Joe Clark: Accessibility ¶ Design ¶ Writing

Procedural application

I petition the Chair of the Dispute Resolution Panel to cancel a hearing arbitrarily scheduled for 2013.05.15. I also have complaints about the procedural handling of my case.

I am not “appealing” anything

I filed a complaint under the Dispute Resolution Process on 2012.06.27. The Chair eventually noticed its existence and a Dispute Resolution Panel was eventually assigned.

I received this E-mail from Martha McCarthy, dated 2012.11.28:

The panel has been constituted and will consist of Elizabeth McIntyre, Susan Ursel and me. The panel has reviewed your complaint. The panel is concerned that the complaint duplicates or is in the nature of an appeal of an earlier decision involving the same issues... or is otherwise beyond the jurisdiction of the panel. Before a decision is made, the panel invites your written submissions on whether and where in the panel procedure we would find our authority to deal with each of the grounds raised.

This attempt to dismiss my complaint on spurious grounds must not be allowed to stand.

Claimed duplication

My complaint is not a duplicate of anyone else’s complaint for the simple reason that I wrote my complaint in isolation from other complainants and with no knowledge whatsoever of even the existence of other complaints, let alone their contents.

The complaint to which McCarthy refers has the single obvious respondent you would expect (QuAIA) and two complainants – the League for Human Rights of B’nai Brith Canada and Leon Kushner. I read the decision, to the extent I could do so with its poor typesetting and frequent misspellings (even the filename is misspelled). I will not list here the ways in which I am not attempting to retry the same arguments raised by those two complainants. I submit that the Dispute Resolution Panel has no authority, in its rules or under the Arbitration Act, to give all possible complainants exactly one chance to file complaints against a respondent. QuAIA may have won one complaint, but that win does not invalidate future complaints. The Panel has no authority to grant QuAIA perpetual immunity from complaints merely because one complaint was decided in its favour. The world did not get exactly one shot to take down QuAIA, contrary to McCarthy’s insinuation.

Claimed location beyond jurisdiction

DRP procedure provides all and only the following reasons to dismiss a complaint:

The DRO may dismiss a complaint, without a hearing or an investigation, if they determine that the complaint is outside of the jurisdiction of the DRP or is frivolous, vexatious or malicious.

The plain reading of this clause holds that the entire complaint must be outside its jurisdiction to be dismissed. The Panel cannot credibly make that claim and has not. On that basis alone, its demand must be rescinded.

The Panel may not pick and choose certain clauses and subclauses, designate them as outside its jurisdiction, and use those as pretexts to dismiss a complaint. The Panel can deem certain claims outside its jurisdiction, if true, in the reasons for its decision after a full hearing. The Panel has no authority, under DRP procedures or the Arbitration Act, to threaten to dismiss a complaint for the claimed reason. Nor must I pre-defend some unspecified subset of my claims, or all of them, before the DRP will even agree to a hearing.

One party may not appeal another party’s case, and I am not doing so

McCarthy claimed I am, in effect, appealing the decision in B’nai Brith/Kushner v. QuAIA. DRP procedures set out precise requirements for an appeal to be considered. None of those procedures were met. On that basis alone, McCarthy’s objection must be dismissed.

I remind you and this licensed lawyer that a party unrelated to a proceeding may not appeal that proceeding. I had nothing to do with B’nai Brith/Kushner v. QuAIA and could not possibly be exercising anything “in the nature of an appeal” of that decision.

B’nai Brith/Kushner v. QuAIA is simply precedent

I should not have been placed in the position to remind the Panel and the Chair that B’nai Brith/Kushner v. QuAIA is simply precedent. It can be (and, I assure you, will be) cited as such in future cases. Citation of precedent is not appeal of that case.

The frivolous B’nai Brith/Kushner v. QuAIA wasn’t dismissed, so my case certainly must not be

The Panel in B’nai Brith/Kushner v. QuAIA did not find that complaint was outside the jurisdiction of the DRP, nor that it was malicious or vexatious. But it definitely was frivolous.

The case seemed to have all the evidentiary weight of something scratched out on a cocktail napkin, but it was allowed to proceed and a decision was filed.

My complaint already stands head and shoulders above Kushner’s and B’nai Brith’s complaints in reasoning, and will set itself even further ahead of those complaints in due course when I submit a supplementary filing on legal precedent. Yet, I say again, the frivolous B’nai Brith/Kushner v. QuAIA was granted the full extent of the dispute-resolution process while the President of the Panel overseeing my complaint has issued vague threats to dismiss it.

Remedy sought

A ruling from the Chair that McCarthy’s E-mail has no effect in this proceeding.

Summons to a hearing with an unspecified agenda

I received an E-mail, dated 2013.03.13, from Sarah Young stating:

The panel has determined that it will convene a one-hour meeting at which we will receive submissions about the jurisdiction and other issues. The meeting has been scheduled for May 15, 2013 at 11:30 a.m. at our office.

In advance of the meeting, please provide the panel with a brief of all materials upon which you intend to rely. This can be done by E-mail to my office.

No one from the Panel has listed which of my claims it “is concerned” fall outside its jurisdiction. I reiterate my statement that any out-of-jurisdiction claims can be deemed such in a final decision after a real hearing into my complaint. I am not prepared to obey an E-mailed summons to defend what I don’t have to defend in the first place, a summons I find even more objectionable given its lack of specifics.

That’s two communications from the Panel that have failed to specify what, if any, my out-of-jurisdiction claims might be. I’ve established already that the Panel may dismiss an entire complaint as being out of jurisdiction or accept it and carry on; there is no in-between. Nor did Young reply to my E-mailed question asking for an agenda for that meeting. Young also didn’t even bother to tell me who else would be in the room (e.g., QuAIA).

Remedy sought

That the Chair cancel this meeting.

Legitimate procedural issues

This Panel has unresolved procedural issues that must be rectified before we go any further.

Statutory declaration of conflict of interest

I trust the Chair will allow me to cite B’nai Brith/Kushner v. QuAIA without accusing me of attempting to “appeal” it. At ¶3, the Panel claims that constitution of a panel “is purely an internal administrative process and was not open to challenge before the Board.” This grandiose declaration disregards the provision of the Arbitration Act, at ¶11(1)(2):

Before accepting an appointment as arbitrator, a person shall disclose to all parties to the arbitration any circumstances of which he or she is aware that may give rise to a reasonable apprehension of bias.

Panel members have provided no disclosure. Given the close-knit, even incestuous, nature of Toronto’s gay and lesbian community and the social class and long standing of the Panel and that of QuAIA respondents Tim McCaskell and Elle Flanders, an absence of declaration of bias is not the same as proof there is no bias.

Panel members, like members of the Panel in B’nai Brith/Kushner v. QuAIA, misunderstand and misunderstood their own legal obligations and have failed to declare relevant “circumstances... that may give rise to a reasonable apprehension of bias.”

Remedy sought

A statement from all Panel members in this proceeding that they have no bias in my matter. In particular, statements attesting:

Panel members are to make the same disclosures on behalf of their domestic partners and spouses and their partners and employees in legal practice.

What I fear is going on here

The DRP was set up because nobody at Pride Toronto had the balls to squash QuAIA like a bug when Pride Toronto had the chance. It outsourced that dirty work to this labyrinthine – and, I see now, often rather petty – panel of allegedly disinterested outsiders.

The Panel is now faced with a credible complaint that very well could result in an order banning QuAIA. Fundamentally, Panel members allegedly do not want to be known as the bad guys who picked on Queers Against Israeli Apartheid and metaphorically rained on their parade. Panel members allegedly do not want to be forced to exercise a power they find distasteful, in part for fear of its impact on their reputations and legacies.

The fact remains that I have arrived at this process better prepared and informed than anyone else, to my knowledge. Panel members, its President, and the Chair have to wrap their minds around the probability that I will make a convincing case and they will indeed have to ban QuAIA from the Pride parade and related marches. That is really what’s happening here and those really are the stakes.

So the Panel really ought to quit while it’s ahead in its efforts to derail and disqualify the only valid complaint, the only complaint that might actually prevail, that the process has yet received, in my estimation.

Posted: 2013.04.04

Homepage: Joe Clark Homepage: Joe Clark Media access (captioning, Web accessibility, etc.) Graphic and industrial design Journalism, articles, book