In Leitch v. Human Rights Tribunal of Ontario, 2024 ONSC 7128, the Ontario Divisional Court upheld a decision of the Human Rights Tribunal of Ontario (the “HRTO”) declaring the applicant to be a vexatious litigant. In reaching this conclusion, the Divisional Court commented on the impact of unauthorized recordings of tribunal proceedings, while also re-affirming a tribunal’s right to control its process by limiting the amount of time given to parties to present their cases.
Background
Between January 2019 and June 2022, the applicant filed 160 HRTO applications on her own behalf and on behalf of others. The HRTO Vice-Chair ordered a preliminary hearing on whether the applicant’s applications should be dismissed as an abuse of process, and whether the applicant should be declared a vexatious litigant.
The Vice-Chair found the applicant to be a vexatious litigant and required her to file written submissions explaining why her 155 outstanding applications were legitimate assertions of her rights and not an abuse of process. The applicant sought reconsideration of the Vice-Chair’s decision, which the HRTO dismissed. The applicant then brought an application to the Ontario Divisional Court for judicial review of the decision declaring her a vexatious litigant, arguing that the decision was procedurally unfair and unreasonable.
The Divisional Court’s Decision
On the application for judicial review, the applicant sought to admit two new affidavits, one of which contained a recording of the HRTO’s preliminary hearing, which she had recorded surreptitiously contrary to the HRTO’s practice direction. The practice direction allowed parties to request permission to record proceedings or have the HRTO record them as a form of accommodation. The applicant did not request permission or seek accommodation in this regard, and instead recorded the preliminary hearing without telling anyone she was doing so.
The Divisional Court noted that parties are expected to know and follow a tribunal’s rules and practice directions. Nevertheless, the Divisional Court decided to admit the recording into evidence, finding that many of the issues the applicant raised with respect to procedural fairness were not evident from the written record of the hearing or the Vice-Chair’s written reasons.
In making this decision, the Divisional Court did not refer to (or perhaps its attention was not drawn to), section 29 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), which makes it an offence punishable by a fine of up to $25,000 to make an unauthorized recording of a tribunal proceeding.
With respect to procedural fairness, one of the applicant’s arguments was that the Vice-Chair did not give her legal counsel an opportunity to make full submissions on her behalf and say everything he wanted to say. The Divisional Court rejected this argument, finding that the Vice-Chair gave the applicant, through her legal counsel, a reasonable opportunity to adduce evidence and make submissions. The applicant knew that the hearing was scheduled to be 3 hours, and that there were 3 sets of respondents who were also entitled to an opportunity to be heard. The Divisional Court noted that counsel are expected to prepare their submissions to fit within the time they are allotted during the hearing and cannot expect a tribunal to schedule additional time. The fact that the applicant’s counsel did not get to say everything he wanted to say within the time allotted to him did not render the proceeding procedurally unfair.
In this regard, the Divisional Court also found that the Vice-Chair was entitled to control the process by limiting the time afforded to each party to ensure the hearing was completed within the time allotted. The Vice-Chair had authority to direct the order in which the evidence was presented and to ask counsel to focus the evidence and submissions on certain issues pursuant to the HRTO’s Rules of Procedure. Accordingly, the Divisional Court held that there was no procedural unfairness as a result of the steps taken by the Vice-Chair to control the process in this manner.
The Divisional Court dismissed the application for judicial review, finding that the HRTO’s decision declaring the applicant to be a vexatious litigant was procedurally fair and reasonable.
Takeaways
The Divisional Court’s decision provides guidance on the issue of procedural fairness in tribunal decision-making, particularly with respect to recording proceedings and a tribunal’s authority to control its process by limiting the amount of time parties have to present their cases. Although the applicant’s surreptitious recording of the HRTO hearing was deemed admissible in this case, the Divisional Court recognized that such recordings are inappropriate and parties are expected to know and comply with a tribunal’s rules and practice directions. Although not addressed in this decision, the SPPA makes it an offence to create an unauthorized recording of a tribunal’s proceedings.
The Divisional Court’s decision also confirms that tribunals have a right to control their processes, including by limiting the time afforded to each party and directing them to focus their evidence and submissions to ensure the hearing is completed within the time allotted. Although a tribunal must ensure that parties are given a reasonable opportunity to adduce evidence and make submissions, the parties and their legal counsel are responsible for tailoring their submissions to fit within the time given to them, and tribunals have the authority to limit that time.
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