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Human Rights (Ont) - Summary Dismissal. London District Catholic School Board v. Weilgosh
In London District Catholic School Board v. Weilgosh (Div Court, 2024) the Divisional Court considered a JR by a school board against an HRTO interim decision that it had 'concurrent jurisdiction' to hear an HRC-labour matter which had been filed both before the HRTO and the OLRB. This is a furthering of recent convoluted Horrocks (SCC, 2021) doctrine addressing this same issue, setting out a test for exclusive versus concurrent jurisdiction.
Here the court cites various HRC and HRTO Rule provisions bearing on the summary dismissal (or deferral) jurisdiction of the HRTO:Ontario Code Legislative Framework
[37] The deferral and dismissal powers in the case of the Ontario Code, are in ss. 45 and 45.1:45. The Tribunal may defer an application in accordance with the Tribunal rules.
45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application. [38] The applicable Tribunal rules are:Rule 14:
14.1 The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party.
14.2 Where the Tribunal intends to defer consideration of an Application under Rule 14.1, it will first give the parties, any identified trade union or occupational or professional organization and any identified affected persons, notice of its intention to consider deferral of the Application and an opportunity to make submissions. ...
14.3 Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any. [Emphasis added] In addition, Rule 8.2.1, which relates to a response to an application, provides:Where a Respondent alleges the issues in dispute are the subject of an ongoing grievance or arbitration brought pursuant to a collective agreement, the Respondent need not respond to the allegations in the Application but must provide its contact information, attach a copy of the document which commenced the grievance, confirm that the grievance or arbitration is ongoing and include argument in support of its position that the Application should be deferred pending the conclusion of the grievance or arbitration. The Tribunal may direct a Respondent to file a complete Response where the Tribunal considers it appropriate. [emphasis added] Finally, Rule 11 deals with requests to intervene in HRTO applications and sets out specific subrules to address interventions by bargaining agents:11.14 The bargaining agent for an applicant who has filed an Application about his or her employment may intervene in the Application by filing a Notice of Intervention by Bargaining Agent in Form 28.
11.15 A request to remove a bargaining agent as an intervenor shall be made as a Request for Order During Proceedings in accordance with Rule 19. . Wu v. City of Toronto and Toronto Ombudsman
In Wu v. City of Toronto and Toronto Ombudsman (Div Court, 2023) the Divisional Court considers (and dismisses) two merged JR applications against several 'summary dismissal' HRTO decisions. These quotes are illustrative of these summary dismissal procedures, which I have been critical of (see Tice below):[11] On February 28, 2022, the HRTO Adjudicator who conducted the summary hearing dismissed Wu’s complaints as having no reasonable prospect of success. In that decision to dismiss the complaints, the Adjudicator explained the test for finding a reasonable prospect of success, which involves accepting the complainant’s version of events absent clear contradictory evidence. The Adjudicator concluded that, even when Wu’s version of events was accepted and taken at its highest, the evidence put forward by him in support of his complaints did not meet that test.
[12] The Adjudicator considered that Wu’s suspicions of discrimination and unfairness were more likely the product of his dissatisfaction with the answers he was given to his questions about the by-law and its effect on his property. There was no link established between the allegedly offensive treatment and any grounds of discrimination prohibited by the Code. In coming to that conclusion the Adjudicator observed that, although discrimination often may not be overt, Wu had not pointed to any other information that would warrant the scheduling of a full hearing on the merits of his complaints. His assertion at the hearing that a “white zoning consultant” was treated differently was not of a nature that would serve to alter that conclusion.
[13] In making the decision that Wu’s complaints had no reasonable chance of success, the Adjudicator noted the following:15. The applicant was not able to point to anything beyond his own sincere belief as evidence that he was subject to discrimination by the respondents. The denial of service of which the applicant speaks, appears to be related to the applicant’s dissatisfaction with the answers provided to his questions. The applicant did not show differential treatment on the basis of the Code grounds alleged. The documents filed by the applicant included many email exchanges that show it would be more apt to characterize the communication between the parties as ending after a certain point.
16. Along with his Application, the applicant filed dozens of documents including many email exchanges he had over the years with the city’s planning office, with Paul Zuliani, the director of that office, and with the Ombudsman Toronto. The documents filed by the applicant, along with the Ontario Municipal Board decision of December 4, 2014 and Ombudsman Toronto report of March 12, 2019, indicate that the applicant has been pursuing this matter for several years, and that he was provided service by the respondents, however frustrating and unsatisfactory this service was to the applicant. These documents show that the respondents engaged with the applicant over several years. These documents also show that the applicant’s communication was not hindered by the fact that English is not his first language. The documents show few grammatical errors, and that the applicant was able to articulate his concerns clearly. The Ombudsman completed a thorough investigation following the applicant’s complaint regarding the city’s services.
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19. As noted above, for an Application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond his or her own suspicions, that could make out a link to the Code. I empathize with the applicant, and appreciate how the changes to the zoning by-laws had a disproportionate and seemingly unfair impact on his business. However, the Code does not provide protection against general allegations of unfairness, or bad treatment. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311 (CanLII). [14] Wu sought reconsideration of this decision. On April 29, 2022 the Adjudicator dismissed Wu’s request for reconsideration. In doing so, the Adjudicator provided reasons that set out the context for reconsideration and underscored the discretionary nature and exceptional grounds that should exist before the granting of such a request. The Adjudicator found that Wu simply was attempting to re-argue the case and had not identified how the decision sought to be considered conflicted with established HRTO jurisprudence or otherwise fit within the stated grounds for reconsideration.
[15] On October 18, 2021 and February 22, 2022 Wu filed additional complaints with the HRTO. These complaints contained allegations similar to those made in his previous complaints, but were directed this time at the City of Toronto Integrity Commissioner and City Councillor Nick Mantas, alleging that they had discriminated against him on the basis of race and place of origin contrary to s. 1 of the Code in relation to their lack of a satisfactory response to his communications with them about the zoning by-law and how it affected his property in what he viewed to be an unfair way.
[16] The HRTO provided Wu with Notices of Intent to Dismiss these additional complaints on the grounds that they fell outside the jurisdiction of the HRTO. The HRTO proceeded with a summary hearing in writing of that issue of jurisdiction as permitted under its procedures (see: Iyirhiaro v. HRTO and TTC, 2012 ONSC 3015). The Respondents to Wu’s complaints did not participate in this hearing.
[17] After reviewing and considering Wu’s written submission, on July 26, 2022, the Adjudicator found that there was no factual basis to link the alleged adverse treatment by the Integrity Commissioner and Councillor Mantas complained of by Wu to any grounds of discrimination prohibited by the Code. Accordingly, the Adjudicator dismissed the complaints. . Tice v. The Human Rights Tribunal of Ontario
In Tice v. The Human Rights Tribunal of Ontario (Div Court, 2023) the Divisional Court illustrates 'the HRTO is too keen to dismiss' theme that I have been harping on [see Human Rights (Ontario) Legal Guide, Ch.12: 'Summary and Related Procedures', esp. s.2. 'Summary Dismissal Hearings'], here supported by the court:[5] On its own initiative and in accordance with its rules, the HRTO ordered a combined summary and preliminary hearing to determine whether some or all of the application should be dismissed on two grounds: 1) whether there was no reasonable prospect all or part of the application would succeed; and 2) whether all or part of the application should be dismissed for delay.
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[7] Following a hearing and a review of the amended application submitted on February 25, 2022, on July 25, 2022 the Tribunal dismissed the application on the basis that the application had no reasonable prospect of success: Tice v. Peggy and Andrew Brewin Housing Co-operative and Rose Schwartz, 2022 HRTO 927. In the decision, Adjudicator Mason wrote at para. 18:Based on the submissions from the applicant, she did not point to any evidence in her possession or available to her that could show she was discriminated against based on her disability. The applicant submitted that she required a one-bedroom apartment so as to qualify for subsidies. I understand this was a pressing need for the applicant, but this is not covered under the Code. The Tribunal does not address issues of general unfairness. ....
[10] The duty of procedural fairness in administrative law is variable and context specific. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances: Canada (Minister of Citizenship and Immigration) v. Vaviloy, 2019 SCC 65, at para 77. Procedural fairness is rooted in the right to be heard, and the principle that an individual affected by a decision should have the opportunity to present their case fully and fairly: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) at para 28.
[11] However, the content of the duty will vary depending on the circumstances. As the Supreme Court stated in Baker at para. 22:Although the duty of procedural fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected ... the purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker. [12] Consistent with this flexibility, the Code permits the HRTO to use alternatives to traditional adjudication. This Court has also endorsed the HRTO’s power to control its own procedures and how it considers cases in an expeditious and proportional manner: Gill v. Human Rights Tribunal of Ontario et al., 2014 ONSC 1840 at paras. 9-14.
[13] In this case, we see no procedural unfairness in the manner in which the HRTO conducted itself. The choice of proceeding summarily and, at least in part, in writing, is one usually best left to the Tribunal which has expertise in determining what procedures are appropriate having regard to all the circumstances: Baker, at para. 27. We are satisfied that the Applicant’s materials were all before the Adjudicator when she made her decision, including her amended application and the attachments sent to the HRTO on February 25, 2022. The Applicant was afforded an opportunity to be heard through written and oral submissions. Although there is no right to reconsideration, the Applicant’s request for reconsideration was rejected, as noted above. . Mehedi v. Mondalez Bakery
In Mehedi v. Mondalez Bakery (Div Court, 2023) the Divisional Court considered summary dismissal provisions governing the HRTO, here where the JR applicant objected to their not receiving disclosure before dismissal:[20] The Applicant alleges that the HRTO denied him procedural fairness because the application was dismissed without documentary disclosure from the Respondents and/or a summary hearing or mandatory mediation.
[21] In respect of procedural fairness, the court must determine whether the required level of procedural fairness was accorded: Graham v. New Horizon System Solutions, 2023 ONSC 310 (Div. Ct.). The factors relevant to assessing procedural fairness include: (i) the nature of the decision being made and the process followed in making it; (ii) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (iii) the importance of the decision to the party; and (iv) the choice of procedure selected by the administrative tribunal. A court must give weight to a tribunal’s choice of procedures and institutional constraints. Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 23-28.
[22] Section 41 of the Code grants the HRTO the ability to “adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the HRTO will facilitate fair, just and expeditious resolution of the merits of the matters before it.” The HRTO is not required to hold a summary hearing or mandatory mediation, particularly if it is clear that the complaint is outside its jurisdiction. Rule 13.1 of the HRTO’s Rules provides that the “Tribunal may, on its own initiative or at the request of a Respondent, filed under Rule 19, dismiss part or all of an Application that is outside the jurisdiction of the Tribunal.” It is clear that the HRTO is not required to hold an oral hearing on the issue of jurisdiction: Iyirhiaro v. Human Rights Tribunal of Ontario, 2012 ONSC 3015, at para. 12.
[23] Similarly, mediation pursuant to Rule 15A of the HRTO’s Rules is voluntary and is commenced only at the agreement of both parties. The HRTO was not required to hold a mediation before dismissing the application.
[24] Not only was the HRTO not required to hold a mediation or summary hearing, it acted in accordance with its Rules when it delivered Notices of Intent to Dismiss under Rule 13.2 in May 2020 and January 2022. The Notices of Intent to Dismiss informed the Applicant that he was entitled to provide written submissions. The Applicant availed himself of the opportunity to deliver written submissions in response to both notices. A dismissal under Rule 13 does not involve any documentary disclosure, and instead, is only concerned with whether it is “plain and obvious” on the face of the application that it does not fall within the HRTO’s jurisdiction.
[25] The Applicant’s claim that he was denied procedural fairness because he did not receive submissions from the Respondents is without basis because respondents do not make submissions under a Rule 13 dismissal initiated by the HRTO: Rule 13.2. Furthermore, the Applicant’s claim that the Respondents brought a motion to dismiss the Application, and that he was not notified of same, is incorrect. The Respondents did not participate in the proceedings before the HRTO. The HRTO dismissed the Application on its own initiative, after receiving submissions from the Applicant.
[26] The Applicant appears to suggest that the HRTO’s decision not to hold a summary hearing discloses a closed mind or reasonable apprehension of bias on behalf of the Vice-Chair. There was, however, no requirement that the HRTO hold a summary hearing. This allegation, without more, is not a sufficient basis to find a reasonable apprehension of bias. . Papouchine v. Touram LP d.b.a. Air Canada Vacations
In Papouchine v. Touram LP d.b.a. Air Canada Vacations (Div Court, 2022) the Divisional Court considered the summary dismisal of an HRTO applicant's complaint under the HRTO rules (advanced by the applicant as a disclosure issue):[38] The substance of the Applicant’s argument on this issue is that he was entitled to disclosure from respondents respecting his complaints prior to the summary hearing before the Tribunal. This is not a “right to hear the other side” but rather a question of disclosure. The extent to which procedural fairness requires disclosure varies, depending on the context of the administrative process. However, this court need not enter into a detailed inquiry of that issue in this case. The Tribunal invoked its process to review the Applicant’s complaints prior to disclosure, a process well established before the Tribunal and analogous to procedures in civil courts pursuant to which claims may be considered for dismissal early in the process [see, for example, Rules of Civil Procedure, R.2.1 (frivolous and vexatious proceedings), R.21 (questions of law) and R.25.11 (improper pleadings)]. One of the goals of these Rules is to dispose of claims that are, on their face, doomed to fail, without first requiring the parties to engage in documentary or oral discovery.
[39] The Tribunal’s Rule 19A provides that the Tribunal may dismiss a complaint at a preliminary stage where the complaint, as pleaded, does not provide a basis for a finding of discrimination under the Human Rights Code. Pursuant to that process, the Applicant was not entitled to production of documents from respondents prior to adjudication of the issues at the summary hearing, unless the Tribunal directed otherwise.
[40] The Applicant argues that the process followed is inconsistent with the Tribunal’s reasoning in Dabic v. Windsor Police Service. I quote at length from Adjudicator Wright’s reasons in Dabic, because they provide such an excellent summary of the Tribunal’s general approach to these issues:Summary Hearings
Rule 19A deals with Summary Hearings. It came into effect on July 1, 2010, and reads as follows:19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
19A.3 When a party requests that an Application be dismissed pursuant to this Rule, it shall deliver to the other parties and file with the Tribunal a Request for Summary Hearing (Form 26), which includes full argument in support of the Request that the Application be dismissed. The party making the Request shall also deliver to the other parties a copy of the Practice Direction: Summary Hearing Requests.
19A.4 A party may respond to the Request for Summary Hearing by completing Form 11, delivering a copy to all parties and filing it with the Tribunal not later than 14 days after the Request for Summary Hearing was delivered.
19A.5 Upon review of the Request and any Response to the Request, the Tribunal will determine whether to hold a summary hearing on the question of whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application will succeed. The Tribunal need not give reasons for a decision to hold or not to hold a summary hearing following a party’s request.
19A.6 Where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons. The issue before me in determining this Summary Hearing is whether the Application has “a reasonable prospect of success” within the meaning of Rule 19A.1. The Tribunal’s jurisprudence on this question will develop as the standard is applied to different factual situations, and I believe it is not appropriate, at least at this early stage in the application of Rule 19A, to set out a definitive test or standard about the meaning of this phrase. I do make some initial observations about the type of inquiry that may be involved in a summary hearing.
A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.[18] [41] As reflected in the decision in Dabic, the timing and process followed in respect to a summary hearing may be tailored to the circumstances of the case. Rule 19A.2 is permissive: “The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.” In Dabic, the Tribunal required the respondent to respond to the complaint and to provide initial disclosure. In the case at bar, the Board tailored its directions to the history of each complaint then outstanding. It declined to order production from respondents prior to the summary hearing, without prejudice to the Board presiding at the summary hearing from making such disclosure directions as she considered appropriate.
[42] Notwithstanding this clear pre-hearing direction from the Tribunal, the Applicant was unreasonably persistent in demanding disclosure prior to the summary hearing. His argument was that the motives of the respondents could not be determined without full disclosure of those motives and included in his disclosure requests were escalating claims about the relationship between the “Royal Family” and Audi, and his premise that he would have been treated better if he was a “noble”.
[43] At the hearing the Tribunal decided to inquire into the merits of the Applicant’s complaints prior to deciding whether to order disclosure – which, in effect, denied the Applicant’s request for disclosure prior to a decision on the merits. This was reasonable. This case was not like Dabic and the Tribunal reasonably concluded that respondents should not be put to the time, trouble and expense to respond to the claims or to provide disclosure until the summary hearing had been decided: the purpose of the summary hearing was to decide whether the complaint had sufficient possible merit to justify putting respondents to the time, trouble and expense of litigating the claims beyond the summary hearing.
[44] In Dabic, police arrested the complainant and delivered him to a hospital for psychiatric evaluation, in the context of complaints arising from domestic disputes. The conduct of the respondents in Dabic had an impact on Mr Dabic’s basic civil rights. The basis of the police conduct was, overtly, based on a protected ground under the Code (physical and/or mental disability). In the case at bar, Mr Papouchine imagines that members of the “Royal Family” would be treated more courteously than he was treated by the respondents. He imagines that one reason he was treated discourteously is his heritage as a person from eastern Europe – and the only basis offered for this allegation is that Mr Papouchine cannot imagine any other explanation. In respect to three of the complaints, they are based upon conduct of persons adverse in interest to him in conflict resolution processes (two in court proceedings and one before the Tribunal). Given the very different factual underpinnings, it was reasonable for the Tribunal to require some disclosure from police in Dabic to assess whether the complaint should be disposed of summarily, while the Tribunal did not require a response or any disclosure in respect to Mr Papouchine’s complaints. Distinguishing between Dabic and Mr Papouchine’s complaints was a reasonable exercise of the Tribunal’s discretion under Rule 19A.2 and affords no basis for this court to find procedural unfairness.
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