Dr. Peter Hanoomansingh v The University of the West Indies
| Jurisdiction | Trinidad & Tobago |
| Judge | Donna Prowell-Raphae J |
| Judgment Date | 25 September 2019 |
| Docket Number | E.O.T. No. 0005 OF 2018 |
| Court | Equal Opportunity Tribunal (Trinidad and Tobago) |
H.H. Donna Prowell-Raphae J
E.O.T. No. 0005 OF 2018
IN THE EQUAL OPPORTUNITY TRIBUNAL
Mr. Ronnie Bissessar instructed by Mr. Varin Gopaul-Gosine for the Complainant.
Mr. Ravi Nanga instructed by Ms. Elena Araujo for the Respondent.
| The Equal Opportunity Tribunal | 3 |
| The Complaint | 3 |
| The Issues | 4 |
| The Submissions | 5 |
| The Respondent | 5 |
| The Complainant | 5 |
| The Respondent's Rebuttal | 6 |
| Law and Analysis | 6 |
| Issue (i) Whether the Tribunal can extend the time for filing an application to challenge its jurisdiction after the Respondent filed its Defence? | 6 |
| Rules 7.13–7.17 of the ETR | 6 |
| TheTailpiece | 9 |
| Reservation of the jurisdictional issue in the Defence | 10 |
| Relief from Sanctions | 11 |
| Applicable Principles | 12 |
| Waiver. | 14 |
| Issue (ii) Whether the University Visitor (of the Respondent) has exclusive jurisdiction to determine the Complainant's complaint that the Respondent violated the Equal Opportunity Act by allegedly discriminating against him? | 14 |
| Disposition | 20 |
The Equal Opportunity Tribunal 1 (“the Tribunal”) is an anti-discrimination court established by the Equal Opportunity Act 2 (“the Act”). The Act permits a person who claims that he has been discriminated against to submit 3 “a written complaint .. setting out the details of the alleged act of discrimination” to the Equal Opportunity Commission (“the Commission”). If the complaint, alter investigation cannot be or is not resolved through conciliation by the Commission, the Commission is mandated, with the consent and on behalf of the Complainant, to institute proceedings before Tribunal for judicial determination of the complaint.
These proceedings were initiated by referral dated July 18 2018 from the Equal Opportunity Commission (‘the Commission”). In these proceedings the Complainant is seeking declarations for discrimination and damages pursuant to sections 6 and 8 of the Act, consequential relief and damages.
By Notice dated 27 August, 2018 time was fixed for the Complainant to file his Complaint and Particulars thereof on or before the 17 October, 2018 and the Respondent to file its Defence on or before 19 November, 2018. A Case Management Hearing was fixed for 6 December, 2018 By Notice of Application filed I7 th October, 2018 the Complainant, applied for an extension of time to file his Complaint with the consent of the Respondent. By order dated 17 October, 2018, the Complainant was granted an extension of time to 30 October 2018 to file his Complaint and the time for the filing of the Respondent's Defence was extended to 30 November, 2018. The Complainant filed the Complaint on 30 October, 2018. The Respondent
By application dated 21 January 2019, the Respondent seeks the following orders pursuant to Parts 7.13 and 24.1 of the Equal Opportunity Tribunal Rules and Procedure 2016 (‘the ETR’) and or Parts 26.1 (1)(d) and 27(9)(1) of the Civil Proceedings Rules 1998 (‘the CPR:):
This application is supported by the affidavit of Camille Ramcharan (‘the Respondent's affidavit’) sworn to on 21 January 2019 and filed herein the same day. It is opposed by the affidavit of Varin Gopaul-Gosein (‘the Complainant's affidavit’) sworn to on 28 January 2019 behalf and filed on 29 January 2019.
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(i) That the time be extended for the Respondent to dispute jurisdiction;
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(ii) A declaration that the Tribunal has no jurisdiction in this matter (‘jurisdictional application’); arid
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(iii) That the Complainant pays the Respondent's costs.
The issues raised for determination are —
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(i) Whether the Tribunal can extend the time for filing an application to challenge its jurisdiction after the Respondent filed its Defence; and
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(ii) Whether the University Visitor (of the Respondent) has exclusive jurisdiction to determine the Complainant's complaint that the Respondent violated the Equal Opportunity Act by allegedly discriminating against him.
The Respondent is seeking by limb (i) of its application to have the time for making the jurisdictional application extended. It submits that by the conjoint application of Part 26.1(1) (d) 4 of the CPR and Rule 24.1 of the ETR the Respondent has the power, which it ought to exercise to extend the time for the jurisdictional application to be made It relies in part on the decision in Williams v. Trinidad and Tobago Gymnastics Federation & others 5, where the court in interpreting section 7 of the Arbitration Act 6, accepted that a reservation in the Defence to take a preliminary point on jurisdiction after the Defence was filed, was sufficient to protect the defendant from the stringency of the requirement in that section 7 to take the point before the Defence was filed.
By limb (ii), (‘the jurisdictional application’), the Respondent contends that the Tribunal ought to decline jurisdiction over hearing this matter on the basis that this matter involves the temporary appointment to an academic office within the Respondent and the exclusive jurisdiction on such matters resides with the University Visitor pursuant to Charter of the University of the West Indies and or its successive amendments (‘the Charter’).
The Complainant does not refute that the Tribunal has the power to extend time, but contends that the Respondent's must also make an application for relief from sanctions. However, even if the Tribunal is minded to treat the application for an extension of time as an application for relief from sanctions, the Respondent has failed to put any evidence before the court upon which it could consider and or grant such relief. The Complainant relies on West Indies Players Association v. West Indies Cricket Board 7.
The Complainant disputes that the matter involves a function that falls within the exclusive jurisdiction of the University Visitor and contends instead that the matter involves a complaint
The Complainant further submits that no issue as to jurisdiction was taken when the matter was being conciliated at the Commission, and therefore it cannot betaken at the Tribunal stage
The Respondent in his Reply rebuts the submission of Complainant that West Indies Players Association v. West Indies Cricket Board is applicable and seeks to distinguish it on the basis that the tailpiece to Rule 7.17 of the ETR “… is precluded from making any such application during the proceedings.” (‘tailpiece’) removes the strictness of the interpretation of Part 9.7 of the CPR by Jones J 8 The Respondent suggests that the term “during the proceedings” should not be interpreted to mean from the initiation of the Complaint at the Tribunal and should be applied only to action taken after the close of pleadings and or the first hearing. It contends therefore that pleadings are not closed and there has been no hearing of the Complaint to date. Therefore it is not precluded from filing the jurisdictional application. It therefore concludes that West Indies Players Association v. West Indies Cricket Board is not applicable.
The Respondent further rebutted that Equal Opportunity Commission v. The Attorney General 9 was not applicable, as it is not authority for the submission that where an objection is not raised at the Commission it cannot be taken at the Tribunal.
Rules 7.13–7.17 of the ETR
Rules 7.13–7.17 of the ETR treat with the procedure for disputing the Tribunal's jurisdiction.
They provide —
“ 7.13 A Respondent who wishes
(a) to dispute the Tribunal's jurisdiction to try the complaint; or
(b) to argue that the Tribunal should not exercise its jurisdiction, may apply to the Tribunal by notice for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.
7.14 A Respondent who wishes to make such an application must first enter an appearance.
7.15 An application under this subrule must be made within the period for filing a defence.
7.16 An application under subrule 7.15 must be supported by evidence.
7.17 If the Respondent
(a) enters an appearance; and
(b) does not make such an application within the period for filing a defence,
he is treated as having accepted that the Tribunal has jurisdiction to try the complaint and is precluded from making any such application during the proceedings.
Part 9.7 Rules (1) — ( 5) of the CPR set out the procedure for disputing the court's jurisdiction as follows —
“Procedure for disputing court's jurisdiction
9.7 (1) A defendant who wishes—
(a) to dispute the court's jurisdiction to try the claim; or
(b) to argue that the court should not exercise its...
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