The Equal Opportunity Tribunal (EOT) and its chairman Donna Prowell-Raphael have challenged a judge’s decision to grant EOT lay-assessor Veera Bhajan leave to pursue a judicial review lawsuit against them for allegedly blocking her from taking up her appointment.
In the application, filed last Monday lawyers for the EOT and Prowell-Raphael claim that High Court Judge Avason Quinlan-Williams should set aside her decision to grant Bhajan leave to pursue the judicial review lawsuit because Bhajan and her legal team did not disclose pertinent evidence central to the case before Quinlan-Williams made the preliminary determination on September 22.
The application was raised when the case, which is set to go on trial on November 12, came up for virtual hearing before Quinlan-Williams yesterday afternoon. Senior Counsel Alvin Fitzpatrick, who leads Bhajan’s legal team, submitted that the application should be heard and determined simultaneously with Bhajan’s substantive case to save time and legal expenses.
Attorney Rishi Dass, who led the legal team for the Office of the Attorney General, supported Fitzpatrick’s position as he noted that Quinlan-Williams had the discretion to decide how to deal with the application based on her previous case management directions.
Dass suggested that it would be counterproductive to split the case as the EOT and Prowell-Raphael could delay the hearing of the substantive issues if Quinlan-Williams rejected the application and they chose to appeal the decision.
Responding to the submission, the EOT and Prowell-Raphael’s attorney Ramesh Lawrence Maharaj, SC, denied that the application was designed to delay the case. “I am surprised that they believe this application was filed to delay any matter. This is a serious matter with serious issues involved,” Maharaj said.
He also questioned whether both the application and the substantive lawsuit can be heard at the same time.
“It would be unjust and inconsistent with the overriding objectives,” Maharaj said. After hearing the submissions, Quinlan-Williams agreed with Bhajan and the AG’s Office and ruled that both would be dealt with simultaneously.
According to her court filings, obtained by Guardian Media, the issue arose after Bhajan received her appointment from President Paula-Mae Weekes on March 17. Bhajan claimed that she made numerous attempts to contact the tribunal in order to take up her appointment before Prowell-Raphael responded on May 19.
In the correspondence, Prowell-Raphael claimed that her services were not required as the tribunal did not have the “financial wherewithal” to accommodate a second lay-assessor and that the tribunal’s current work flow did not require it.
Prowell-Raphael also accused Bhajan of using improper channels to enquire about her position.
In a legal opinion issued by the tribunal’s legal research officer Mintri Beharrylal on August 26, the tribunal claimed that the President was wrong to appoint Bhajan, as she (Bhajan) did not have sufficient qualifications for the post as required under the Equal Opportunity Act (EOA).
Beharrylal claimed that when Bhajan was first appointed, Prowell-Raphael informed the President that she (Bhajan) did not qualify for appointment as she did not have the prerequisite of 10 years experience as an attorney.
She claimed that after the communication, the President revoked the appointment and reappointed Bhajan based on having combined experience in law and social work for 10 years. She alleged that Bhajan still did not qualify under combined experience.
The opinion also stated that Prowell-Raphael had a legitimate expectation to be consulted by the President before the appointment and would have pointed out deficiencies in candidates.
Through the lawsuit, Bhajan is seeking a series of declarations against the tribunal and Prowell-Raphael that they acted in excess of their jurisdiction and in abuse of their power. She is also seeking an order quashing the decision and another mandating that she take up the appointment.
Bhajan, who is claiming that she quit her law practice to take up her appointment, is also seeking compensation for the monthly remuneration she was supposed to receive after being appointed.
While the Office of the Attorney General was listed as a respondent to Bhajan’s claim, it supported her legal action when her attorney Rajiv Chaitoo wrote to it before filing the lawsuit.
The AG’s Office said that it could not rectify the situation as it had no power over the tribunal or Prowell-Raphael.
Under the EOA, the tribunal consists of a Chairman and two lay-assessors appointed by the President. While the Judicial and Legal Service Commission (JLSC) advises the President on the appointment of the Chairman, the lay-assessors are selected solely by the President.
The tribunal is mandated to hear and determine discrimination complaints under the legislation, which are referred to it by the Equal Opportunity Commission. Bhajan, who was born without arms, was awarded the Hummingbird Medal (Silver) in 2011.
She is also being represented by Rajiv Persad, Michael Rooplal, Shari Fitzpatrick, and Gabriel Hernandez.
The EOT and its chairman are also being represented by Leon Kalicharan, Kiel Taklalsingh, and Karina Singh.