CITATION: Whearty v. Ontario (Human Rights Tribunal), 2025 ONSC 932

DIVISIONAL COURT FILE NO. Series: 54/24

DATE: 20250212

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Matheson and O’Brien JJ.

BETWEEN:

Steven Whearty Applicant

– and –

Waypoint Centre for Mental Health Care and Human Rights Tribunal of Ontario Respondents

COUNSEL:

Paul Michell and Sujit Choudry, for the Applicant

Lesley Campbell, for the Respondent, Waypoint Centre for Mental Health Care Morgana Kellythorne, for the Respondent, Human Rights Tribunal of Ontario

HEARD at Toronto: January 27, 2025

Overview

[1] This judicial review application concerns the limits of a person’s right to select their own counsel.

[2] The Applicant, Steven Whearty, brought an application to the Human Rights Tribunal of Ontario (“HRTO” or “Tribunal”) against the Respondent, Waypoint Centre for Mental Health Care, alleging discrimination. He retained the HRTO’s former Associate Chair, Tamara Kronis, as his counsel. By the time he retained Ms. Kronis, she had been gone from the HRTO for a year. His file with the HRTO was opened while Ms. Kronis was at the HRTO, although there is no suggestion that Ms. Kronis had anything to do with the file or that the HRTO did anything of substance with respect to the file before Ms. Kronis left the HRTO.

[3] The HRTO has conflict rules, which require that a former member (including the Associate Chair) not appear before the Tribunal for 12 months after they leave the Tribunal.

[4] HRTO member Lavinia Inbar (the “Member”) became seized of the case. She was appointed to the HRTO after Ms. Kronis had left, but she was interviewed for her position while Ms. Kronis was Associate Chair.

[5] The Member directed the parties to make submissions on whether Ms. Kronis should be permitted to appear on the matter and whether the Member hearing the matter gave rise to a reasonable apprehension of bias. The parties made a joint submission that Ms. Kronis appearing on the matter did not raise a conflict-of-interest concern, but in view of the Member’s expressed concern about possible bias, they requested that the Member reassign the matter to an adjudicator who joined the HRTO after Ms. Kronis left and whose appointment was in no way connected to Ms. Kronis while she was Associate Chair.

[6] On December 20, 2024, the Member issued an Interim Decision disqualifying Ms. Kronis from appearing on behalf of Mr. Whearty. This disqualification was not extended to other lawyers at Ms. Kronis’s firm. The Member also declined to recuse herself from the case.

[7] Mr. Whearty applied to the HRTO for a reconsideration of the Interim Decision. On April 29, 2024, the Member dismissed this request (the “Reconsideration Decision”).

[8] This is an application to judicially review the Interim and the Reconsideration Decision.

[9] For the reasons that follow I would allow the application, set aside the Decisions and refer the matter back to the HRTO for adjudication by another member.

Background

[10] Mr. Whearty filed his application alleging discrimination with the HRTO on December 12, 2019. At that time, Ms. Kronis was the Associate Chair. On July 23, 2021, Ms. Kronis left the HRTO. Mr. Whearty retained Ms. Kronis’s law firm in July 2022 and Ms. Kronis became counsel of record with respect to the application on August 8, 2022.

[11] On March 6, 2023, the Member became seized of the case. Ms. Kronis, in her capacity as Associate Chair, was part of a panel that interviewed the Member and, according to the Member, would have recommended her appointment to the HRTO. However, she was not the decision-maker regarding whether or not the Member would be appointed.

[12] On October 3, 2023, the Member issued a Case Assessment Direction (or “CAD”) directing the parties to deliver submissions on two issues:

(a) Should she permit Ms. Kronis to continue as counsel in view of her previous role at the HRTO, and in view of “the status of this matter while she was Associate Chair”?

(b) Did Ms. Kronis’ role in the Member’s appointment to the HRTO give rise to a reasonable apprehension of bias?

[13] The Case Management Direction then stated:

After the Tribunal reviews the parties’ submissions, the Tribunal will determine the appropriate next steps and issue an interim decision.

[14] On October 19, 2023, counsel for the Respondent Waypoint wrote a letter to the Member in which he outlined the position of both parties. In summary, as noted above, the parties jointly submitted that they saw no reason why Ms. Kronis should be removed as counsel, but they requested that the Member reassign the matter to another adjudicator who was interviewed and hired after Ms. Kronis left the HRTO.

[15] The reasons given for why the parties saw no reason to remove Ms. Kronis as counsel were as follows:

…it is the Respondent’s understanding that pursuant to her obligations under the Statutory Powers and Procedures Act, upon concluding her appointment as Associate Chair, Ms. Kronis was required to observe a one-year waiting period before appearing before the Tribunal. Based on the timing outlined in the Case Assessment Direction, it appears that that one-year waiting period has now passed. Ms. Kronis has also confirmed that, during her time as Associate Chair, she had no involvement with this Application. On a review of correspondence from the Tribunal, the Respondent sees no basis to assert otherwise. In fact, between the filing of this Application and Ms. Kronis’ departure from her role with the Tribunal, the Tribunal made no procedural or factual determinations in this case whatsoever, let alone any determinations which would bring into question Ms. Kronis’ present involvement in these proceedings as a representative. In light of this, the parties see no reason that Ms. Kronis should be required to remove herself from these proceedings.

[16] On the question of reasonable apprehension of bias, the letter from the parties stated:

…the Tribunal’s decision - on its own initiative - to issue this Case Assessment Direction and to raise questions regarding a potential reasonable apprehension of bias gives both parties reason for concern regarding the fairness of these proceedings going forward. While neither party is aware of specific facts which would give rise to a reasonable apprehension of bias in this case, the Tribunal has identified its own concerns with having an adjudicator who was interviewed by or hired by Ms. Kronis determine this matter. While the test for establishing a reasonable apprehension of bias is certainly a high one, it ultimately requires the adjudicator to assess whether the circumstances give rise to such an apprehension. In the instant case, the Tribunal’s decision to raise this question, at this juncture, suggests that the Tribunal itself is concerned about legitimate or perceived bias that may affect these proceedings.

Given the serious issues in dispute in this case, including a constitutional question regarding the application of subsection 34(1) of the Code, it is of fundamental importance that the Tribunal both ensure that this matter is adjudicated fairly and that it be seen to have been adjudicated fairly. There is a high likelihood that the Tribunal’s determinations in this case – and in particular its determinations regarding the constitutionality of the Human Rights Code – will attract judicial scrutiny. It is important to ensure, as best as possible, that that scrutiny is focussed on the facts and law that are central to these proceedings, and not on whether an adjudicator’s decision was influenced, positively or negatively, by their prior association with counsel. While an absence of bias is necessary in every adjudicative proceeding, it is especially so in a case such as this one where the Code and the Tribunal’s procedural application of the Code will be scrutinized.

For these reasons, the parties jointly request that the Tribunal reassign this matter to an adjudicator whose appointment to the Tribunal commenced after July 4, 2021, and whose appointment was in no way connected to or influenced by Ms. Kronis during her term as Associate Chair. …

Interim Decision

[17] The Member released her Interim Decision without any intervening steps. She begins her assessment by noting that while, as Associate Chair, Ms. Kronis “would not have had any sway or influence on a Vice-Chair or Member assigned to a case, her key duties included day-to-day operational oversight of the Tribunal and leadership and day-to-day oversight of Vice-Chairs and Members”.

[18] After acknowledging the position of both parties with respect to the bias issue and noting their request that the Tribunal assign the matter to another adjudicator, the Member states:

While this position implies that an objective observer may have a reasonable apprehension of bias with respect to the adjudicator, the reasonable apprehension of bias must necessarily run both ways as between the adjudicator and Ms. Kronis. It is because of the presence of Ms. Kronis as counsel for a party in this matter that the issue arises not only for this matter but for many other matters before this Tribunal.

Since the issuance of the CAD, it has come to my attention that Ms. Kronis is also currently counsel with respect to several other Applications before this Tribunal.

[19] On the issue of whether there was a conflict-of-interest concern, the Member found that, while the twelve month “cooling off” period imposed by the Conflict-of-Interest Rules and Tribunals Ontario Code of Conduct might suffice for a simple adjudicator, it was not sufficient for Ms. Kronis. As put by the Member:

Given Ms. Kronis’s former role—a very prominent and public role—as the Associate Chair (the head) of the Tribunal, there are other considerations. An objective observer may find that for the former head of a Tribunal to appear before an adjudicator she was involved in recruiting, on a case that had commenced while she was still responsible for all of the Tribunal’s matters, would give rise to the appearance of a conflict of interest and could bring the administration of justice into disrepute.

[20] For this reason, the Member directed Ms. Kronis to remove herself as counsel for the Applicant. She also “note[d]” that her decision could be “relevant to whether Ms. Kronis should continue to act as counsel in her other cases”. Therefore, the Member commented that Ms. Kronis might wish to review those cases to see if any of them were opened during her tenure as Associate Chair and/or if she was involved in the recruitment of the adjudicator assigned to any of those cases.

[21] The Member found that the disqualification she imposed on Ms. Kronis did not apply to the other members of her firm as there was no confidential information that Ms. Kronis could have shared with the other members of her firm that would necessitate their disqualification.

[22] On the issue of bias, the Member found that “there would be a reasonable apprehension of bias if Ms. Kronis were to appear before me at this time. However, if she were not before me, there would be no basis for finding that there is a reasonable apprehension of bias in regard to my role as the adjudicator in this Application. Accordingly, I decline to recuse myself.”

[23] On the issue of the parties’ request that she recuse herself and direct that the Tribunal appoint the case to another adjudicator who was appointed after Ms. Kronis left the Tribunal and, in whose appointment, Ms. Kronis had no involvement, the Member commented that for various reasons it was impossible to identify how many adjudicators this restriction would impact. Therefore, “[t]he proposed restriction would not allow reasonable flexibility for the Tribunal to assign an adjudicator to this matter and may result in delay to Ms. Kronis’s client beyond the delay that might be caused by a change in counsel.” The Member further noted that, while not determinative, this concern was exacerbated by the fact that it might apply to the other cases in which Ms. Kronis was counsel. This would impact on the Tribunal’s ability to manage its scarce resources and on its ability to fulfill its mandate of providing for the just and expeditious resolution of disputes. The Member noted that this, in turn, would negatively impact the integrity of the administration of justice.

The Reconsideration Decision

[24] The Member found that her decision was an interim decision and did not dispose of central issues in the application. Therefore, the reconsideration process was not available to the parties with respect to the merits of the decision.

[25] The Member then went on to deal with the submission by Mr. Whearty that the Interim Decision breached his rights to procedural fairness for three reasons. First, the Member did not raise her concerns regarding conflict or bias until eight months after she had been assigned to the case. Second, the Member relied on seventeen cases in her decision that were not put before her by the parties without giving the parties the opportunity to comment on those cases. Third, the Member determined that Ms. Kronis could not represent other applicants without giving those other applicants prior notice to them about the conflict issue.

[26] The Member found that “issues of conflict/reasonable apprehension of bias, do not expire because of ‘untimeliness’….”

[27] With respect to the Member’s reliance on authorities that the parties had no opportunity to address, the Member found that, since the parties had notice of the essential issues under consideration, this was not a breach of procedural fairness.

[28] With respect to the third alleged breach of procedural fairness, the Member found that “[t]the scope of the Interim Decision is limited to findings and directions regarding this Application only, and as such, notice to other applicants was not required.”

[29] In the Reconsideration Decision, the Member also considered Mr. Whearty’s submission that the Member misunderstood the role that Ms. Kronis actually played as Associate Chair in the interview and recommendation process for tribunal members and Vice-Chairs. In support of this submission, Ms. Kronis filed a statutory declaration describing that role. It stated that the Tribunal receives approximately 3,900 applications annually and confirmed that Ms. Kronis was unaware of Mr. Whearty’s application while she was Associate Chair. Ms. Kronis also stated that she did not actively recruit any members to the Tribunal. She had no recollection of the Member’s application, but she did not deny interacting with her during the interview process. She also explained the statutory regime that governed appointments and her limited role, which did not include the power to appoint members.

[30] The Member found that this was the kind of information that could have and should have been put before her after she issued her direction asking for submissions. It was inappropriate to do so at the reconsideration stage. In any event, the Member found that the information would not have affected her decision, which “was based on the Tribunal documentation describing the organizational role of the AC.”

Issues Raised

[31] This application raises two issues:

(1) Was the Interim Decision reasonable?

(2) Was the Interim Decision procedurally unfair?

Standard of Review

[32] Both parties agree that, with respect to the merits of the decisions, the applicable standard of review is reasonableness and that, with respect to procedural fairness, the only question is whether the decision was arrived at in a manner that breached procedural fairness.

Analysis

[33] The Respondent, Waypoint, appeared before us, but made no submissions on the issues raised. The HRTO appeared as a friend of the court to ensure that we had arguments that spoke to both sides of the issues.

[34] In August of 2024, the HRTO moved to dismiss Mr. Whearty’s application for judicial review on the basis of prematurity. Further, the HRTO did not pursue its prematurity argument given the outcome of its prior motion to quash. If it had, we would have exercised our discretion to hear the application.

Reasonableness Review

[35] The test for whether a decision by an administrative decision maker is reasonable was set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.

[36] Reasonableness is a standard that respects the role of administrative decision-makers, which demands judicial restraint. According to Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, 161 O.R. (3d) 561, at para. 82, the following principles from Vavilov should be kept in mind when applying the reasonableness standard to HRTO decisions:

• “[R]easonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision makers”: Vavilov, at para. 75.
• Reviewing courts must not apply a standard of perfection when reviewing written reasons: Vavilov, at para. 91.
• The history and context of the proceedings must inform the reviewing court’s reading of the reasons: Vavilov, at para. 94.
• To set aside a decision as unreasonable, “[a]ny alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision.” Instead, they must be “sufficiently central or significant to render the decision unreasonable.” A decision with “sufficiently serious shortcomings” will not “exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov, at para. 100.
• The reasoning must be rational and logical for the decision to be reasonable, but the analysis is not a “line-by-line treasure hunt for error”: Vavilov, at para. 102.
• Reasons should be read in light of the record and administrative regime in which they are given. Read holistically, reasons must reveal a rational chain of analysis to be reasonable. The conclusion must flow from the analysis undertaken and the record: Vavilov, at para. 103.
• Reviewing courts must not reweigh and reassess evidence; absent exceptional circumstances, the reviewing court should not interfere with factual findings of the decision maker: Vavilov, at para. 125.
• A decision maker’s failure to address key issues or central arguments may reflect a potential gap or flaw in the absence of reasons. However, decision makers need not respond to every argument or make explicit findings on every element leading to a conclusion. Reviewing courts cannot expect that they will: Vavilov, at para. 126.

[37] Other key principles are that the onus is on the party challenging the decision to demonstrate that it is unreasonable. The starting point for the analysis is the reasons of the decision maker. The question is never what the reviewing court would have done; it is always whether the decision under review is reasonable, both in terms of outcome and its reasoning process: Vavilov, at para. 116.

[38] A decision will be unreasonable if there is a failure of rationality internal to the reasoning process or where the decision is untenable in light of the factual and legal constraints that bear on it: Vavilov, at para. 101.

The Interim Decision is Unreasonable

[39] The Code of Conduct developed under the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, provides the following with respect to a former tribunal member’s appearance before a tribunal to which they had been appointed:

In order to avoid the appearance of favouritism, Members will not appear before any of the tribunals as a party’s representative or expert or technical witness during the term of their appointment. In addition, Members will not appear as a party’s representative or expert or technical witness before any of the tribunals to which they were appointed within 12 months of ceasing to be a Member. [Emphasis added.]

[40] Tribunals Ontario also has Conflict of Interest Rules. They also provide for a 12 month “cooling off” period for Social Justice Tribunals Ontario (“SJTO”) members, at r. 40:

40. A former SJTO Member shall not appear as a representative or an expert or technical witness before an SJTO tribunal of which he or she was a Member for a period of twelve months from the end of his or her appointment or, twelve months after the release of his or her last decision if that is later.

[41] The Code of Conduct does not define “Member”. The Conflict-of-Interest Rules define “SJTO Members” as “the Executive Chair and the Associate Chairs, the Vice-Chairs, and the Members of any of the constituent tribunals of Social Justice Tribunals Ontario.” The HRTO is a constituent tribunal of SJTO.

[42] In the Interim Decision the Member acknowledged that Ms. Kronis had complied with these rules, which applied not only to regular Members, but also to Associate Chairs.

[43] The Interim Decision also correctly sets out the ability of a tribunal to exclude a representative from a hearing to prevent an abuse of process, which includes a representative having a conflict of interest. However, as noted in the Interim Decision, there must be a compelling reason to deprive a party of their representative of choice: McArdle v. St. Joseph’s Health Centre, 2013 HRTO 1241, at para. 19.

[44] As the Member noted in the Interim Decision, there are two competing policy considerations at play in making a decision as to whether to disqualify a counsel from representing a party. The first is a party’s right to their counsel of choice and the need to ensure that they are not deprived of that right without good cause. The second is the need to preserve the integrity of the justice system. The first consideration cannot be allowed to override the second: MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235.

[45] In this case the Member decided that Ms. Kronis’ removal was necessary for two reasons: (1) Mr. Whearty’s application was commenced when Ms. Kronis was the Associate Chair of the HRTO and (2) Ms. Kronis, as the Associate Chair, was involved in the process leading to the Member’s appointment to the Tribunal. This is clear from the following excerpt of the Interim Decision, which for ease of reference is reproduced again below:

Given Ms. Kronis’s former role—a very prominent and public role—as the Associate Chair (the head) of the Tribunal, there are other considerations. An objective observer may find that for the former head of a Tribunal to appear before an adjudicator she was involved in recruiting, on a case that had commenced while she was still responsible for all of the Tribunal’s matters, would give rise to the appearance of a conflict of interest and could bring the administration of justice into disrepute.

[46] According to the Interim Decision, these two reasons were the reasons why the Member concluded that the 12-month cooling off period provided for in the Tribunal’s own rules was not sufficient in Ms. Kronis’ case.

[47] There is a fundamental problem with this reasoning. Ms. Kronis’ role, whatever it was, in the adjudicator’s appointment is not a conflict-of-interest concern; it is a concern that goes to the issue of bias. This is an important distinction because the remedies that flow from each concern are different. If the issue is conflict of interest, this is sufficient to displace a party’s right to counsel of their choice. If the concern is one going to reasonable apprehension of bias, the appropriate remedy is for the adjudicator to recuse themselves. In the Interim Decision the Member conflated the two concerns. This is a fundamental flaw in her reasoning process. The two issues were not conflated in the questions counsel were asked to address in the October 3, 2023, Case Assessment Direction

[48] This conflation would not necessarily have led to an unreasonable outcome if the conflict-of-interest concern was sufficiently serious to deprive Mr. Whearty of his counsel of choice. However, it was not. It is undisputed that, while Mr. Whearty’s application was commenced during Ms. Kronis’ tenure as Associate Chair, the HRTO made no factual or legal determinations regarding his application during that tenure and Ms. Kronis had nothing to do with that application. Given this reality, the fact that Mr. Whearty’s application was filed during Ms. Kronis’ tenure as Associate Chair cannot reasonably be considered a compelling reason to deprive Mr. Whearty of his counsel of choice. Further, the parties had disclosure of Ms. Kronis’ role at the Tribunal and did not object to her role as counsel.

[49] The question then remains whether any involvement Ms. Kronis had in the Member’s hiring raises a concern about reasonable apprehension of bias. On this issue the Member found that it did unless Ms. Kronis was disqualified as Mr. Whearty’s counsel. Therefore, she directed that Ms. Kronis could not act as Mr. Whearty’s counsel. It is unreasonable for an adjudicator to deprive a party of their counsel of choice to solve a bias concern, especially where, as here, there are rules in place that speak to how long a former tribunal member must wait before appearing as counsel in front of the same tribunal. If those rules have been complied with, the appropriate remedy in the face of a bias concern is for the adjudicator to recuse themself.

[50] It is unclear whether Ms. Kronis’ involvement in the Member’s appointment to the Tribunal would raise a concern about reasonable apprehension of bias. However, given the Member’s finding that there was a bias concern if Ms. Kronis remained as Mr. Whearty’s counsel, it would bring the administration of justice into disrepute for the Member not to recuse herself from hearing Mr. Whearty’s matter and for the HRTO not to arrange for another adjudicator to preside over the case.

[51] In the Interim Decision, the Member unreasonably considered two factors that should not have played a part in her reasoning – the fact that Ms. Kronis was also counsel on some other cases before the HRTO and the fact that the HRTO’s ability to control which adjudicators preside over which cases would be impacted if the adjudicator recused herself in this case.

[52] The problem with the first concern is obvious and was one of the bases for the reconsideration request. Each conflict case must be considered on its own facts and the Interim Decision appears to suggest that its reasoning should direct Ms. Kronis’ activities with respect to her other clients, without giving those clients an opportunity to make their own representations on whether they should be deprived of their counsel of choice.

[53] The expressed concern with the impact on the HRTO’s ability to control its own assignment of adjudicators is first largely speculative and second irrelevant. Any recusal for bias has an impact on the ability of a tribunal to assign adjudicators. That is the administrative cost of ensuring access to impartial decision making, which is a fundamental component of a fair justice system.

[54] In my view, there was a failure of rationality internal to the reasoning process in this case. In view of my finding with respect to the reasonableness of the decisions under review, there is no need to deal with the procedural fairness issue.

Conclusion

[55] For these reasons, the application is allowed, the decisions below are set aside and the matter is remitted back to the HRTO for a hearing in front of a different adjudicator. The parties agree that there should be no order as to costs.

Sachs J.

I agree _______________________________

Matheson J.

I agree _______________________________

O’Brien J.

Released: 20250212

CITATION: Whearty v. Ontario (Human Rights Tribunal), 2025 ONSC 932

DIVISIONAL COURT FILE NO.: 54/24

DATE: 20250212

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Matheson and O’Brien JJ.

BETWEEN:

Steven Whearty Applicant

– and –

Waypoint Centre for Mental Health Care and Human Rights Tribunal of Ontario Respondents

REASONS FOR JUDGMENT

Released: 20250212