THE High Court judge hearing Equal Opportunity Tribunal (EOT) lay assessor Veera Bhajan’s challenge over her not being able to take up her position will also hear an application complaining of her failure to provide critical information to the court when the matter goes to trial next month.
Bhajan was granted the court’s permission to challenge a decision by the EOT and its chairman, Donna Prowell-Raphael, not to comply with an appointment of President Paula-Mae Weekes and let her take up her position.
The matter is being heard by Justice Avason Quinlan-Williams and will go to trial on November 12.
However, the tribunal and its chairman filed an application asking the judge to set aside the leave she granted on the basis that Bhajan in her ex-parte application left out critical information.
The setting-aside application also alleged that the judicial review claim was premature since the tribunal remains inoperable because of the covid19 pandemic and other infrastructural problems.
Bhajan is represented by a team of attorneys led by Alvin Fitzpatrick, SC, and includes Rajiv Persad, Michael Rooplal, Shari Fitzpatrick, Rajiv Chaitoo, Clay Hackett, and Gabriel Hernandez.
Representing the EOT and its chairman is Senior Counsel Ramesh Lawrence Maharaj and attorneys Kiel Taklalsingh, Leon Kalicharan, and Karina Singh.
The Attorney General is represented by Rishi Dass, Svetlana Dass, and Karissa Singh.
At a hearing on Tuesday, Fitzpatrick and Dass resisted the setting-aside application being heard separately and asked that it be heard at the trial to save on time and expense.
Fitzpatrick said separating the two would likely result in a delay while Dass reminded the court that her case management directions for the filing of affidavits had not been appealed so the trajectory to trial was not altered.
In his submissions, Maharaj maintained it was not an application to delay the trial, insisting leave should be set aside since Bhajan failed to disclose material facts to the court when she sought permission to take her lawsuit further.
“The non-disclosure is serious non-disclosure.” He said it would not be proper to treat the setting-aside application as a rolled-up hearing with the review claim. He said if he was successful then there would be no claim to go forward and the applicant was free to file a new application
“I cannot see conceptually how the claim could continue if leave is set aside. I cannot see how you can hear an application to set aside and the merits of the claim at the same time. It would be unjust and inconsistent.”
After hearing all three sides, Quinlan-Williams said she was satisfied that the best use of the court’s resources would be to hear the application and the review claim at the same time.
In its setting-aside application, the EOT and its chairman have complained that Bhajan omitted to provide the court with pertinent information relating to her appointment and by failing to do so put her at an unfair advantage when leave was being considered.
She was accused of failing to provide her resume to show that she had the requisite experience for the position of a lay assessor.
The tribunal and its chairman pointed to representations made to the President when Bhajan was first appointed that she did not have the ten years of legal experience. It said the appointment was revoked and she was re-appointed on the basis she had a combined ten years of experience in both law and social welfare. The EOT maintains the reappointment was ultra vires.
It also said Bhajan failed to tell the court at the leave stage she was engaged in other paid work despite her saying she had to close down her private law practice to take up the lay assessor appointment.
In support of the argument, the legal action was premature, Prowell-Raphael also went on affidavit to say it was not in dispute that the tribunal was closed and not functional owing to logistical and infrastructural challenges.
It has not been able to hear any matters and the physical building cannot facilitate virtual hearings because it has no internet and does not allow for physical distancing because of its limited space.
Pointing out that a lay assessor’s job was to assist the chairman in arriving at decisions, the EOT and its chairman said there was no duty to assume if there were no hearings.
Prowell-Raphael maintained that Bhajan was told she could not assume duties until the tribunal was reopened and functional.
The setting-aside application said the tribunal and its chairman were being forced to facilitate something it was unable to do. It also complained of scarce financial resources and its chairman has gone begging of the Chief Justice and two government ministers for additional funding and space to hold virtual hearings.
The building at Manic Street, Chaguanas, also has no electrical certification after its meter was removed following an electrical burnout, the application said.
It also said the now non-functional elevator has, in the past, stuck between floors and plans to relocate the tribunal to the Waterfront Centre in Port of Spain now appeared to be in abeyance.
Bhajan, an attorney, received a three-year appointment on March 17.
She says she has been unable to take up the job since she took her oath, has not been given any information, is being treated with “scant regard,” and has not been paid for six months.
Bhajan, who was awarded the Hummingbird Medal (Silver) in 2011, says she is being blocked from taking up the position and has accused the EOT and its chairman of acting in bad faith and in excess of their jurisdiction, depriving her of a legitimate expectation by failing to comply with the law.
Bhajan, who was born without arms, said after receiving her instrument of appointment, she tried several times by phone and e-mail to contact the tribunal about beginning her work there.
She said she was eventually told the tribunal did not have the “logistic and or financial wherewithal” to accommodate another lay assessor.
Prowell-Raphael also allegedly said she did not require an additional lay assessor on the basis of the tribunal’s limited workflow at the time.
Bhajan also wrote to the President and informed her of what had happened. She was told the matter had been referred to the relevant authorities and that in principle the President cannot reasonably object to her considering her legal options.
Bhajan maintains she remains lawfully appointed by the President as lay assessor of the EOT and has not been fired nor has her appointment been revoked by any court or by the provisions of the Equal Opportunity Act.
She will be asking the court to make several declarations that the acts of the tribunal and its chairman were null and void and go against the law.