Samuel Johnson v Tobago Regional Health Authority

• Jurisdiction: Trinidad & Tobago
• Judge: HH Donna Prowell-Raphael,Lay-assessor Veera Bhajan
• Judgment Date: 08 December 2023
• Docket Number: E.O.T. No. 0001 of 21
• Court: Equal Opportunity Tribunal (Trinidad and Tobago)

BETWEEN

Samuel Johnson

Complainant

and

Tobago Regional Health Authority

Respondent

Panel:

HH Donna Prowell-Raphael, CEOT.

Lay-assessor Veera Bhajan

E.O.T. No. 0001 of 21

EQUAL OPPORTUNITY TRIBUNAL

Appearances:

Crystal S. S. Paul Instructing Attorney at Law for the Complainant.

Matthew Gayle Advocate Attorney at Law for the Complainant

Myrna D. A. Walters Filing Attorney at Law for the Respondent

Lennox C. Phillips Jr. Advocate Attorney at Law for the Respondent

CONTEXT

1. By Notice of Application dated the 28^th June, 2022, (‘the second application’) the complainant sought the following principal relief:

“1. Pursuant to Rule 24.1 of the Rules of Practice and Procedure 2016 of the Equal Opportunity Tribunal and Rules 27.9 (4) and (5) of the Consolidated Civil Proceedings Rules 2016 (as amended) (“the CPR”) that time is extended for the filing of the Complainant's Complaint and Particulars thereof from the 14th. day of February 2022 to on or before the 8th day of July 2022;

2. That time be extended for the Respondent to file and serve its Defence from 28th day of March 2022 to the 12th day of August 2022.

3. That time be extended for the Complainant to file and serve a Reply (if any) from the 16th day of May 2022 to on or before the 16th day of September 2022.”

2. The process for instituting a complaint before the Equal Opportunity Tribunal (‘the Tribunal’) under the Equal Opportunity Act1 (‘EOA’), is bifurcated. Initially, the Equal Opportunity Commission (‘EOC’) starts the proceedings by referring an unresolved complaint on behalf of the complainant to the Tribunal for determination2. Once the EOC has referred the complaint to the Tribunal the

matter proceeds between the disputing parties3. The procedural steps are as follows:

• (i) The EOC files a ‘Referral of Unresolved Complaint’ with the Tribunal4;

• (ii) The Tribunal, upon receipt of the referral, issues a case management order that fixes deadlines for the filing and service of the initial pleadings, which include the Complaint, the Defence and any subsequent Reply; and

• (iii) The Tribunal schedules a directions or case management hearing.

3. In the instant case, having received the Referral of Unresolved Complaint dated

29^th November, 2021, from the Commission, the Tribunal issued an Order dated 8^th December, 2021, (‘the first order’) giving directions for the filing and service of pleadings and fixing a hearing for 7^th June, 2022. The Complaint and Particulars thereof (‘the Complaint’) were to be filed and served on or before 31^st January, 2022, the Defence on or before 14^th March, 2022 and Reply (if any) on or before 25^th April, 2022.

4. The complainant did not comply with the first Order for the filing of his Complaint and has since made two (2) consecutive applications for extensions of time to file and serve the Complaint.

5. The complainant, by the first Notice of Application dated 31st January, 2022, (‘the first application’) requested an extension of time until 14th February, 2022 to file and serve the Complaint. This extension was granted by an Order dated 7th February, 2022, (‘the second order’). The respondent did not take any objection to the first Notice of Application and no sanctions were ordered. However, the complainant failed to comply with the stipulations of the second order as well.

6. In preparation for the hearing on 7^th June, 2022, the parties were contacted by the Tribunal regarding the documents to be filed in the proceedings. Consequently, a Notice was issued by the Tribunal vacating the hearing fixed for 7^th June, 2022 and a Case Management Conference fixed for 7^th October, 2022, to permit the parties to determine whether they intended to progress the matter.

7. In the interim, the complainant filed the second application by which he applied for a further extension of time to 8^th July, 2022 to file and serve his Complaint. This application was supported by an Affidavit of Crystal S. S. Paul, Instructing Attorney at Law for the complainant (‘Instructing Attorney's affidavit’).

8. The respondent's Attorney gave Notice via email dated 6^th July, 2022 that the respondent objected to the second application. Nevertheless, the Complainant filed a purported Complaint and Particulars thereof on 13^th July, 2022. Orders giving directions for the filing and service of Written Submissions for the hearing of the second application were made by the Tribunal and complied with by the parties. Oral arguments were heard on 21^st March, 2023.

ISSUES FOR DETERMINATION

9. The issues for determination may be summarised as –

• (i) What is the process for initiating proceedings under the Equal Opportunity Act (EOA)?

• (ii) What are the differences between the Equal Opportunity Tribunal Rules (‘EOTR’) and the Civil Proceedings Rules, 1998 (‘CPR’) with respect to the start of proceedings?

• (iii) What are the consequences of non-compliance with the Tribunal's order for the filing of the Complaint?

ANALYSIS AND LAW

10. I have duly considered the second application, the Instructing Attorney's Affidavit and the written and oral submissions of the parties. I find that there are no material differences in fact that need to be resolved by the Tribunal in deciding in these proceedings.

11. I have also considered the relevant sections of the EOA5, EOTR' 1.56 and 24.17. Notably EOTR 24.1 stipulates that, in instances where the EOTR do not provide specific guidance, “the existing rules of the Supreme Court of Trinidad and Tobago shall apply mutatis mutandis”.

12. Having regard to the EOTR 1.5 and 24.1, I have taken into consideration Parts 1 and 26 of the CPR. Part 18 of the CPR, prescribes the court's overriding objective to adjudicate cases in a just manner and Part 26 of the CPR treat with the court's

case management powers and procedure. Although Parts 1 and 26 of the CPR do not have express counterparts in the EOTR, they are applicable mutatis mutandis to matters before the Tribunal, pursuant to Rule 24.1 of the EOTR.

13. I have further considered the seminal cases that have been decided conjointly on CPR 1.1 and 26, in particular Attorney General v. Keron Matthews9, Roland James v. The Attorney General of Trinidad and Tobago10, Dr. Keith Rowley v. Anand Ramlogan11, Crick and anor. v. Kurt Brown & Phillip v. Commissioner of Police and anor12 and Christian Ramdhanie v. The Attorney General of Trinidad and Tobago13. I have relied, in large part, on the Court of Appeal decisions of Roland James v. The Attorney General of Trinidad and Tobago, Dr. Keith Rowley v. Anand Ramlogan and the Privy Council decisions of Attorney General v. Keron Matthews and Crick and anor. v. Kurt Brown & Phillip v. Commissioner of Police and anor (from the Court of Appeal of Trinidad and Tobago).

14. I have compared Rule 514 of the EOTR, which provides the procedure for the start of proceedings at the Tribunal by the EOC, with Part 815 of the CPR, which provides how to start proceedings in the High Court. I have observed that there is a fundamental divergence in the initiation of proceedings at Tribunal compared to the High Court. At the Tribunal, the EOC refers proceedings on

behalf of the complainant, following none or unsuccessful attempts at conciliation of the initial complaint lodged with the EOC16.

15. The subsequent submission of the Complaint and its Particulars is dictated by the Order issued by the Tribunal upon receipt of the referral. Conversely, in the High Court, the proceedings are initiated directly by the aggrieved party through the filing of a Claim Form and Statement of Case. Consequently, there is no necessity for the High Court to issue directions at this stage, as relevant deadlines with respect to the filing of the initiating documents CPR are triggered by the claimant's filing of the Claim Form. It is noteworthy that, while the EOC may start proceedings at the Tribunal by referring a complaint, the proceedings are contingent upon the complainant's filing of the complaint.

16. Additionally, and of significant importance, by virtue of the integration of the CPR by EOTR 1.5 and 24.1, the Tribunal is empowered to impose sanctions pursuant to CPR 26.6(1)17 within the initial Order for the timely filing of the Complaint. In instances where a penalty or sanction may have been imposed in the Order, and the complainant subsequently fails to adhere to the stipulations in filing their Complaint, they are consequently obligated to seek relief from sanctions under CPR 26.718. However, in circumstances where no sanctions were expressly

imposed in the relevant Orders, the party in breach would be subject to the court's broad case management powers under CPR 26.119. In such an event, the non-defaulting party has the right to make an application under CPR 26.320.

17. In Crick and anor. v. Kurt Brown & Phillip v. Commissioner of Police and anor, in which the Privy Council dealt with the issue of how a court (in this case the Court Appeal) should treat with non-compliance with a direction or court order when no sanction or consequence was imposed in the order Lord Sales21 stated –

“24… In the Civil Procedure Rules for Trinidad and Tobago the term “sanction” has a precise and specific meaning. It refers to a sanction stipulated by a rule or order of the court itself, for breach of the rule or failure to comply with the order: see

Attorney General of Trinidad and Tobago v Keron Matthews [2011] UKPC 38, paras 15-16; Roland James, para 19. The directions issued by Mohammed JA in the present cases were in conventional form and did not stipulate a sanction as penalty for noncompliance with them. The effect of this was that, if there was non-compliance with the directions and a question arose how the court should proceed in the light of that, the party who failed to comply would be subject to the general case management power of the court under CPR Part 26.1. That power would fall to be...