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Human Rights (Ont) - Mediation. Galace v. Winners Merchants International L.P.
In Galace v. Winners Merchants International L.P. (Ont Div Ct, 2026) the Ontario Divisional Court allowed an HRTO JR, this brought against the dismissal of an application "alleging discrimination by her employer .... on the grounds of age and disability as well as alleging reprisal".
Here the court illustrates the widespread HRTO proceeding use of 'Case Assessment Directions', mediation and the potential effect of non-compliance with procedural orders:[2] The applicant had filed an application at the HRTO alleging discrimination by her employer, the respondent Winners Merchants International L.P., on the grounds of age and disability as well as alleging reprisal. The applicant was self-represented. There were case management conferences over a lengthy time period, resulting in Case Assessment Directions (CADs), as well as endorsements, not all of which need to be detailed here.
[3] By a CAD dated September 23, 2022 (the 2022 CAD), the applicant was required to produce medical records and clinical notes within a designated time period. The CAD noted that the failure to do so would give rise to a risk of the application being dismissed. Further, by a CAD dated April 22, 2024, the parties were given general directions about the steps to prepare for the hearing, including documents they had to produce and file in advance of the hearing. The applicant did produce some medical records and other required materials but had not produced the clinical notes from her physician.
[4] There was a case management conference in September 2024, resulting in a CAD dated September 20, 2024 (the 2024 CAD). The Vice-Chair ruled as follows:(i) that the parties had exchanged and filed their materials; and,
(ii) that the parties agreed to a mediation. [5] At the case management conference, the employer raised the issue of the failure to produce the clinical records, referring to the above 2022 CAD. On that issue, the Vice-Chair ruled as follows:... the applicant clarified that she is only pursuing general damages and is not making any claim for lost wages. Consequently, I find that the requirement for medical records has now been rendered moot. [Emphasis added.] [6] The employer made a request for reconsideration of the 2024 CAD. This request was deferred until after the mediation.
[7] Although there were further CADs and endorsements after the 2024 CAD, none of them referred to mootness or expressly addressed the above ruling relieving the applicant of the obligation to produce more records.
[8] A mediation/adjudication was scheduled and, in a CAD that did not mention the mootness ruling, there is a general statement that if the applicant had not complied with the 2022 CAD, she would have to provide a good faith explanation or her application could be dismissed.
[9] The applicant’s position is that she did comply. She had produced medical reports and had been relieved from producing additional records by the 2024 CAD.
[10] At the mediation/adjudication, the applicant declined mediation and requested a hearing on the merits. In the resulting Final Decision, the adjudicator recounted the history including the 2022 CAD and other CADs but made no mention of his own mootness ruling in the 2024 CAD. The adjudicator relied on those other CADs and asked the applicant for a good faith explanation for the failure to produce the medical records. The adjudicator spoke about the importance of compliance with the Tribunal’s directions, found that the applicant had failed to comply, and dismissed the application as an abuse of process.
[11] The applicant has raised several issues on this application for judicial review. We conclude that only one needs to be addressed as the basis to grant the application. The applicant submits that it was procedurally unfair to dismiss the application in the face of the 2024 CAD on mootness or to overturn that 2024 CAD implicitly without any opportunity to at least make submissions.
[12] The employer submits that the later rulings and the Final Decision do implicitly overturn the 2024 CAD despite the lack of any reference to mootness and any express discussion regarding why the adjudicator may have changed his mind.
[13] There is no issue of the standard of review on questions of procedural fairness. The requisite level of procedural fairness must be provided. We conclude that procedural fairness was not provided with respect to the mootness ruling in the 2024 CAD. The adjudicator either entirely disregarded that ruling or purported to overturn it implicitly without any process. Either is procedurally unfair. The parties were not notified of the prospect that the 2024 CAD might be changed by the adjudicator on his own initiative nor was there any opportunity to make submissions.
[14] The employer submits that the adjudicator did implicitly change the 2024 CAD ruling on mootness. The employer submits that was fair to the employer because the applicant would not produce the records and the mootness ruling was faulty (as set out in its request for reconsideration of that ruling, based on the disputed position that the CAD was final). The reconsideration process underscores the lack of a fair process here. If there was a right to request reconsideration of the 2024 CAD, the applicant would have had the right to make submissions about whether the 2024 CAD should be changed before that CAD could be altered.
[15] This procedural unfairness renders the rest of the HRTO proceeding after the 2024 CAD unfair. This is particularly apparent in the Final Decision, which is based not on the merits but on the alleged failure to comply with other CADs requiring the production of medical records.
[16] The application is therefore granted as follows. All CADs, endorsements and HRTO orders made after the 2024 CAD, including the Final Decision and the Reconsideration Decision, are quashed. The HRTO shall resume processing the HRTO application before a different adjudicator. We make no comment on what the next steps should be except that any attempt to change the 2024 CAD must be done on notice with an opportunity for both parties to make submissions. The respondent employer shall pay the applicant costs in the agreed sum of $10,000, all inclusive.
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