voce evidence, and before the Respondents had filed their response.
[77] The decision under appeal was made after a lengthy hearing. While the underlying facts had not changed between the March 3rd, 2016 decision and the decision under appeal, the HRTO’s knowledge of those facts had changed significantly. The decision of March 3rd, 2016 did not finally dispose of the issues of delay and the responsibility for the delay, especially in the context of an application alleging abuse of process.
Evidence of Intentional or Contumelious Delay?
[78] The Applicant argues that there was no intentional or contumelious delay on her part and that nothing has changed since the first decision of the Tribunal in 2016. This submission misses the point that it is not the delay alone that is the issue. The Arbitrator also concluded that the Applicant was forum shopping and that the Respondents had already been put to a great deal of time and expense in the Arbitration proceeding. It was the combination of these factors that the Vice-Chair relied upon in order to preclude the Applicant from re-litigating these issues at the HRTO.
[79] In her decision, the Vice-Chair reasonably concluded that there were significant delays in the arbitration proceeding that were not caused by the Respondent. Specifically, the Vice-Chair concluded (at para. 156) that “[w]hat followed the November 10, 2009 mediation/arbitration to the end of 2015 was the inability of the OECTA to proceed with the arbitration largely because of the actions of the applicant and Mr. Renaud.”
[80] That conclusion is amply supported by the evidence. In particular, the Arbitrator reasonably concluded that there was no reply by Renaud to the letter of October 19th, 2012 (as described at paras. 31-32. Prior to this delay, it had also taken the Applicant eighteen months to provide OECTA with the medical reports to address the Respondent Board’s accommodation proposal, which was made at the end of 2009. It was reasonable for the Vice-Chair to conclude that these delays were largely the responsibility of the Applicant.
[81] The Applicant argues that there is no evidence of any actual prejudice to the Respondents by the delays in this case, other than the passage of time. Again, this argument misses a critical point, which is that (as described at paragraph 72) the Respondents would lose the benefit to their case of the cross-examination of Dr. Krupowski. That would be a significant prejudice to their case. The Vice-Chair also reasonably identified the other financial and procedural prejudices that would accrue to the Respondents if this case was allowed to proceed.
[82] We conclude that the Vice-Chair’s findings of fact and her conclusions that the HRTO application should be dismissed as an abuse of process were reasonable.
Did the Vice-Chair Fail to Properly Apply Vavilov?
[83] The Applicant argues that the Vice-Chair did not properly consider her responsibilities given the significance of the case to the Applicant. In support of this argument, counsel points to paragraphs 133 to 135 of Vavilov, supra. Those paragraphs state:
[133] It is well established that individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm: Baker, at para. 25. However, this principle also has implications for how a court conducts reasonableness review. Central to the necessity of adequate justification is the perspective of the individual or party over whom authority is being exercised. Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood.
[134] Moreover, concerns regarding arbitrariness will generally be more acute in cases where the consequences of the decision for the affected party are particularly severe or harsh, and a failure to grapple with such consequences may well be unreasonable. For example, this Court has held that the Immigration Appeal Division should, when exercising its equitable jurisdiction to stay a removal order under the Immigration and Refugee Protection Act, consider the potential foreign hardship a deported person would face: Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84.
[135] Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law.
[84] The Applicant argues that the Vice-Chair did not consider the particularly harsh consequences to the Applicant of a dismissal of the Application. Counsel argues that the Vice-Chair did not consider the Applicant’s vulnerability, the disastrous financial and emotional consequences of her decision or that dismissing the application would “leave without recourse for justice a woman who had been harassed, discriminated against, not accommodated and unjustly terminated.”
[85] On this last point, we would note that these are the assertions that the Applicant is making. They are not proven facts in this case. Indeed, this broad statement ignores the fact that the Respondent Board was prepared to reinstate the Applicant and provided her with an accommodation plan back in 2009.
[86] On the larger issue of a Vice-Chair’s responsibility, there are two answers to the Applicant’s argument. First, in paragraph 157, the Vice-Chair states “What happened to the Applicant between 2005 and 2015 is perplexing. I am also sympathetic to the fact that she has been at odds or in litigation with the Board since 2005.” Counsel for the Applicant argues that this statement is not sufficient to support a conclusion that the Vice-Chair considered the effect of this decision on the Applicant. We disagree. This statement shows that the Vice-Chair understood the lengthy and concerning chain of events in this case.
[87] That brings us to the second answer to the Applicant’s argument. Part of the “heightened responsibility” that lies upon adjudicators is to ensure that they have carefully considered the issues raised by an Applicant, especially when the decision has such a significant effect on them. Determining whether an adjudicator has met the obligations that Vavilov places on them is a contextual exercise that requires the Court to consider whether the hearing process was fair, whether there were any limitations placed on the Applicant’s ability to call evidence and whether the adjudicator carefully considered the case before them.
[88] In this case, the detailed evidence put before the Vice-Chair and the corresponding painstaking review of the evidence by the Vice-Chair is evidence of a full hearing, an appreciation of the context of the litigation and a recognition that the Vice-Chair recognized her heightened responsibility to the Applicant. This ground of appeal also fails.
PART VI – CONCLUSION AND COSTS
[89] The application for judicial review is dismissed.
[90] The Respondents have been successful in this Application. The issue of costs was not resolved at the hearing because of the disparity between the bills of costs submitted by Applicant’s counsel and Respondent’s counsel. Counsel are encouraged to agree upon costs.
[91] Failing agreement, the Respondent is to provide costs submissions of no more than two (2) single-spaced pages, exclusive of case-law and offers to settle within seven (7) calendar days of today’s date. The Applicant shall have seven (7) calendar days thereafter to provide her costs submissions, again with the same page limits. All costs submissions shall be uploaded to Caselines.
[92] The HRTO does not seek costs, and no costs are ordered as against the HRTO.
LeMay J.
Doyle J.
Leiper J.
Released: December 8, 2022
CITATION: De Rose v. Windsor-Essex Catholic Regional School Board, 2022 ONSC 6909
DIVISIONAL COURT FILE NO.: DC-405-20
DATE: 20221208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LeMay, Doyle and Leiper JJ.
BETWEEN:
LINDA DE ROSE
Applicant
– and –
WINDSOR-ESSEX CATHOLIC DISTRICT SCHOOL BOARD, JIM MINELLO and the HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
REASONS FOR DECISION
Released: December 8, 2022
[^1]: Recently confirmed, in a decision released by the Court of Appeal between the time of argument and pending the release of these reasons: see, Briggs v. Durham (Police Services Board), 2022 ONCA 823 at paras 36-38