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Appeal-Judicial Review - Fairness - Late Submissions

. Yan v. 30 Forensic Engineering Inc.

In Yan v. 30 Forensic Engineering Inc. (Div Court, 2023) the Divisional Court considered (and dismissed) an argument that the late submission of case law by a party was procedurally unfair, here in an HRTO context:

iii. The Late Filing of the Caselaw

[47] Ms. Yan raised the late filing of 30 Forensic’s caselaw as one more procedural irregularity that further compromised the procedural fairness of the hearing. The evidence concluded on January 19, 2022. The Tribunal gave the parties one day to prepare their closing submissions. In its closing submissions, on January 21, 2022, 30 Forensic referred to 11 decisions, the Code, and the Human Rights Commission Guidelines but it did not provide those references to Ms. Yan. At the conclusion of its submissions, the Tribunal directed it to provide Ms. Yan with copies of cases, which 30 Forensic did after 5 p.m. on the same day. The Tribunal also gave Ms. Yan until January 26, 2022, “to file written submissions in reply in relation to those decisions only”. Ms. Yan filed supplemental submissions, but she did not comply with the Tribunal’s direction. Instead, she sought instead to reopen her evidence and amplify the narrative of her original closing submissions. The Tribunal concluded that given the importance of finality and fairness to the proceedings, it would be inappropriate to consider those additional submissions.

[48] In her submissions before this court, Ms. Yan said she was completely blindsided by 30 Forensic’s filing of the caselaw. She contended that the caselaw should have been filed well in advance of the hearing and at the time when it filed its Responding Record. In the absence of such an advance filing, Ms. Yan said she was unable to follow the Respondent’s arguments, making it difficult to respond accordingly. The additional days the Tribunal gave her, which she counted to be only three days, were therefore useless to her.

[49] In my review of this concern, I note that the Tribunal was aware that Ms. Yan was self-represented. Giving Ms. Yan additional days to respond to the caselaw was fair. Although it would have been prudent for 30 Forensic to have provided its references to the caselaw it intended to raise, in advance of its oral submissions, the timing of that would have been just before the closing submissions were delivered, and not weeks in advance of the hearing, as Ms. Yan suggested. The HRTO Rules of Procedure do not require any party to file the caselaw it intends to rely on in advance of the hearing. Tribunals Ontario’s Guide to Preparing for a Hearing before the HRTO (2010) advises parties of the following with respect to the requirement and preparation of closing submissions:

After the parties have presented the evidence, each party has an opportunity to review the evidence and the law and to tell the HRTO adjudicator how the case should be decided. It is important to note that the HRTO adjudicator must base his or her decision only on the evidence and argument heard at the hearing. It is therefore necessary to present all the relevant information at the hearing as there will not be another opportunity to do so.

[50] Ms. Yan may have found the preparation of closing submissions challenging, but she would have known that each side would be presenting a summary of the evidence and the law, on which they intended to rely. That requirement could not have come as a surprise. Moreover, in her proposed supplemental submissions, which she attached to her affidavit in support of the Application for a judicial review, there was no reference to any caselaw, much less any attempt to engage with the 11 cases that 30 Forensic raised in its closing submissions. Nor was there any evidence that Ms. Yan complained about being blindsided or suggested that she needed more time than what was accorded to her to submit the supplemental reply.

[51] I would also add, that although it made sense for the Tribunal to offer Ms. Yan the opportunity to submit a reply in writing, the HRTO’s Rules of Procedure do not contemplate a reply. Furthermore, s. 43(8) of the Code states the following:

(8) Failure on the part of the Tribunal to comply with the practices and procedures required by the rules or exercise of discretion under the rules by the Tribunal in a particular manner is not a ground for setting aside a decision of the Tribunal on an application for judicial review or any other form of relief, unless the failure or the exercise of a discretion caused a substantial wrong which affected the final disposition of the matter.

[52] The Tribunal exercised its discretion in Ms. Yan’s favour. The exercise of that discretion did not cause any substantial wrong which affected the final disposition of the matter. Having given that opportunity to Ms. Yan, it is difficult to find that the Tribunal’s approach to the closing submissions was anything but fair.