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Administrative - Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (ATAGAA). Whearty v. Ontario (Human Rights Tribunal)
In Whearty v. Ontario (Human Rights Tribunal) (Ont Divisional Ct, 2025) the Divisional Court allowed a JR, here from HRTO administrative decisions that disqualified the applicant's counsel (who was "the HRTO’s former Associate Chair"), from appearing on his behalf.SS Note: There is no reference to SPPA s.23(3) 'Exclusion of representatives' which reads:(3) A tribunal may exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing on behalf of a party or as an adviser to a witness if it finds that such person is not competent properly to represent or to advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser. .............
Here the court considers the law of a tribunal member's conflict of interest, a member's bias, and related provisions of ATAGAA - on these case facts:[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 CanLII 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. . Landa v. The Dominion of Canada General Insurance Company
In Landa v. The Dominion of Canada General Insurance Company (Div Court, 2024) the Divisional Court cites the LAT's 'Code of Conduct', recusing member's from determining cases involving "any matter involving a firm where they worked immediately prior to that appointment":[96] Ms. Landa alleged reasonable apprehension of bias. She did so on the basis that the LAT member who conducted two case conferences was previously affiliated with the law firm representing Dominion and on the basis that the LAT decisions were reconsidered by the same member who made the original decisions.
[97] There is a strong presumption that an administrative decision maker is impartial. The burden is on the party alleging bias and the grounds for making the allegation must be “substantial” (Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259).
[98] According to LAT’s Code of Conduct, during the first two years of their appointment, members must not determine any matter involving a firm where they worked immediately prior to that appointment. The LAT member who conducted the case conferences in question was appointed to the LAT on January 24, 2018. The case conferences were conducted on April 6, 2020 and May 4, 2020 – more than two years after her appointment. Furthermore, she did not determine any substantive issues at the case conferences. In view of this, Ms. Landa has failed to meet her burden of establishing a reasonable apprehension of bias against the member who presided over the case conferences.
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