HUMAN RIGHTS TRIBUNAL OF ONTARIO

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B E T W E E N:
D.D. and X.F.

2020 HRTO 21 (CanLII)

Applicant

-and-

TRIO Fertility

Respondent

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INTERIM DECISION
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Adjudicator: Josée Bouchard

Date: January 10, 2020

File Numbers: 2018-32481-I; 2018-32514-I

Citation: 2020 HRTO 21

Indexed as: D.D. v. TRIO Fertility

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 WRITTEN SUBMISSIONS

)
D.D. and X.F., Applicants ) Self-represented
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2020 HRTO 21 (CanLII)

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INTRODUCTION

[1] The applicant D.D. filed an Application alleging discrimination with respect to
goods, services and facilities because of disability contrary to the Human Rights Code,
R.S.O. 1990, c. H.19, as amended (the “Code”). In response to a Notice of Intent to

2020 HRTO 21 (CanLII)

Dismiss, the applicant D.D. indicated that he is alleging discrimination on the basis of
family status and/or marital status. The applicant X.F. filed an Application alleging
discrimination with respect to goods, services and facilities because of race, ancestry,
place of origin, ethnic origin and/or disability.

[2] This Interim Decision addresses the applicants’ request that I recuse myself from
the proceeding. In an Interim Decision in these proceedings, D.D. v. TRIO Fertility, 2019
HRTO 1448 (“the Interim Decision”), I found that a request for production of documents
and a request that the Tribunal consider the Commission’s Policy on Ableism and
Discrimination based on Disability pursuant to section 45.5(2) of the Code were
premature. I also noted that “in addition to their production request, the applicants filed a
reply to the respondent’s Response to the Request for an Order During Proceedings
(“RFOP”). Rule 19 of the Tribunal’s Rules of Procedure does not entitle a party to reply
to a response to an RFOP and as such the reply was inappropriately filed. However,
even if I had considered the reply in making my decision, my decision would remain
unchanged”.

[3] The applicants argue that the finding that the Tribunal’s Rules of Procedure do
not provide for a reply to a Response to a Request for an Order During Proceedings is
inconsistent with the Rules of Procedure and jurisprudence, and the applicants are
concerned that I cannot adjudicate this matter objectively and fairly.

[4] The applicants set out the following reasons and submissions for their request
that I recuse myself:

a. The Vice-chair has ruled that an RFOP, which is a filing, cannot be

amended and that D.D. and X.F. cannot reply to a Response to the RFOP.

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 b. The Vice-chair supports her ruling by stating that Rule 19 does not
specifically state that one can reply to a response so, therefore, it is
“inappropriately filed”.
c. This ruling is in contradiction with Rule 1.7 (c).
d. The applicants’ request that the Vice-chair present any evidence to
support her ruling that an RFOP cannot be amended.

2020 HRTO 21 (CanLII)

e. The applicants have been unable to substantiate this claim by the
Vice-chair that a litigant cannot reply to a Response to an RFOP and put
the Vice-chair to the strictest proof thereof.

[5] The respondent has not filed submissions on the request to recuse.

ANALYSIS AND FINDINGS

[6] Although the applicants have not framed it this way, their submissions that I
cannot adjudicate this matter objectively and fairly amount to an allegation of bias or a
reasonable apprehension of bias. The applicants disagree with the Interim Decision.
However, as noted in Sebhatu v. Starwood Canada Corp. o/a The Westin Harbour
Castle, 2012 HRTO 329 (“Sebhatu”) at para. 15, disagreeing with the Tribunal’s
directions, or in this case, a decision, does not give rise to a reasonable apprehension
of bias. The well-established principles to be applied in considering apprehension of
bias, as enunciated by the Supreme Court of Canada in Committee for Justice and
Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394,
are as follows:

. . . the apprehension of bias must be a reasonable one, held by

reasonable and right minded persons, applying themselves to the question
and obtaining thereon the required information. In the words of the Court
of Appeal, that test is “what would an informed person, viewing the matter
realistically and practically – and having thought the matter through –
conclude. Would he think that it is more likely than not that [the decision-
maker], whether consciously or unconsciously, would not decide fairly.

[7] To make out a case of bias, the decision-maker’s words and conduct must
demonstrate to a reasonable and informed person that he or she does not have an
open mind to the evidence and arguments presented. See R. v. S. (R.D.), 1997 CanLII
324 (SCC), [1997] 3 S.C.R. 484.

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[8] The Tribunal in Sebhatu went on to explain that proactive case management
does not mean that an adjudicator has pre-judged an issue or the application (at para.
15, citing Noronha v. 1174364 Ontario, 2009 HRTO 1292):

Modern approaches to procedural fairness do not require a Tribunal, in its

2020 HRTO 21 (CanLII)

dispute resolution functions, to be completely passive, particularly when it
comes to case management, and the effective use of adjudicative
resources. The mere fact that an adjudicator identifies an issue which he
or she believes is important in a proceeding, and seeks submissions
thereon, does not mean that the adjudictor (sic) is favouring one of the
parties, or that the adjudicator has pre-determined the issue or the
application. One of the reasons Tribunal adjudicators are selected on the
basis of their specialized, subject area expertise, is to ensure the tribunal
has the ability to identify relevant issues, which enables disputes to be
resolved fairly and expeditiously.

[9] I find that the same arguments are applicable to interim decisions made in the
context of a proceeding. The fact that an adjudicator has issued a decision on a
preliminary matter does not, without more, mean that the adjudicator is favouring one of
the parties, has pre-determined the application, or has a closed mind.

[10] In coming to my conclusion in the Interim Decision, I considered the submissions

of both parties, the jurisprudence and the Tribunal’s Rules of Procedure to decide that
the applicants’ requests were premature. There is nothing that demonstrates I acted in a
way that denied the applicants’ procedural fairness, or that I cannot adjudicate
objectively or fairly. Making an Interim Decision that requests are premature does not
raise a reasonable apprehension of bias, and I decline to recuse myself.

[11] I note that the proper procedure to address dissatisfaction with a Tribunal’s
decision is to file a Request for Reconsideration under Rule 26 of the Tribunal’s Rules
of Procedure. However, Rule 26.1 provides that a party may request reconsideration of
a final decision of the Tribunal. A decision will only be considered a final decision where
the decision has the effect of finally determining the substance of the dispute or a
central element of the dispute between the parties. See for example Ontario Human
Rights Commission v. Ontario Teachers’ Federation, 1994 CanLII 10578 (ON SC), 19
O.R. (3d) 371.

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[12] Consequently, even if the applicants had requested reconsideration of the Interim
Decision, the request would be dismissed as the decision is not a final one. The Interim
Decision simply found that the applicants’ requests were premature. It did not dispose of

2020 HRTO 21 (CanLII)

the entirety of the complaint. Not being a final decision, it cannot, at this time, be the
subject of a reconsideration request. See Galuego v. Kensington Health Centre, 2009
HRTO 179 at para. 2.

Dated at Toronto, this 10th day of January, 2020.

“Signed by”

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Josée Bouchard
Vice-chair