Appeal Court upholds Veera Bhajan ruling against Equal Opportunity Tribunal, chairman

The Court of Appeal has upheld a High Court ruling in favour of Veera Bhajan, who challenged the refusal of the Equal Opportunity Tribunal (EOT) to recognise her appointment as a lay assessor.

In a ruling on February 26, Justices of Appeal Mira Dean-Armorer, Vasheist Kokaram and Malcolm Holdip affirmed the High Court’s ruling, including an award for damages, but overturned the finding on legitimate expectation.

The judgment’s opening line read, “This was a tale of two powerful ladies in public life.”

Bhajan was appointed a lay assessor by the President in March 2021.

However, the tribunal’s chairman, Donna Prowell-Raphael, refused to allow Bhajan to assume her duties, citing a lack of necessary resources to support her position.

Prowell-Raphael also raised an issue with Bhajan’s qualifications.

After months of waiting and failed negotiations, Bhajan initiated judicial review proceedings, arguing that the chairman acted illegally, in bad faith, and in breach of her legitimate expectations.

In a strongly worded judgment on November 23, 2021, Justice Avason Quinlan-Williams ruled in Bhajan’s favour, criticising Prowell-Raphael’s actions as an abuse of power.

Quinlan-Williams ordered that Bhajan be recognised in her position and awarded her damages for her humiliation and embarrassment.

Quinlan-Williams wrote, “There are times when one seeks a reason or a motive to explain the inexplicable…”

She admitted it was a difficult judgment to write, not because of the facts, which she said were easy to find and “resoundingly spoke for themselves,” but because, “At a certain point, as much as I tried to quiet my mind, I kept hearing the words of one sound over and over; they were from General Grant, ‘Pure hate and acting normal. Pure hate and acting normal. Tell them pure hate and acting normal.’”

The judge also suggested the EOT’s chairman “in a quiet time, reflect on whether she is the best fit for the chair of the Equal Opportunity Tribunal.”

Quinlan-Williams continued, The claimant is entitled to be seated from the time of her appointment by the president as a lay assessor. Yet the first and second defendants continue their pursuit, viciously at times and with different excuses in their efforts to prevent the claimant from assuming office as a lay assessor. Even when pressed during these proceedings, they persisted.

“There was no regard to the institution of the Equal Opportunity Tribunal and the impact on the institutionalisation of the Tribunal.

“No regard to the mandate of the Equal Opportunity Tribunal to prevent discrimination and to promote equal opportunities for persons of unequal status. No regard as to how it will look to the rest of us that a person who was lawfully appointed by Her Excellency cannot get her just dues from the Equal Opportunity Tribunal and the chair of the Equal Opportunity Tribunal.”

Prowell-Raphael appealed the ruling on multiple grounds, including allegations of judicial bias and procedural errors. However, the Court of Appeal dismissed the appeal, ruling there was no reasonable basis to conclude Quinlan-Williams was biased in her ruling.

Dean-Armorer, who wrote the unanimous decision, said there was no appearance of bias on the judge’s part from the moment Bhajan sought the court’s permission to pursue her lawsuit against the EOT and its chairman. She also noted the public would have been aware of the issues leading up to Bhajan taking legal action, including a plea by then-President Paula-Mae Weekes to Prowell-Raphael “to avoid opening the tribunal to the accusation of ableism,” in response to Bhajan’s complaints she was not able to assume duties.

“In my view, the fair-minded and informed observer would not find any possibility that the strong and passionate remarks were based on anything other than the facts played out in the affidavits filed before the judge.

“The real possibility would be that the judge was outraged by the treatment meted out to the claimant and her outrage was expressed in her language.

“In our view, that would be the conclusion of the fair-minded informed observer.”

Although admitting they did not condone “such intemperate language,” the Appeal Court said they did not view Quinlan-Williams as biased.

The Appeal Court judges said on the evidence, “There was a strong indication of hostility on the part of the chairman.

“The hostility manifested itself in her persistent refusal to speak with or meet with Ms Bhajan.

“It manifested itself in the letter of May 3, 2021, to her Excellency calling for the removal of Ms Bhajan.

“The chairman’s hostility achieved a climax, however, in her letter of May 19, 2021, to Ms Bhajan.

“This letter was not only stern but was decidedly hostile and was designed to communicate to Ms Bhajan that there was no room for her on the tribunal.”

They said they could not fault Quinlan Williams's finding of bad faith and also dismissed the chairman’s contention Bhajan failed to alert the court that her initial instrument of appointment had to be recalled since it said she had been in practice for 10 years.

“Indeed, the court’s attention was not drawn to the flawed first appointment or the absence of Ms. Bhajan’s CV,” Dean-Armorer said.

However, she said the judge’s finding there was no material non-disclosure after assessing the evidence was reasonable.

The Court of Appeal also held that the EoT and its chairman acted outside their authority by refusing to recognise Bhajan’s appointment.

“In our view, the Presidential instrument of appointment prevails over any administrative practices.

“Public offices must give effect to the instrument of appointment without delay unless such delay is envisaged in the legislation.”

Dean-Armorer said, by failing to give effect to Bhajan’s presidential appointment, Prowell-Raphael and the tribunal “acted illegally.”

Her actions were also an abuse of process.

“The relevant evidence depicted a chairman who was obstinate in her view that Ms Bhajan should not assume the duties of the office to which she had been appointed.

“She remained inflexible in the face of persistent requests on the part of Ms Bhajan and in the face of the intervention of Her Excellency the President.

“It was within the power of the chairman to delay the assumption of duties of Ms Bhajan indefinitely and that is exactly what the chairman did until she was compelled to capitulate by the process of the court,” the ruling said.

The tribunal’s argument that it lacked resources was also deemed irrelevant, as it had no discretion to override a presidential appointment.

The Attorney General did not challenge any of the court’s findings.

The Court of Appeal also upheld the court’s award of damages. Newsday was told this is yet to be quantified.

In March 2024, Bhajan was re-appointed as a lay assessor of the EoT by President Christine Kangaloo.

Ramesh Lawrence Maharaj, SC, Kiel Taklalsingh and Karina Singh represented Prowell-Raphael and the tribunal.

Alvin Fitzpatrick, SC, Shari Fitzpatrick and Rishi Persad, SC, represented Bhajan while Rishi Dass, SC, represented the AG.