|
Human Rights (Ont) - Summary Dismissal. T.A. v. Ontario
In T.A. v. Ontario (Div Court, 2024) the Divisional Court dismissed a JR against an HRTO decision that summarily dismissed the applicant's HRC application that argued discrimination based on "denial of the applicants’ access to the COVID-19 vaccine of their choice".
In their argument the JR applicants advanced arguments about HRTO summary dismissals that I have stated for years (see the HRTO Guide) (though with which this court doesn't apparently agree!):[7] The applicants are children who were aged six and nine in April 2022. The litigation guardian is their father. The dispute arose because of the children’s failure to receive the Moderna vaccine in a timely way rather than the Pfizer vaccine during the COVID-19 pandemic.
[8] Pfizer was the first vaccine authorized by Health Canada for use in children aged 6 to 11. The Moderna vaccine was authorized subsequently by Health Canada on March 17, 2022. On March 25, 2022, the OMH permitted Ontario pharmacists to offer children aged 6 to 11 only the Pfizer vaccine, preventing children of those ages from having the same choice of vaccines available to adult patients or older children. There were no options for securing vaccination to children outside the provincial health care system.
[9] A.A. [SS: the litigation guardian], who also has postgraduate training in immunology, determined that the Moderna vaccine was preferable for his children.
....
Was the Summary Hearing Process Procedurally Unfair?
....
[28] Clearly, the Tribunal followed its rules. However, the applicants submit that the systemic practice of the Tribunal is flawed and that the Tribunal violated fundamental principles of procedural fairness in its summary hearing process. They submit that unfairness occurred when:a. the Tribunal initiated the summary hearing process without request by or input from the parties;
b. Tribunal Member Nicols both initiated the process and made the decision following the summary hearing and the reconsideration decision, thus giving rise to an apprehension of bias; and
c. Member Nicols did not refer to, and therefore can be taken to have failed to consider, the affidavit evidence filed by the applicants at the summary hearing. [29] The applicants offered an indictment of the summary dismissal processes used by the Tribunal and pointed to the relatively small number of cases filed with the Tribunal that proceed through to a hearing on the merits. This was submitted as evidence of there being a systemic impediment to vulnerable people who wish to bring forward valid human rights complaints.
[30] This court notes that, prior to the legislative amendments which came into effect in 2008, all complaints of discrimination were made to the Ontario Human Rights Commission and were only allowed to proceed to a tribunal hearing based on the discretion of the Commission itself. Under the current regime, that former gatekeeping function no longer exists, and anyone may make a complaint directly to the Tribunal.
[31] An adjudication on the merits is only one way to bring a complaint to a conclusion, as is the summary hearing process. The rules also provide for various forms of mediated resolution[5].
[32] The use of summary hearings by the Tribunal has received judicial approval. In Gill v. Human Rights Tribunal of Ontario et al., 2014 ONSC 1840, at paras. 10 to12, A.C.J.S.C. Marrocco wrote:
[10] The Tribunal has the power to make rules governing the practices and procedures before it and these rules prevail over those set out in any other Act: see s. 43(1) of the Code. Even if section 43(1) did not exist, it is a well-established principle of administrative law that tribunals are the masters of their own procedure: see, for example, Iwa v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282 at pp. 307, 338.
[11] The Tribunal has in fact made Rules that govern its own procedures and practices, and Rule 19A provides that the Tribunal may hold a Summary Hearing to determine whether an application should be dismissed in whole or in part because there is no reasonable prospect it will succeed.
[12] This Rule is entirely appropriate for the Tribunal or any tribunal for that matter. The Tribunal is attempting to facilitate access to justice. It cannot use filing or other fees as a gatekeeping mechanism. At the same time the Tribunal does not have unlimited resources. Accordingly, one person’s access to the Tribunal can only come at the expense of another’s, unless the Tribunal has a very light case load, which it does not. Rule 19A is a responsible and rational attempt by the Tribunal to prudently use its limited resources to facilitate access for persons bringing applications that might reasonably succeed.
[33] Rule 19A specifically provides that the Tribunal may direct on its own initiative that a summary hearing be held. There is no procedural unfairness in such a direction. Normally, the party making a request for a hearing bears the burden of satisfying the decision-maker of that party’s position to justify the relief requested. It is reasonable that when the Tribunal itself initiates the hearing and identifies areas upon which submissions are required, the party whose allegations support the allegedly discriminatory conduct, in this case, the applicants, bear that burden.
[34] The submission that Member Nicols “double-hatted” as both the initiator of the summary hearing and the hearing officer is not persuasive. It is within the purview of the Tribunal to deploy its staff. Member Nicols was within her authority to review the matter, identify issues of concern, raise them with the parties, and request submissions. She had not made a decision. She was not a prosecutor. It was not “her” case. She afforded the parties the opportunity to make full written and oral submissions.
[35] As to the matter of the same member rendering a decision on the summary hearing and then making the reconsideration decision, the latter was not an appeal of the former. In the request for reconsideration, she was not mandated to adjudicate on the correctness of her previous decision, but rather to apply the factors set out in rule 26.5, to which I have referred. No apprehension of bias resulted.
[36] The applicants allege that the Tribunal practice of forbidding witness testimony and affidavit evidence at summary dismissal hearings lacks procedural fairness in violation of the Statutory Powers Procedure Act (the “SPPA”), s. 10.1 and thwarts the applicants’ ability to meet their burden of resisting summary dismissal by calling relevant evidence.
[37] The Tribunal’s Practice Direction on Summary Hearing Requests speaks of the purpose of and procedure to be followed at the hearing:The summary hearing is used to determine at an early stage whether an application should be dismissed because it has no reasonable prospect of success.
A summary hearing usually considers:. whether, assuming all of the allegations are true, the Application has no 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; and/or
. whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination. [38] Based on the Practice Direction, oral testimony and written affidavit evidence is not required. The Tribunal assumes all allegations to be true, which implies that evidence to prove those allegations is to be provided in due course if the matter proceeds.
[39] No procedural unfairness exists in the restriction on the calling or filing of evidence given the presumption that the factual allegations in the claim are true.
[40] In any event, the concern raised by the applicant is made academic by the fact that member Nicols did allow the filing of the two affidavits as requested, to which she referred in her decision. She is not required to specifically refer to the facts contained in them. It is reasonable to assume that she did not find the affidavit evidence material to the question of whether the application had a reasonable prospect of success. . Yan v. Mohawk College
In Yan v. Mohawk College (Div Court, 2024) the Divisional Court dismissed a JR against a summary HRTO dismissal after issuing a "notice of its intent to dismiss" when they found no discrimination by the College respondent:[2] The applicant applied to the HRTO alleging discrimination by the respondent College in the provision of goods, services and facilities under the Human Rights Code, R.S.O. 1990, c. H.19 (the Code) based on race, ancestry, place of origin and creed, as well as association with a person identified by a listed ground.
....
[6] The HRTO gave notice of its intent to dismiss the application because the narrative did not identify any specific acts of discrimination within the meaning of the Code that were allegedly committed by the respondent College. The application therefore appeared to be outside the HRTO’s jurisdiction. The applicant was given the right to make submissions in response to the notice and did so.
[7] After considering the Applicant’s submissions, the HRTO dismissed the application. The Adjudicator found that it was not at all clear why the applicant perceived that the instructor’s alleged actions were unfair or that they were in any way connected to any of the Code grounds that she relied on to allege discrimination. . Martinez v. Human Rights Tribunal of Ontario
In Martinez v. Human Rights Tribunal of Ontario (Div Court, 2024) the Divisional Court dismissed a JR challenge to an HRTO summary dismissal:[7] On October 13, 2022, the Tribunal dismissed Mr. Martinez’s complaint summarily because it found Mr. Martinez’s complaint did not fall within its jurisdiction. On January 12, 2023, the Tribunal dismissed Mr. Martinez’s request for reconsideration of the decision.
....
ANALYSIS
[12] We find the Tribunal’s decision was reasonable. It was plain and obvious that Mr. Martinez’s complaint did not state a claim that could amount to a violation of the Code even if he proved that everything he claimed was true.
[13] The Code does not prohibit all unequal treatment. To offend s. 1 of the Code, a person must be denied equal treatment with respect to goods, services, or facilities, “because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.” As the Tribunal stated at para. 6, it “does not have jurisdiction over general allegations of unfairness unrelated to the Code.”
[14] It follows that by failing to claim that Mr. Gauthier discriminated against him based on a prohibited ground, Mr. Martinez did not make a claim that could succeed before the Tribunal.
[15] Similarly, Mr. Martinez did not identify any basis to say that Mr. Gauthier’s actions were a reprisal for anything done by Mr. Martinez to claim or enforce his rights under the Code. The adjudicator made no error in finding his claim as written and explained to the Tribunal could not succeed in establishing a breach of the prohibition against reprisals under s. 8 of the Code.
[16] In oral argument, Mr. Martinez submitted the Tribunal exercised its discretion inappropriately to “weed out” his application. To the extent this was a complaint about the Tribunal’s summary process, the Tribunal is entitled to follow the procedure set out in r. 13.2 of its procedural rules for dealing with preliminary jurisdictional issues to resolve complaints. This process allowed Mr. Martinez the opportunity to provide written submissions in which he acknowledged his complaint was not related to a prohibited ground under the Code. There was no procedural unfairness in this approach: Wu v. City of Toronto and Toronto Ombudsman, 2023 ONSC 6192, at paras. 40-41
[17] The decision to dismiss the claim summarily was transparent, intelligible and justified. It was both reasonable and procedurally fair and will not be set aside.
|
