) ) LINDA LOU GRAHAM Applicant – v. –, 2023 ONSC 310

CITATION : Graham v. New Horizon System Solutions, 2023 ONSC 310 DIVISIONAL COURT FILE NO.: 098/22 DATE: 20230118 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Sachs, O’Brien, and Schabas JJ BETWEEN: ) ) LINDA LOU GRAHAM Applicant – and – NEW HORIZON SYSTEM SOLUTIONS, CAPGEMINI, ONCIDIUM HEALTH GROUP, PETER WATSON, STEPAN MOSKAL AND ANNE TREACY-BARBER Respondents – and – HUMAN RIGHTS TRIBUNAL OF ONTARIO Respondent ) ) ) ) ) ) ) ) ) ) ) )) ) )) ) ) ) L. L. Graham , Self-Represented A. Heenan , for the Respondents, Capgemini, New Horizon System Solutions, Stepan Moskal, Anne Treacy-Barber and Peter Watson G.

McGinnis and S. Ramsay, for the Respondent, Oncidium Health Group B. Blumenthal , for the Respondent, Human Rights Tribunal of Ontario ) ) ) HEARD: Via Videoconference at Toronto on January 4, 2023 Sachs J. and O’Brien J.: reasons for decision Overview [ 1 ] The Applicant, Ms. Graham, has brought this application seeking judicial review of a decision of the Human Rights Tribunal of Ontario (“HRTO” or “Tribunal”). The Tribunal dismissed an application in which Ms. Graham alleged she had suffered discrimination on the basis of disability and reprisal.

She alleged that her employer, the Respondent, New Horizon System Solutions, Inc., refused to accommodate her in the workplace and coerced her into signing a settlement which resulted in the termination of her employment. She also alleged the Respondent, Oncidium Inc., which provided disability management on behalf of New Horizon, discriminated against her by failing to accept the accommodation recommendations of her treating physician. [ 2 ] Prior to her dismissal, Ms. Graham had been employed at New Horizon for a number of years.

She alleges that exposure to paint fumes in her workplace triggered environmental sensitivities, which caused her to be frequently absent from work. In the summer of 2016, she went on sick leave based on medical documentation that her environmental sensitivities were being aggravated by exposure to mold and toxins in her office. New Horizon refused to return her to a different work location because of an opinion from Oncidium’s consulting physician that there was no causal connection between her work location and her symptoms. [ 3 ] Ms.

Graham’s union filed a grievance on her behalf alleging a failure to accommodate and breach of the Human Rights Code , R.S.O. 1990, c. H. 19 , as amended (the “ Code ”). The grievance was referred to arbitration. On December 5, 2016, the parties attended a mediation with the arbitrator at which they reached a resolution. Ms. Graham signed Minutes of Settlement (“MOS”) in which she agreed her employment was terminated and under which she received monetary compensation. The MOS also included a release of her claims against New Horizon.

Tribunal Decisions [ 4 ] The Tribunal issued its decision, which was dated January 17, 2020, after a combined

summary/preliminary hearing. It found that fairness required there to be finality to the issues settled between the parties. It declined to set aside the settlement and concluded that Ms. Graham was not permitted to proceed with litigation in the face of a full and final release. The Tribunal Adjudicator specifically found Ms. Graham’s evidence to be untrustworthy and unreliable. Contrary to Ms. Graham’s submissions, the Adjudicator concluded that the circumstances under which the release agreement was signed did not amount to duress or mental incapacity.

Therefore, it would constitute an abuse of process to allow the application against New Horizon to proceed. [ 5 ] The Tribunal also dismissed the case against Oncidium as having no reasonable prospect of success. The Adjudicator concluded there was no evidence that Oncidium’s decisions related to Ms. Graham’s disability were based on considerations linked to a prohibited ground under the Code . Finally, the Adjudicator dismissed an allegation that New Horizon issued a record of employment incorrectly stating that Ms. Graham’s employment had ended due to mandatory retirement. She concluded Ms.

Graham had not demonstrated a link between this allegation and her disability; therefore, the allegation had no reasonable prospect of success. [ 6 ] After receiving the Tribunal’s decision, in February 2020, Ms. Graham filed a request for reconsideration with the Tribunal. By decision dated August 30, 2021, the Tribunal dismissed this request on the basis that the test for granting reconsideration had not been met. Ms.

Graham then filed a further request for reconsideration, which was dismissed on the basis that the Tribunal will not consider a subsequent request for reconsideration absent exceptional circumstances. Ms. Graham also seeks judicial review of these two further Tribunal decisions. Issues [ 7 ] Ms. Graham raised numerous issues before this Court, which we will address in the discussion below. We understand her submissions to be as follows:

(1) The hearing was procedurally unfair in that the Applicant’s physician witness was restricted to speaking about the contents of a letter she had provided.

(2) The hearing was procedurally unfair because the Applicant was not permitted to discuss her health prior to the date of the settlement meeting.

(3) The hearing was procedurally unfair because the Adjudicator had a closed mind to the Applicant’s submissions.

(4) The Tribunal erred in failing to take into account a misrepresentation in the MOS.

(5) The Tribunal ignored the evidence the Applicant put forward in support of her failure to understand the MOS.

(6) The Applicant was prejudiced by the lengthy delay in issuing the reconsideration decision.

(7) The Tribunal erred in failing to address the Applicant’s allegation that New Horizon discriminated against her by requiring her to use her old workstation when collecting her belongings after her dismissal. [ 8 ] For the reasons that follow, the application is dismissed. Standard of Review [ 9 ] The standard of review for decisions of the HRTO is reasonableness: Ontario (Health) v. Association of Ontario Midwives , 2022 ONCA 458 , at para. 83 . With respect to allegations of procedural fairness, the question is whether the required level of procedural fairness has been accorded.

Preliminary Issue [ 10 ] At the hearing before us, Ms. Graham attempted to rely on a Notice of Constitutional Question and affidavit material that were not served by the deadline for filing her materials on this judicial review. On December 6, 2022, Corbett J. issued a direction stating that Ms. Graham was required to bring a motion requesting permission to file the additional materials. Ms. Graham did not do this. [ 11 ] Given Ms. Graham’s failure to bring a motion, the panel did not adjourn the hearing to allow the parties to substantively respond to Ms.

Graham’s Notice of Constitutional Question, which was over 600 pages. With respect to the affidavit material, other than one piece of evidence, Ms. Graham also did not justify why the material should be admitted under an exception to the principle that the Court on judicial review will only consider the material that was before the administrative decision-maker. [ 12 ] The Court did admit one piece of evidence that Ms. Graham provided in the additional material.

This was a statement the Adjudicator of the HRTO made at the hearing to the effect that she was “an abuse of process person” when it came to signed settlements. The statement is discussed further below. None of the parties objected to the admission of this statement and the responding parties made substantive submissions in response to it. This statement is admitted into evidence under the exception for evidence to disclose a breach of natural justice that cannot be proven on the available record: 142445 Ontario Limited (Utilities Kingston) v. IBEW, Local 636 , 2009

24643 (Div. Ct.), at para 18. Discussion Restricting Doctor’s Testimony [13] Ms. Graham submits that the Tribunal breached procedural fairness by limiting the testimony of the physician witness shecalled to what that witness had said in a letter that had been filed in advance with the Tribunal. According to Ms. Graham, this impactedon her ability to fully present her case. [14] It is true that the Tribunal did restrict what Ms. Graham’s physician witness could testify about. However, it is important toput this limitation in context. [15] On December 18, 2018, the Tribunal issued a Case Assessment Direction (CAD) regarding the

summary/preliminary hearingit had decided to hold. Paragraph 14 of the CAD provided that the parties would be permitted to call witnesses in relation to the abuse ofprocess issue, but if they wished to do so, “they must deliver a witness list and a

summary of the expected witness evidence to theTribunal and to each other no later than 5 weeks (35 days) after the date of this CAD.” [16] Ms. Graham did not comply with this direction. Instead, on September 4, 2019, she provided the Tribunal and the other partiesto the hearing with a letter from the physician she called as a witness. When Ms. Graham sought to call the physician as a witness, theother parties objected, citing her failure to file a witness statement in accordance with the CAD. The Tribunal allowed Ms.

Graham tocall the doctor and decided that it would treat the letter as a witness statement. [17] The Tribunal is entitled to control its own process and, in doing so, is entitled to direct the parties to disclose by a specific datewhat witnesses they will call and what those witnesses will say. This is what the Tribunal did in this case. Further, when Ms. Graham didnot comply with the direction ,either in terms of deadline or in terms of the filing of a witness statement, the Tribunal still allowed her tocall her witness, but did so in a way that would not cause undue prejudice to the other parties.

There is nothing unfair about this process. Inability to testify about her health before the settlement date [18] Ms. Graham claims that she was denied procedural fairness because the Tribunal stopped her from testifying about her healthprior to the date that she entered into the settlement agreement that was the subject of the abuse motion (December 5, 2016). [19] The Tribunal permitted Ms. Graham to testify about all matters that shed light on her mental state on December 5, 2016.

It didnot allow her to go into the details about her employment history with New Horizon or about matters that were not relevant to her state ofmind on the settlement date. [20] The Tribunal’s position on what Ms. Graham could testify about was not a breach of procedural fairness. The issue before theTribunal was whether Ms. Graham had the capacity to enter into the settlement in question on December 5, 2016 and whether she wassubject to duress on that date. It was not deciding the merits of her complaint against her employer.

Therefore, it appropriately ruled thatit did not want to hear evidence that only spoke to the merits of the application. Nor was it necessary for the Tribunal to hear evidenceabout Ms. Graham’s past health, except to the extent that that health affected her allegation of duress and her capacity to enter into thesettlement agreement on December 5, 2016. Closed Mind [21] Ms. Graham argues that the Tribunal demonstrated a closed mind. According to her this was apparent from the beginning ofthe hearing when the Adjudicator said: “On signed settlements, I’m an abuse of process person personally.” [22] Ms.

Graham also submits that the Tribunal’s closed mind can be seen in the way the Adjudicator conducted herself during thehearing (constantly interrupting Ms. Graham) and in the Tribunal’s treatment of her credibility in its decision. [23] On the face of it, the words cited by Ms. Graham might cause a concern. However, again, Ms. Graham failed to put the wordsin their proper context. As the CAD referred to above makes clear, there were two bases upon which Ms. Graham’s complaint against heremployer could have been dismissed:

(1) If the settlement agreement that arose in the context of another proceeding had dealt with thesubstance of the discrimination complaint (s. 45.1 of the Code) or

(2) If the settlement agreement meant that it would be an abuse ofprocess to proceed with Ms. Graham’s human rights application. When the parties discussed with the Tribunal which argument to pursue,the Tribunal indicated that when it came to signed settlements, the Adjudicator was someone who preferred the abuse of processargument. By expressing this, the Adjudicator was in no way demonstrating a closed mind towards Ms. Graham. She was not saying thatbecause Ms. Graham had entered into the settlement agreement it would be an abuse of process to allow her human right application toproceed.

She was just stating her preference that the argument and the evidence be presented within the abuse of process framework. [24] There is also no basis to conclude that any of the interruptions that the Tribunal made were anything more than a desire tocontrol its own process and to ensure that Ms. Graham testified about matters that were relevant to its decision as opposed to matters thatwere not. [25] Ms.

Graham is obviously very offended about the views that the Tribunal expressed about her credibility, but again there isnothing in either the content of those views or the manner in which they were expressed that indicate that the Tribunal had a closed mindtowards Ms. Graham. The Tribunal was careful to give reasons why it made the credibility findings it did, reasons that were based on the

evidence it heard, not on any preconceived ideas about Ms. Graham or the merits of her position with respect to the MOS. Misrepresentation in Settlement Agreement [ 26 ] Ms. Graham submits that the Tribunal erred in failing to take into account that the MOS contained a misrepresentation to the effect that her position was being eliminated. The statement was false, in her submission, because her position was never eliminated. [ 27 ] The Tribunal’s reasons note that Ms. Graham “did not testify that she did not understand the impact of signing the agreement.” The Adjudicator also expressed the view that Ms.

Graham’s responses to cross-examination on the issue of her ability to understand the MOS lacked candour. [ 28 ] The relevant provision in the MOS provides that the union agreed Ms. Graham’s position would not be posted under the collective agreement. As set out in the MOS, the position instead would be filled by an employee who would be subject to restructuring in the following year. There was no misrepresentation, as the MOS does not say the position was being eliminated. There is therefore no basis to interfere in the Tribunal’s decision on this issue.

Evidence in Support of Failure to Understand MOS [ 29 ] Relying on a series of e-mails from February 2017, Ms. Graham submits that the grievance officer was unable to understand a particular provision of the MOS. She relies on this evidence in support of her position that she herself did not understand it. She reasons that if he did not understand the MOS, she could not be expected to have understood it. [ 30 ] While the Tribunal did not address this submission in detail, as set out above, it found Ms. Graham’s evidence that she did not understand the MOS to lack candour. [ 31 ] The communications Ms.

Graham relies on do not discuss any provision of the MOS. The e-mail trail between Ms. Graham and the grievance officer, dated February 27, 2017, was exchanged more than two months after the MOS was signed. It refers to Ms. Graham’s entitlement to post-retirement benefits. The only provision in the MOS pertaining to benefits provides that her health and dental benefits would only continue for eight weeks after execution of the MOS. It appears that the e-mails represent an attempt by the union and Ms. Graham to ensure her benefits continued as post-retirement benefits, despite the provisions of the MOS.

The emails do not demonstrate that either the grievance officer or Ms. Graham failed to understand the provisions of the MOS. Delay in Issuing Reconsideration Decision [ 32 ] Ms. Graham submits that there was a delay of approximately 18 months from the date she submitted her request for reconsideration to the date she received the reconsideration decision. [ 33 ] The Tribunal acknowledges that this length of time was not ideal. However, Ms. Graham made her reconsideration request just prior to the beginning of the COVID-19 pandemic.

In addition, we are advised that the appointment of the Adjudicator who conducted the hearing expired, which resulted in the reconsideration request being assigned to a different member of the Tribunal. The delay was not inordinate, particularly given that the merits of Ms. Graham’s case had already been addressed. Under s. 45.7 of the Code and r. 26 of the Tribunal’s Rules of Procedure , there is no right to have a decision reconsidered. A reconsideration is not an appeal, and the Tribunal will only reconsider a decision in specified circumstances. Ms.

Graham also has not identified any specific prejudice arising from the delay, although it is evident the overall process before the Tribunal has been stressful for her. In all the circumstances, Ms. Graham has not demonstrated an abuse of process. Post-Dismissal Allegation [ 34 ] Ms. Graham submits that the Tribunal failed to address her allegation of discrimination with respect to her return to work to collect her personal effects. She states New Horizon required her to return to her work location and use the computer there to retrieve her personal files, which was harmful to her health. [ 35 ] Ms.

Graham’s application to the Tribunal was enormously voluminous. The allegation regarding the collection of her personal files was buried in materials of over 500 pages, including 15 schedules. The Adjudicator addressed the crux of the issue before her, which was whether the MOS precluded the claims of discrimination against Ms. Graham. She understandably did not treat Ms. Graham’s specific factual statement about collecting her personal files as a discrete allegation of discrimination.

The Tribunal’s approach of subsuming this narrow allegation into the overall case for discrimination against New Horizon was not unreasonable. Conclusion [ 36 ] In addition to the issues raised above, throughout her submissions, Ms. Graham repeatedly raised her concern that the Tribunal did not accept her evidence. The Adjudicator provided a detailed explanation as to why she did not find Ms. Graham’s evidence to be trustworthy or reliable. Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653, cautions reviewing Courts at paras. 125-126 against “reweighing and reassessing evidence considered by the decision maker.” A tribunal’s assessment of credibility, in particular, is entitled to heightened deference: Gale v. College of Physicians and Surgeons of Ontario , 2015 ONSC 1981 , at para. 8 . Ms. Graham has not provided a basis for this Court to intervene in the Tribunal’s assessment of her credibility and reliability. Further, the Tribunal’s decision was overall reasonable and conducted according to a procedurally fair process. Disposition

[ 37 ] The application is dismissed. [ 38 ] The parties did not agree with respect to costs, except that the Respondents, New Horizon and Oncidium agreed to divide any costs in their favour with 60% to New Horizon and 40% to Oncidium. The Respondents jointly sought costs of $30,000. The HRTO did not seek costs. [ 39 ] Ms. Graham submits that she has no funds to pay $30,000. She is without assets and states that she would have to declare bankruptcy to make such a payment.

The Respondents were successful on this judicial review and are entitled to a meaningful costs award, although the costs may be reduced in recognition of Ms. Graham’s financial circumstances. In our view, costs of $7,500.00 are appropriate. Therefore, Ms. Graham shall pay costs of $4,500.00 to New Horizon and $3,000.00 to Oncidium. _______________________________ Sachs, J. _______________________________ O’Brien, J I agree ________________________________ Schabas, J. Released: January 18, 2023 CITATION : Graham v.

New Horizon System Solutions, 2023 ONSC 310 DIVISIONAL COURT FILE NO.: 098/22 DATE: 20230118 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Sachs, O’Brien, Schabas JJ BETWEEN: LINDA LOU GRAHAM Applicant – and – NEW HORIZON SYSTEM SOLUTIONS, CAPGEMINI, ONCIDIUM HEALTH GROUP, PETER WATSON, STEPAN MOSKAL AND ANNE TREACY-BARBER Respondents – and – HUMAN RIGHTS TRIBUNAL OF ONTARIO R espondent REASONS FOR DECISION SACHS, J and O’BRIEN, J

Released: January 18, 2023