Judicial Review of Human Rights Cases – Recent Key Decisions
By George Waggott, partner, McMillan LLP
Prepared for the OBA 2013 Annual Human Rights Update
1.
Introduction
The Canadian courts have continued to shape our evolving human rights jurisprudence. This
paper is intended to provide context for other presenters, with the goal being to survey certain
key cases decided during 2012 and 2013. As this overview will hopefully demonstrate, the courts
have continued to be quite engaged with the approach being followed by tribunals as they
continue to address both procedural and substantive aspects of human rights cases.
2.
Johnstone:
The Reasonableness
Discrimination Protections
Standard and
Purposive
Approach to
The recent decision of the Federal Court of Canada in Canada (Attorney General) v. Johnstone1
provides helpful guidance about the appropriate standard of review with respect to the decisions
of Canadian human rights tribunals. While the Johnstone decision focused on the topic of
discrimination on the basis of family status as provided for under the Canadian Human Rights
Act, there are arguably a number of important concepts arising from the Federal Court’s decision
which are of more general application.
The lengthy process of seeking redress which Fiona Ann Johnstone has been involved with dates
back to 2004, when she sought accommodation with respect to her shift schedules while working
for the Canadian Border Services Agency (“CBSA”). In essence, Johnstone, who was returning
from work following a maternity leave, asked for a fixed shift schedule as opposed to the
rotating schedule which other employees are generally assigned to. In conjunction with this
request, Johnstone sought to be scheduled for a sufficient number of hours to be treated as fulltime so that she would therefore be entitled to benefits and other opportunities for advancement.
While the CBSA agreed to schedule Johnstone on a fixed shift basis, she was not given sufficient
1
2013 FC 113 (“Johnstone”).
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hours to qualify as a full-time employee. Before the matter was adjudicated by the Canadian
Human Rights Tribunal, there was an initial round of judicial review and appeal based on how
the Canadian Human Rights Commission decided at the screening stage that it would not refer
the complaint to a hearing.2 Eventually, the Tribunal heard the matter and allowed Johnstone’s
human rights complaint.
Standard of Review
The findings of the Federal Court in the (second) Johnstone decision which dismissed the
Attorney General of Canada’s application for judicial review are consistent with the broad trend
of deference by Canadian courts to the decisions of human rights tribunals. The Court confirmed
that the relevant standards of review of tribunal decisions will continue to be guided by the
Supreme Court of Canada’s decision in Dunsmuir,3 which recognizes that certain matters will be
reviewed to a standard of correctness, and others will be reviewed on the basis of reasonableness.
In this regard, deference will continue to be generally appropriate where a tribunal is interpreting
its home statute or the tribunal has developed a particular expertise.
With respect specifically to decisions of the Canadian Human Rights Tribunal, the Court in
Johnstone noted the important guidance provided by the decision in Mowat4, which affirms the
reasonableness standard which applied to review of the Tribunal’s determination on the issue of
awarding costs. The Court proceeded to adopt similar reasoning with respect to the interpretation
of the Canadian Human Rights Act5, finding that an interpretation of “family status” falls within
those matters which are within the home statute of the Tribunal. Further, as the Tribunal was
adjudicating within its own area of expertise on a question which did not relate to jurisdictional
boundaries, the standard of review of reasonableness applied.
Given that the review of the Tribunal’s findings with respect to there being prima facie
discrimination involves the application of the law to the particular facts of the case, the
2
Johnstone v. Canada (Attorney General), 2007 FC 36, and Canada (Attorney General) v. Johnstone, 2008 FCA 101.
3
Dunsmuir v. New Brunswick, 2008 SCC 9.
4
2011 SCC 53.
5
RSC 1985, c H-6.
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determination is one which is a question of mixed law and fact. Accordingly, following the
framework from Dunsmuir, the Federal Court confirmed that the standard of reasonableness was
thereby invoked. The Court proceeded to adopt the same reasoning with respect to the standard
of review applicable to the Tribunal’s decisions on remedies.
Legal Test for Discrimination
The appellant Attorney General of Canada also unsuccessfully attempted to argue that the
Tribunal erred in considering Ms. Johnstone’s complaint by not adopting the proper legal test for
establishing a prima facie case of discrimination based on family status. The Court’s rejection of
this argument was founded on its application of the legal test articulated in O’Malley,6 which
holds as follows:
A prima facie case in this context is one which covers the allegations made in
which, if they are believed, is complete and sufficient to justify a verdict in the
complainant’s favour in the absence of an answer from the respondent employer.
Based on this framework, the Court upheld the Tribunal’s determination that Ms. Johnstone had
been subjected to discrimination.
Outcome and Implications
Requests by employees for accommodation both to include due consideration for relevant family
obligations and childcare, and to expand the scope of the resulting duty of employers to accede
to requests for flexibility, are potentially wide-ranging. One aspect which has perhaps not yet
been fully considered is the specifics of how this decision may apply to other workplaces. In this
regard, it is important to note that that the operations of the respondent employer, CBSA, are
effectively staffed on a 24-hour, 7 day a week basis with a large number of employees, so the
argument that “the work is not available” was untenable. In addition, Ms. Johnstone was able to
proffer evidence before the Tribunal that other employee scheduling requests, including for
6
Ontario Human Rights Commission v. Simpson-Sears Limited, [1985] 2 SCR 536.
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religious accommodation or medical reasons, had been accommodated with solutions similar to
what she had requested.
A number of the broad statements by the Court in Johnstone are likely to be adopted at the
federal and provincial tribunal level going forward. In particular, the case provides current
confirmation that human rights legislation will continue to have quasi-constitutional status. In
this regard, the legislation will continue to be considered in accordance with the stated purpose in
the relevant statutes, with any interpretation issues being decided in a manner consistent with the
stated objectives of the legislation, which include being remedial. The Johnstone decision also
provides useful guidance on what, on a practical basis, a “reasonable” decision involves – the
Tribunal’s approach to the complaint involved a reasoned or considered approach that was based
on the evidence before the Tribunal. Accordingly, the findings of discrimination were ones
which were matters based on clear facts and the application of the Act to those facts.
One aspect of the Johnstone decision which did involve success for the appellant related to one
of the remedial orders of the Tribunal. In particular, the CBSA successfully challenged the
remedy which required the employer to establish written policies satisfactory to Ms. Johnstone
and the Canadian Human Rights Commission. The Federal Court held that although the Tribunal
has broad remedial authority, there is no basis in the legislation to issue an order which provides
that a person who has been subjected to discrimination is thereby entitled to have a right to
participate in the development of remedial policies. As such, this specific item was found to have
exceeded the Tribunal’s bounds of jurisdiction. This shows a vivid example of a matter where a
decision which is “incorrect” will be overturned regardless of the circumstances giving arise to
the order.
3.
Whatcott: Careful Scrutiny of What Reasonableness Means
The scope of review of human rights decisions was closely examined by the Supreme Court of
Canada in its decision in Whatcott.7 The underlying conduct which was the subject of the
complaint which was judicially reviewed involved the distribution of flyers which contained
7
Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 (“Whatcott”).
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content which was critical of homosexuals and four resulting complaints filed with the
Saskatchewan Human Rights Commission. The complainants alleged that the flyers, which Mr.
Whatcott had distributed in 2001 and 2002 on behalf of Christian Truth Activists, promoted
hatred against individuals on the basis of their sexual orientation. The first two flyers were
entitled “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public
Schools”. The other flyers were identical to one another and were a reprinted classified ads with
handwritten comments.
At issue in the case before the Saskatchewan tribunal was the extent to which the content of the
flyers and the legislative prohibitions related to this material constituted a reasonable restriction,
particularly when considered in the context of Mr. Whatcott’s freedom of religion and
expression. The tribunal appointed to hear the complaints held that the flyers constituted
publications that contravened section 14 of the Saskatchewan Human Rights Code8 because they
exposed persons to hatred and ridicule on the basis of their sexual orientation. The Tribunal
considered this in the context of Mr. Whatcott’s right to freedom of religion and expressly held
that the relevant provision in the Saskatchewan Code was a reasonable restriction.
The decision also thoroughly reviewed the definition of hatred, and confirmed that an objective
standard is to be applied as to “whether a reasonable person, aware of the context and
circumstances, would view [an] expression as likely to expose a person or persons to detestation
and vilification on the basis of the prohibited ground of discrimination.”9
Close Scrutiny of Decision
The Court’s review focussed on the wording of section 14 of the Saskatchewan Code, and
assessed whether or not these provisions were valid. The Court carefully examined the statutory
wording which prohibits conduct which “ridicules, belittles or otherwise affronts the dignity of”
individuals. The scrutiny of this prohibition was based on a Charter analysis, with a close line-
8
S.S. 1979, C.S-24.1 (the “Saskatchewan Code”).
9
SCC reasons at para 59, based on the reasoning in Canada (Human Rights Commission) v. Taylor [1990] 3 SCR 892.
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by-line review of the disputed publications used as a basis to assess whether or not the impugned
provisions of in the Saskatchewan Code minimally impaired the free speech rights of the author.
The decision to allow the complaint against Mr. Whatcott was the subject of a judicial review
application,10 where the Saskatchewan Court of Queen’s Bench upheld the Tribunal’s decision.
Kovach J. concluded that the relevant provision in the Saskatchewan Code must be interpreted in
accordance with the standard of hatred and contempt articulated in the leading case of Taylor. In
this regard, the Court of Queen’s Bench decision held that the hatred and contempt framework
applies so as to prohibit only “communication that involves extreme feelings of detestation,
calumny and vilification”.11 In upholding the Tribunal’s decision, Kovach J. held that the flyers
contravened the relevant provision, largely on the basis that the documents equated homosexuals
with pedophiles and child abusers.
The subsequent decision by the Saskatchewan Court of Appeal12 held that the provisions of
section 14 of the Saskatchewan Code were constitutional, but overturned the Tribunal’s decision
with respect to whether or not the conduct was prohibited. The appeal court panel found that the
flyers did not contravene the Saskatchewan Code and highlighted the importance of context,
including the genuine curriculum issues being considered at the time, and the necessity of
considering competing rights that might be in issue. Through concurring judgments, the Court of
Appeal emphasized the importance of carefully analyzing the alleged hate communication, and
drew a distinction between content which commented on a particular activity (in this case a type
of sexual conduct) as opposed to individuals (those of same-sex orientation). The concurring
judges all held that the right to express genuine beliefs on moral issues as part of a public debate
about schooling issues lies at the heart of protected speech. Thus, although the relevant
Saskatchewan Code provisions were reasonable, the specific findings of the Tribunal were held
to be wrong on the facts of the case.
10
2007 SKQB 450 (Can LII).
11
at para 21.
12
2010 SKCA26, 346 Sask. R. 210.
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Standard of Review
From the perspective of process, the Whatcott decision confirmed the recent trend of focussing
on the Dunsmuir framework in the context of judicial review. The timing of the appellate
decisions was, however, such that the Supreme Court of Canada was required to clarify the
appropriate standard of review as applied to the Tribunal’s interpretation of section 14 of the
Saskatchewan Code.13 The Court of Queen’s Bench and the Court of Appeal both adopted a
correctness standard based on the reasoning that the issues raised turned on important points of
law and interpretation of the Constitution. In applying the Dunsmuir framework, the Supreme
Court of Canada highlighted the principle of deference applicable to an administrative tribunal
when it is interpreting its home statute. In the specific case, the Tribunal’s decision was held to
be well within its expertise, and involved interpreting the Saskatchewan Code and applying it to
the facts before it. The decision involved an analysis based on the Taylor precedent regarding
hate speech, and otherwise did not involve questions of law that are of central importance to the
legal system outside its expertise. As a result, the Supreme Court of Canada held that the
standard of review with respect to whether or not the flyers contravened the Saskatchewan Code
must be reasonableness. This contrasts to the scrutiny applicable to the review of the
constitutionality of section 14 of the Saskatchewan Code, which is reviewable to the standard of
correctness.
Specific Outcomes
In considering the Tribunal’s specific decisions regarding the flyers, the Supreme Court of
Canada allowed the appeal in part. The conclusions in the first instance with respect to the first
two flyers were held to be reasonable based on applicable law regarding hate speech. The text of
these flyers was found to portray the targeted group as a menace and thus threatened the safety
and well-being of others. The documents also made reference to respected sources in an effort to
attempt to lend credibility to the views expressed. The Court also stressed that the specific
13
The Saskatchewan Court of Queen’s Bench decision was issued prior to the Supreme Court of Canada’s decision in
Dunsmuir.
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content created a tone of hatred. In the circumstances, it was not unreasonable for the Tribunal to
conclude that the flyers were more likely than not to expose homosexuals to hatred.
The outcome and finding against Mr. Whatcott did not apply to the other two flyers, where the
Court held that the Tribunal’s decision was unreasonable and could not be upheld. While the
content of the flyers was found to be offensive, the Tribunal was determined to have erred in
applying the provisions of the Saskatchewan Code to the facts before it based on the proper legal
test. The Court held that it could not reasonably be found that a reasonable person, aware of the
relevant context and circumstances, would consider the flyers to have exposed persons of samesex orientation to detestation and vilification. Taken together, these outcomes reflect the close
scrutiny which reviewing courts have applied in their review of decisions by human rights
tribunals.
4.
Dream Team: Deference to Tribunals on “Preliminary” Issues
A further example of the continued deference by courts to the decisions of human rights
adjudicators emerges from the decision in Dream Team.14 The City of Toronto sought judicial
review of two interim decisions of the Ontario Human Rights Tribunal which had refused the
City’s requests for early dismissal of the relevant application under the Ontario Human Rights
Code15 (the “Ontario Code”). In a succinct decision on behalf of a three person panel of the
Ontario Superior Court of Justice, Swinton J. dismissed the application for judicial review on the
basis that the decisions by the Tribunal were reasonable, and the application for judicial review
was premature.
The Dream Team is an organization which engages in advocacy with respect to supportive
housing. In their application to the Tribunal, the group sought to challenge a number of City of
Toronto zoning by-law provisions which impose restrictions on premises that are used as group
homes for persons with mental or physical disabilities. The Dream Team application claimed that
certain named individuals had experienced discrimination on the basis of disability both in
14
City of Toronto v. The Dream Team, 2012 ONSC 3904 (Can LII) (“Dream Team”).
15
R.S.O. 1990, c. H.19.
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relation to services and to occupancy of accommodation. They therefore argued that the City’s
by-law restrictions on the number and location of group living facilities had a negative impact on
their dignity, treatment, and ability to participate in the community. The remedy which the
applicants seek is to have the Tribunal order that the mandatory separation distances be removed
from the by-laws.
The City attempted unsuccessfully to have the application dismissed on a summary basis,
arguing that the Tribunal does not have jurisdiction to grant the remedy sought and that the case
does not disclose a prima facie case of discrimination. The City characterized the issue of
jurisdiction as a legal question which could be determined without evidence or factual context.
More specifically, the City submitted that the Tribunal could not grant the remedies sought, and
the by-laws could not be characterized as a “service” which attracted the protections from
discrimination contemplated by the Ontario Code. The Tribunal determined that it was premature
to consider the question of jurisdiction to award remedies without the proper evidentiary
foundation on what were admittedly novel issues, and held that the matter required full argument
at the end of a hearing. In making this decision, the Tribunal held that it was not plain and
obvious that the application was outside the scope of the Ontario Code.
Review of Tribunal’s Process
The City’s application for judicial review asserted that the Tribunal had been incorrect in how it
dealt with the jurisdictional issue at the preliminary stage. In framing the issue in this manner,
the City argued that the dispute involved a true question of jurisdiction which triggered review to
the correctness standard. The respondent and the Ontario Human Rights Commission, which
intervened in the case, successfully argued that the reasonableness standard of review applied
based on Dunsmuir. In upholding the approach followed by the Tribunal, the Court noted that the
jurisdictional question had yet to be decided, and no determination had been made about the
merits of the City’s argument. The approach taken by the Tribunal was instead held to be a
procedural determination about how the Dream Team’s application should be adjudicated.
The approach followed by the Tribunal was held to be a bona fide interpretation of the Ontario
Code and a determination about the procedure to be followed for the disposition of the
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application. The Court noted that the relevant provisions in the Ontario Code, which are mirrored
in human rights legislation across the country, allow the Tribunal to deal with applications by
way of adopting procedures and practices provided for in its rules and which, “in its opinion
offer the best opportunity for a fair, just and expeditious resolution of the merits of the
application”.16 With respect to the specific conduct being challenged, the Court accepted that the
Tribunal had made a reasonable decision about the procedures to be adopted in order to make a
determination with respect to the application, particularly given that the City had not been
prevented from raising its jurisdictional arguments at a later stage.
The Court’s finding that the Tribunal had been reasonable was based in no small measure on the
clear reasons which had been provided for rejecting the City’s early dismissal application. The
Tribunal was found to have reasonably determined that, at least as an initial matter and without
the benefit of evidence and argument, it was not plain and obvious that the application would
fail. There was thus no basis to review the Tribunal’s decision based on its merits.
Prematurity
The Court also held that the City’s application for judicial review should be dismissed because it
was at best premature. Under this heading, the Court noted that judicial review of interim
decisions of administrative tribunals will occur only in exceptional cases. This approach is
followed since the courts are reluctant to fragment and delay administrative proceedings before
specialized bodies which are entitled to be the masters of their own procedures. The Superior
Court’s deference to the approach followed by the Tribunal relied on the reasoning of the
Supreme Court of Canada in the Halifax (Regional Municipality) v. Nova Scotia (Human Rights
Commission)17 decision, which affirms the importance of deference to preliminary decisions of
tribunals.
The Court in Dream Team also emphasized that relevant provisions of the Ontario Code
reinforce the need for caution when considering interim procedural decisions. The wording of
16
See Dream Team at para 16, citing the Tribunal’s reasons where referred to s. 40 of the Ontario Code.
17
2012 SCC 10 (CanLII).
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subsection 48(3) of the Ontario Code provides for the approach to be followed in situations
where the Tribunal fails to comply with the practices and procedures prescribed by its rules, or
the exercise of discretion under the rules occurs in a particular manner. The subsection states that
any such “improper” decision is not to be set aside on an application for judicial review “unless
the failure or the exercise of discretion caused a substantial wrong which affected the final
disposition of the matter.”18 The Court therefore emphasized the importance of reviewing interim
decisions in the context of their effect, if any, on the Tribunal’s final decision. Based on the
specific facts before the Tribunal, the Court found that it was premature to engage in judicial
review of the Tribunal’s interim decisions regarding the application.
5.
Moore: A Close Review of Decisions, Processes and Remedies
Close review by the courts of human rights tribunal decisions is also evident from the decision in
Moore19 which arose after Frederick Moore filed a human rights complaint against the local
School District and the B.C. Ministry of Education. The core allegation was that Moore’s son
Jeffrey had been discriminated against because of a learning disability and had been improperly
denied a service customarily available to the public. The specific decision which was challenged
was the District’s decision to cease operating a program which Jeffrey would have benefited
from.
After 43 days of hearings, the British Columbia Human Rights Tribunal found that the failure to
provide the needed support and meaningful access to appropriate educational opportunities
constituted discrimination. The Tribunal held that a prima facie case for discrimination had been
established, and the District had failed to justify its conduct by proffering evidence of any needsbased analysis or assessments which might have been made to consider available alternatives.
The Court disregarded the arguments of the respondents regarding budgetary constraints, finding
that decisions had been made to disproportionately cut special needs programs. The Tribunal
made a broad range of remedial orders, and also ordered that the family be reimbursed for the
tuition costs of private schools where the child was enrolled to get necessary instruction.
18
See Ontario Code ss 48(3).
19
Moore v British Columbia (Education) 2012 SCC 61 (“Moore”).
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Divergent Decisions
On the application for judicial review,20 Dillon J. set aside the Tribunal’s decision, finding that
there was no discrimination. She found that the decisions of the District and the Ministry had
been improperly compared to other special needs students, not to the general student population
as the Tribunal had done. The Tribunal’s decision was therefore set aside based on what was
held to be an improper analysis of the discrimination question.
The B.C. Court of Appeal21 proceeded to dismiss the appeal, and supported the B.C. Supreme
Court finding on judicial review that the improper comparison analysis resulted in a flawed
decision at the Tribunal level. The approach of comparing the specific student to the general
student population was essentially an invitation to a review of education policy and its
application, which the Court of Appeal concluded was inconsistent with the remedial purpose of
human rights legislation.
The Supreme Court of Canada held that the appeal should be substantially allowed, and the
decision of the Tribunal was restored. The Court emphasized the legislative purposes of the B.C.
School Act22 including the provision of access to educational opportunities for all learners, could
not be disapplied to those with special needs such as the complainant. If the comparator approach
adopted in the judicial review decision and affirmed by the B.C. Court of Appeal were followed,
the province could in theory have eliminated all special needs programs and yet been immune
from scrutiny or any potential finding of discrimination. The Supreme Court of Canada thus held
that, for there to be a proper assessment of whether or not there was a meaningful level of access
to educational opportunities, full consideration must be given to the approach taken to the overall
population of students.
20
[2008] 10 W.W.R. 518 (BCSC).
21
[2011] 3 W.W.R. 383.
22
S.B.C. 1989, c.61.
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Framework for Discrimination Cases
The Court’s decision provided helpful guidance in confirming the approach to be followed in
discrimination cases. In order to demonstrate prima facie discrimination under section 8 of the
B.C. Human Rights Code23 (the “BC Code”), complainants are required to show that: 1. they
have a characteristic protected from discrimination; 2. they have in fact experienced an adverse
impact respecting a service ordinarily available to the public; and 3. that the protected ground or
characteristic was a factor in the adverse impact. Once a complainant establishes a prima facie
case, the burden shifts to the respondent to justify the relevant conduct or practice. If no such
justification can be established, then discrimination will be found to have occurred. In many
respects, this reflects a trend in the courts to return to the foundation principles provided for in
early Charter and human rights cases.
The Supreme Court of Canada focused on the Tribunal’s assessment of the process followed by
the District to make its decisions, and whether or not these decisions resulted in discrimination.
The Court carefully considered the record in the proceedings, and held that it was not appropriate
to disturb the Tribunal’s findings that the District had other (non-discriminatory) options
available to address its budget crisis. In connection with this review, the Court placed
prominence on the finding of the Tribunal that the District failed to undertake any assessment,
financial or otherwise, of what alternatives were available to accommodate special needs
students. This failure undermined the District’s position that it essentially had no choice but to
deny service to the complainant. As the Court emphasized, before a party can determine that it
has no other choice, it must at least consider what those other choices are.
Review of Remedies
One aspect of the Moore decision which may not have received sufficient attention relates to the
Court’s findings with respect to the systemic remedies which were ordered by the Tribunal. The
specific remedies which were challenged on judicial review involved orders (of which the
Tribunal remained seized) regarding how British Columbia allocates funding and the creation of
23
RSBC, 1996, c.210.
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a mechanism for the delivery of service to students with special needs. After finding that Jeffrey
Moore had suffered discrimination at the hands of the District, the Tribunal held that the broader
policies of the District and Province constituted systemic discrimination. This finding was
rejected by the Supreme Court of Canada, who commented unfavourably on the Tribunal’s
decision to approach discrimination in a binary manner involving individual and systemic
discrimination.
The Court held that relevant remedies for an individual complaint can have a “systemic” (or
more wide-ranging) impact, but the actual remedies which a tribunal can direct must flow from
the claim. In the specific case, the Tribunal was tasked with determining whether or not Jeffrey
Moore had been subjected to discrimination. For such a review, it was possible to consider
systemic evidence, including details of “big picture” decisions which impacted the complaint, as
part of determining how to dispose of the complaint. However, the Court emphasized that it was
not necessary or indeed proper to transform the proceedings into “an extensive inquiry into the
precise format of the provincial funding mechanism or the entire provincial administration of
special education”.24 This effort, said the Court, would make the role of the adjudicator tasked
with dealing with a specific complaint more in the nature of a Royal Commission. As a result,
the systemic remedies were overturned. This determination provides helpful guidance on the
limits applicable to the remedial authority of human rights tribunals, particularly when
considering cases involving claims pertaining to alleged discrimination arising from the delivery
of services to the public.
6.
Pieters: Deference Has Its Limits
The decision in Pieters25, which demonstrates that judicial deference has its limits, involved
review of an Ontario Human Rights Tribunal determination that two individuals had been
subjected to discrimination. The case involved a successful application for judicial review by the
24
See Moore at para 64.
25
Peel Law Association v. Pieters, 2012 ONSC 1048 (“Pieters”). Note also that leave to appeal was subsequently granted
by the Ontario Court of Appeal in matter M41116 on June 25, 2012.
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Peel Law Association and Melissa Firth, with the result being that the decision of the Tribunal
was overturned.
The case arose out of an incident on May 16, 2008 in the lawyers lounge at the Brampton
Courthouse, which is a facility operated by the Peel Law Association (PLA). The PLA’s policy
is that only lawyers and law students are permitted to use the lounge, and there was a sign on the
premises which stated “lawyers only”. The personal respondent Firth is a librarian who
approached the applicants, Selwyn Pieters and Brian Noble, who are self-identified as black, and
asked them to confirm that they were lawyers or law students. In their complaint to the Tribunal,
the lawyers alleged that they had been subjected to racial profiling and were subjected to
differential treatment because of their race.
The Tribunal found that there had been discrimination, with race being determined as a factor in
why Ms. Firth approached the complainants. This finding was based on the evidence that she did
not ask other persons in the lounge (which including people who were white and non-black
visible minorities) for identification. The Tribunal found that the individuals had been
approached in a demanding and aggressive fashion, which was indicative of their treatment being
influenced by their race and colour.
Standard of Review
In considering the judicial review application initiated by the PLA and Ms. Firth, the Court
began its analysis by noting that the parties agreed that the relevant standard of review of the
Tribunal’s decision was reasonableness. This was based on the consensus view that the central
issues in the case involved issues of fact, and the application of the law to the facts. The
applicants also conceded that, within the reasonableness standard as outlined in Dunsmuir, the
highest degree of deference should be shown to the Tribunal with respect to its findings. The
applicants asserted, however, that the determination that the incident resulted in a prima facie
case of discrimination was erroneous based on the facts.
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Unreasonableness of Tribunal Decision
The Court noted that the basis for the Tribunal’s finding of a prima facie case of discrimination
rested on specific findings, including that the complainants were the only black men in the
lounge; they were the only persons Ms. Firth chose to question; no one else in the lounge was
questioned; and she acted in an improper manner. However, these conclusions of the Tribunal
were held to be inconsistent with certain other findings of fact, including that the complainants
were the closest to the door and were the first persons who Ms. Firth would have encountered.
Further, the Court noted that, based on the Tribunal’s own findings, she routinely checked
identification as part of her responsibility for security of the lounge, and nothing about her
conduct was irregular. The result was what were essentially contradictory findings by the
Tribunal.
A decision to find differential treatment was therefore held to be unreasonable, with the Court
determining that there was insufficient evidence to draw such a conclusion. Further, the fact that
the incident was contentious was not a basis to find differential treatment. Indeed, there were no
reasonable grounds to suggest that Ms. Firth’s “aggressive and demanding manner” had been
adopted exclusively because the complainants were black. Other similar requests for
identification had been made in the past, including when Ms. Firth had questioned non-racialized
persons, and these situations had also resulted in difficult moments. The Court thus held that the
Tribunal had no evidentiary basis to conclude that the complainants had been subjected to the
required differential treatment which is a necessary element of a discrimination claim.
The Court found that the Tribunal had improperly reversed the burden of proof, and thus
inappropriately placed the PLA and Ms. Firth in the untenable position of trying to prove a
negative. More specifically, based on the findings detailed above, the reasoning of the Tribunal
forced the respondents to show that the manner in which routine duties were carried out was in
no way motivated by race and colour. This amounted to a reviewable error, and a decision on
judicial review to overturn the finding of discrimination.
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Lack of Nexus
The Superior Court panel in Pieters also proceeded, for the sake of completeness, to review other
issues raised by the applicants. Even if there had been a basis to find differential treatment
(which there was not based on the reasons detailed above), there was no evidence before the
Tribunal which established any nexus or connection between the distinction and any alleged
disadvantage suffered. The Court held that the approach which the Tribunal followed, which was
to use police racial profiling cases to infer the relevant nexus, was inappropriate in the
circumstances and thus resulted in a framework which was “misconceived”.26 In this regard, the
Court held as follows: “A complainant cannot merely point to his or her membership in a
racialized group and an unpleasant interaction to establish a prima facie case of
discrimination.”27 While racial profiling may be the basis for a discrimination complaint, it must
still be established on the facts of the particular application.
The decision to overturn the Tribunal’s finding of discrimination was based on the fact that the
decision could not be rationally supported from the evidence. The Court emphasized that there
was no basis to establish differential treatment, and there was no nexus or causal link between
the conduct of the PLA and Ms. Firth and the complainants. The result was an error in
unreasonably finding that a prima facie case of discrimination had been made out and thus an
improper conclusion that the onus lay with the respondent to disprove discrimination. The Court
proceeded to order that the decision be quashed, and the applications to the Tribunal were
dismissed. It will be interesting to see whether or not this outcome will prevail following the
renewal of the proceedings by the Ontario Court of Appeal.
26
See Pieters at para 43.
27
See Pieters at para 44.
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7.
Concluding Observations
As stated at the outset, the intent of this paper has been to provide an overview of recent key
decisions in order to provide context for other panel members. While others will no doubt have
more detailed observations and commentary, the following trends can be discerned from the
decisions reviewed above:
(a)
the review standard from Dunsmuir continues to be regularly applied, with findings by
tribunals with respect to discrimination being reviewed on a standard of reasonableness;
(b)
reviewing courts remain generally deferential to the decisions made by human rights
tribunals, particularly when the matters in issue involve decisions with respect to the
tribunal’s home statute;
(c)
the legal test for prima facie discrimination and the framework applied by tribunals in
this area continues to be based on established jurisprudence, which includes a purposive
application of applicable legislation;
(d)
in cases where the validity of legislation is in issue, the courts will review the relevant
provisions based on a correctness standard;
(e)
when competing rights are in issue, the specific reasons for reaching a particular
determination regarding discrimination will be closely reviewed;
(f)
the courts will show broad deference to how tribunals decide to deal with complaints, and
the review of procedural or interim decisions will only be considered in exceptional
cases; and
(g)
one area where parties have had some success through judicial review relates to remedies
and challenges to overly broad or technically flawed orders.
The author hopes that this provides some modest guidance with respect to how courts and
tribunals might approach relevant cases going forward.
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