NEXT Tuesday, an Appeal Court judge will rule on the Equal Opportunity Tribunal (EOT) and its chairman's request for a stay of the lawsuit brought against it by lay assessor Veera Bhajan over her not being able to take up her position.
The EOT and chairman Donna Prowell-Raphael asked for a stay of the proceedings before Justice Avason Quinlan-Williams to appeal her refusal to hear their application to set aside the permission she gave Bhajan to advance her judicial review claim.
In her ruling, Quinlan-Williams said she will hear the setting-aside application together with Bhajan’s claim when the matter goes to trial on November 12.
On Monday, Justice of Appeal Malcolm Holdip said he will give his decision on the stay application on November 9.
In their setting-aside application, the EOT and Prowell-Raphael complained that Bhajan, in her ex-parte application for leave, left out critical information.
Bhajan was granted the court’s permission to challenge a decision by the EOT and Prowell-Raphael not to comply with an appointment by President Paula-Mae Weekes and let her take up her position.
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.
In its appeal against Quinlan-Williams’s order, the EOT and its chairman are challenging her decision to hear both matters together in November.
The appeal alleges bias on part of the judge. They said their setting-aside application was likely to succeed and the judge was required to hear it, give a ruling on it and then hear the claim for judicial review if they were unsuccessful in getting her to reverse her permission to Bhajan to pursue her claim.
Bhajan is represented by a team of attorneys led by Alvin Fitzpatrick, SC, which includes Rajiv Persad, Michael Rooplal, Shari Fitzpatrick, Rajiv Chaitoo, Clay Hackett and Gabriel Hernandez.
Representing the EOT and its chairman are 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.
In the appeal, the EOT has complained that the judge did not give any reason for not hearing their setting-aside application. They now want her decision to hear both matters together set aside and another judge to hear their setting-aside application.
In its setting-aside application, the EOT and its chairman also complained that Bhajan omitted to provide the court with pertinent information about her appointment, and failing to do so gave her an unfair advantage when leave was being considered.
She was accused of failing to provide her resume to show she had the requisite experience for the position of lay assessor, and maintain her appointment 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 that 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. Prowell-Raphael maintained that Bhajan was told she could not assume duties until the tribunal was reopened and functional.
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 to contact the tribunal several times by phone and e-mail 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.
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 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.