Whearty v. Waypoint Centre for Mental Health Care
CITATION: Whearty v. Waypoint Centre for Mental Health Care, 2024 ONSC 5638
DIVISIONAL COURT FILE NO.: 054/24
DATE: 20241010
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
STEVEN WHEARTY Applicant/Responding Party
– and –
waypoint centre for mental health care Respondent/Responding Party
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO Respondent/Moving Party
COUNSEL:
Paul Michell, for the Applicant/Responding Party
Lesley Campbell, for the Respondent/Responding Party, Waypoint Centre for Mental Health Care
Morgana Kellythorne, for the Respondent/Moving Party, Human Rights Tribunal of Ontario
HEARD at Toronto: September 26, 2024
REASONS FOR DECISION
Davies J.
[1] Mr. Whearty worked as a nurse as Waypoint Centre for Mental Health Care. In December 2017, he went on medical leave. In 2019, he brought a claim before the Human Rights Tribunal alleging that Waypoint discriminated against him based on sex and disability.
[2] Mr. Whearty was initially self-represented but in 2022 he hired Tamara Kronis to represent him before the Tribunal. Ms. Kronis had been the Associate Chair of the Human Rights Tribunal from July 2020 to July 2021.
[3] In December 2023, the Tribunal Member who was assigned to hear Mr. Whearty’s matter issued an interim ruling directing Ms. Kronis to remove herself as counsel for Mr. Whearty. The Member was concerned about the appearance of a conflict because Ms. Kronis was involved in interviewing the Member for her position at the Tribunal. The Member was also concerned about an appearance of a conflict if Ms. Kronis were allowed to act as counsel on a case that started when she was the Associate Chair of the Tribunal.
[4] Mr. Whearty has filed an application for judicial review of the interim decision removing Ms. Kronis as his counsel. The Human Rights Tribunal has brought this motion to strike the judicial review application on the basis that it is premature.[^1]
[5] An application for judicial review will not be struck unless it is “plain and obvious” that the application cannot succeed: Stewart et al. v. Office of the Independent Police Review Director et al., 2014 ONSC 6150, at para. 18.
[6] For the following reasons, I am not satisfied it is plain and obvious Mr. Whearty’s judicial review application will be dismissed as premature.
[7] The parties agree that interim decisions from an administrative tribunal are not ordinarily amenable to judicial review and fragmentation of proceedings should be avoided: College of Veterinarians of Ontario v. Mitelman, 2015 ONSC 484 (Div. Ct.), at para. 5. They also agree that this Court will only decide a judicial review of an interim decision on its merits in exceptional circumstances: CB Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, at paras. 31-32.
[8] The Tribunal argues there are no exceptional circumstances so it is plain and obvious Mr. Whearty’s judicial review application cannot succeed. I disagree. I find there is a reasonable basis on which Mr. Whearty can argue that his case is exceptional and that this Court should decide his judicial review on its merits.
[9] When deciding whether this matter is premature, the court will consider five factors:
a. The hardship to Mr. Whearty if the Tribunal hearing proceeds without the ability to challenge the removal of his counsel;
b. The waste that will result if Mr. Whearty is required wait until the end of the Tribunal hearing to bring his judicial review application;
c. The delay in the Tribunal proceeding if Mr. Whearty is allowed to pursue his judicial review application now;
d. Whether fragmenting the process and the issues will create additional litigation; and
e. The strength of the Mr. Whearty’s judicial review application: Toronto Transit Commission v. Amalgamated Transit Union Loc. 113, 2020 ONSC 2642 (Div. Ct.), at para. 11.
[10] I will start with the strength of Mr. Whearty’s application. It is not my role to engage in a detailed analysis of the merits of Mr. Whearty’s application. Nonetheless, I am satisfied that Mr. Whearty’s application is relatively strong for at least two reasons.
[11] First, there is a good argument that the process below was unfair. The Member raised the conflict issue herself and sought submissions from counsel. The parties submitted a joint letter in which they took the position that there was no basis to disqualify Ms. Kronis from acting as Mr. Whearty’s counsel. The Member did not tell the parties she was inclined to reject their joint position or seek further submissions on the conflict issue or the appropriate remedy if a conflict existed. Rather, the Member simply ordered Ms. Kronis to remove herself as counsel for Mr. Whearty.
[12] Second, there is a good argument that either the Member’s findings or the remedy she imposed are unreasonable. The Member did not find that Ms. Kronis was in an actual conflict in relation to her representation of Mr. Whearty. Rather, the Member found that there would be an appearance of conflict if Ms. Kronis appeared for Mr. Whearty before the Tribunal because Mr. Whearty’s matter started when Ms. Kronis was the Associate Chair. However, Ms. Kronis was not involved in his matter when she was the Associate Chair. Nor was she even aware of his case.
[13] The Member also found there would be an appearance of conflict if Ms. Kronis appeared for Mr. Whearty because she participated in the Member’s recruitment. The evidence establishes that Ms. Kronis did not recruit or appoint the Member. Ms. Kronis was part of a panel that conducted interviews and made recommendations to government about potential candidates. Ms. Kronis also complied with the Code of Conduct, which prohibits a member of a Tribunal from appearing before that Tribunal for 12 months after their term ends. It is arguable that the Member’s conclusion that there would be something improper about Ms. Kronis appearing on this matter is unreasonable. And even if the Member’s finding that there was an appearance of conflict is reasonable, it is arguable that it was the Member, not Ms. Kronis, who had a conflict and the appropriate remedy would have been for the Member to recuse herself.
[14] I am not saying Mr. Whearty is certain to win his judicial review application. The Member’s decision will be entitled to deference on review and may well be found to be reasonable. What I am saying is that it is not inevitable that Mr. Whearty’s judicial review application will be dismissed as premature because (a) it has merit and (b) he may be able to establish there are exceptional circumstances.
[15] There are at least three grounds which, taken together, could convince the panel there are exceptional circumstances to justify departing from the general rule against fragmenting judicial review applications. First, there is a valid argument that requiring Mr. Whearty to proceed to a hearing without his counsel of choice would result in real unfairness: Mitelman, at para. 7. I appreciate that the Member did not disqualify Ms. Kronis’s firm from acting for Mr. Whearty. She only disqualified Ms. Kronis. That does not, however, address the harm of being denied counsel of choice and being forced to retain new counsel for the hearing.
[16] Second, the Member’s decision could have implications beyond this case. In her reasons, the Member wrote, “I note that this decision will be relevant to whether Ms. Kronis should continue to act as counsel in her other cases with the Tribunal.” The Member urged Ms. Kronis to “review her role in any case that was open while she was [the Associate Chair], and/or in which the adjudicator was someone in whose recruitment she was involved.” If other Tribunal Members follow the interim decision in this case, it could create similar issues in other cases before the Tribunal and give rise to multiple judicial review applications. Resolving this issue now in the context of Mr. Whearty’s case could save significant court resources in other cases.
[17] Third, this judicial review application raises a discrete issue that is completely unrelated to the merits of Mr. Whearty’s application before the Tribunal.
[18] Balancing all the factors, I am not satisfied that it is “plain and obvious” Mr. Whearty’s judicial review application will be dismissed as premature. It will, of course, be for the panel to finally decide whether this application is premature or whether there are exceptional circumstances that justify deciding it on its merits even though it relates to an interim decision of the Board.
[19] The motion to strike is, therefore, dismissed.
[20] I appreciate that allowing this judicial review to proceed could delay the proceedings before the Tribunal. However, I am prepared to set an expedited schedule for the exchange of materials and the hearing of Mr. Whearty’s application to minimize the delay. Within 7 days of the release of this decision, the parties shall submit a joint proposed timetable for the exchange of materials on this judicial review application.
[21] No parties sought costs on this motion and, as a result, no costs are ordered.
Davies J.
Released: October 10, 2024
CITATION: Whearty v. Waypoint Centre for Mental Health Care, 2024 ONSC 5638
DIVISIONAL COURT FILE NO.: 054/24
DATE: 20241010
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
STEVEN WHEARTY Applicant/Responding Party
– and –
waypoint centre for mental health care Respondent/Responding Party
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO Respondent/Moving Party
REASONS FOR DECISION
Davies J.
Released: October 10, 2024
[^1]: Waypoint Centre for Mental Health did not file any materials or take a position on this motion.