AN Appeal Court judge has ruled the Equal Opportunity Tribunal (EOT) and its chairman failed to establish any “special circumstances” to justify the staying of the lawsuit brought against it by lay assessor Veera Bhajan over her not being able to take up her position.
As a result, Friday's trial will proceed as directed by the trial judge.
The EOT and chairman Donna Prowell-Raphael had 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 a written ruling on Tuesday, Justice of Appeal Malcolm Holdip agreed with the submissions by Bhajan’s attorneys and the Attorney General that was he was asked to do would only serve to “delay” the short, fixed timeline to trial set by Quinlan-Williams.
Bhajan’s lawsuit will go on trial on Friday. Holdip also reminded that the Court of Appeal does not lightly interfere with a first instance court’s case management decision.
He said the EOT and its chairman failed to identify any consequence of the rolled-up hearing of both Bhajan’s judicial review claim and the challenge to the permission she received from the judge to advance her lawsuit. He said if a stay was granted, it would deprive Bhajan of a timely determination of her claim since written submissions had already been filed and exchanged and all that was left was the hearing on Friday.
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.
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.
The matter before Holdip was also dismissed with costs which means the EOT and its chairman will have to pay for Bhajan and the AG’s costs for defending the stay 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.