Brian J. Smith

The respondent Police Services Board brought preliminary requests to disallow the complainant's proposed expert witnesses and to bifurcate the hearing into liability and remedy phases.

The Tribunal dismissed the request to disallow the experts at the pre-hearing stage, finding it premature to assess their qualifications and the relevance of their evidence without hearing testimony.

The Tribunal granted the request to bifurcate the hearing, noting that the expansive systemic remedies sought by the complainant warranted dealing with liability first to ensure a fair and expeditious resolution.

In an interim decision regarding a human rights complaint alleging racial profiling and assault by police officers, the Tribunal reviewed records of past complaints against the respondent officers to determine if they should be produced.

The Tribunal ordered the production of a 2001 complaint alleging a racially motivated assault at the same police division, finding its probative value outweighed potential prejudice.

A 2007 complaint lacking similarity was withheld.

The Tribunal declined to redact personal identifiers from the produced records but imposed conditions restricting their use to the current proceeding or any subsequent judicial review.

The moving parties sought a stay of an interim Tribunal decision ordering the production of police discipline records pending their application for judicial review.

The Tribunal applied the traditional three-part test for a stay, considering it in the context of the revised Human Rights Code, which emphasizes expeditious resolution and limits judicial review of procedural rulings.

The Tribunal found that producing the records to the adjudicator would not cause irreparable harm and that the balance of convenience strongly favoured proceeding without delay.

The request for a stay was denied, though a brief extension was granted to allow the moving parties to seek a stay from the Divisional Court.

The Commission and the complainant sought the production of information in police files about allegations by third parties of discrimination by the respondent police officers.

The complainant alleged discrimination on the basis of colour, creed, place of origin, and race, including physical assaults and harassment.

The Tribunal considered the application of the Supreme Court's decision in R. v. McNeil regarding the production of police disciplinary records.

The Tribunal found that the requested records were arguably relevant as similar fact evidence.

To balance the potential probative value against the prejudicial effects and privacy interests of the officers and third-party complainants, the Tribunal ordered the Chief of Police to produce the records to the Tribunal for review prior to determining whether they should be disclosed to the parties.

The complainant, who has a severe brain injury, alleged that the respondent family physician discriminated against him on the basis of disability by refusing to accept him as a new patient.

The respondent maintained that she refused the complainant because his mother expected her to make house calls, a service she does not provide to any patients.

The Tribunal found that the respondent's refusal was based entirely on the expectation of house calls and not on the complainant's disability.

The Tribunal also rejected the argument that the respondent's new patient interview process was inherently discriminatory.

The complaint was dismissed.

The applicant sought judicial review of a decision by the Ontario Human Rights Commission not to refer his employment discrimination complaint to a tribunal.

The complaint alleged discrimination based on race and colour.

The Divisional Court held that the standard of review was reasonableness and found that the Commission reasonably concluded there was insufficient evidence to warrant a referral.

The application for judicial review was dismissed with costs awarded to the respondent.

The applicant sought costs following an application for judicial review and a stay motion that were granted on consent.

The court rejected the Commission's proposed costs of $3,500 as inadequate.

Costs for the application and stay motion were fixed at $10,000, with an additional $1,500 awarded for the day's appearance.

The applicant, Toronto Police Services Board, brought a motion for a stay of proceedings before the Human Rights Tribunal pending its application for judicial review.

The applicant argued it was denied procedural fairness when the Ontario Human Rights Commission referred the complaint to the Tribunal without providing an amended complaint or addressing the complainant's delay.

The Divisional Court found the applicant satisfied the three-part test for a stay, noting serious issues regarding procedural fairness and jurisdiction, and that proceeding before the Tribunal would render the judicial review moot.

The motion for a stay was granted and an expedited hearing for the judicial review was directed.

The Ontario Human Rights Commission requested an order for the production of documents from the respondents and an extension of the deadline to file its hearing brief until after the documents were produced.

The Tribunal denied the request to order production prior to the filing of hearing briefs, finding no unique circumstances to justify an exception to the general rule that procedural matters are not determined prior to the filing of hearing briefs and disclosure.

A schedule for filing hearing briefs and production was ordered.

The complainant, a tennis instructor with epilepsy, alleged discrimination in employment by the respondents.

After experiencing seizures at work, the respondents required him to disclose his condition to all staff and private clients, and criticized him for not disclosing it upon hiring.

The respondents also cited his failure to deal openly with his epilepsy as a reason for not rehiring him for the following season.

The Tribunal found that the disclosure requirements and the consideration of his epilepsy in the rehiring decision constituted discrimination on the basis of disability.

The Tribunal awarded $15,000 in general damages and ordered public interest remedies, including training and the creation of an anti-discrimination policy.

The Ontario Human Rights Commission requested to withdraw from the proceedings after reaching a settlement with the respondents.

The complainant opposed the withdrawal unless the Commission was directed to take further steps to assist her in the Tribunal's processes.

The Tribunal allowed the Commission's request to withdraw, finding that its public interest mandate had been satisfied and that no special directions were necessary to minimize prejudice to the complainant.

The complainant, a Black man originally from Ethiopia, purchased a unit in a co-ownership building.

The respondent, acting president of the building's board of directors, delayed the approval of the purchase for several weeks.

The Tribunal found that the respondent's actions were influenced by anti-Black racism and stereotypes, and that she failed to investigate allegations of racism within the board.

The Tribunal concluded that the respondent violated section 2(1) of the Human Rights Code and ordered her to pay $8,000 in general damages and $2,000 for mental anguish, along with public interest remedies.

The respondent Crown brought a motion to dismiss the human rights complaint at a preliminary stage, arguing that previous Charter jurisprudence established it was plain and obvious the complaint could not succeed.

The complainant, an international medical graduate, alleged systemic discrimination based on place of origin regarding access to funded medical residency positions.

The Tribunal dismissed the Crown's motion, finding that the contextual and purposive analysis under the Human Rights Code might yield a different result than the previous Charter cases, particularly given differences in the alleged grounds and factual context.

The Tribunal also dismissed the complainant's motion for a partial publication ban, as no evidence was provided to justify overriding the open court principle.

Following a successful application for judicial review that prohibited the Ontario Human Rights Tribunal from hearing a complaint, the applicant sought substantial indemnity costs against the Commission and the Tribunal for both the judicial review and the underlying human rights proceedings.

The Divisional Court held it lacked jurisdiction under the Human Rights Code or the Courts of Justice Act to award costs for the tribunal proceedings.

For the judicial review, the court awarded partial indemnity costs of $20,563.57 against the Commission alone, finding the hours claimed by the applicant excessive and declining to award costs against the Tribunal as it had not engaged in misconduct or taken an adversarial position on the merits.

The complainant, who suffered from depression and anxiety, took a medical leave of absence from her employment.

The respondents failed to promptly provide her with a Record of Employment and benefit cheques, and subsequently terminated her employment while she was awaiting medical clearance to return to work.

The Tribunal found that the respondents engaged in direct discrimination on the basis of disability.

The respondents were ordered to pay $10,000 in general damages, $12,945.84 for lost wages, and $198.90 for lost benefits, and to implement public interest remedies including posting Code Cards and distributing the Commission's disability policy.

The applicant sought judicial review of an interim decision by the Human Rights Tribunal of Ontario, which found it had jurisdiction to hear a complaint regarding a withdrawn job offer following a positive pre-employment drug test for marijuana.

The Divisional Court held that the Tribunal erred in law by failing to dismiss the complaint, as recreational marijuana use without actual or perceived disability does not fall under the protected ground of disability in the Human Rights Code.

The Court granted an order of prohibition preventing the Tribunal from hearing the complaint.

The applicant sought an order of prohibition to prevent the Human Rights Tribunal of Ontario from hearing a complaint referred to it by the Ontario Human Rights Commission.

The Divisional Court allowed the application, finding that the Tribunal lacked jurisdiction to hear and determine the complaint, and that the Tribunal was incorrect or unreasonable in deciding it had jurisdiction.

The complaint was dismissed, with detailed reasons to follow.

The respondents brought a motion to dismiss a human rights complaint alleging discrimination on the basis of perceived disability.

The complainant's job offer for a safety-sensitive position was withdrawn after he tested positive for marijuana during a pre-employment drug test.

The respondents argued the Tribunal lacked jurisdiction because the offer was withdrawn due to dishonesty, not disability, and that marijuana use without disability is not protected.

The Tribunal dismissed the motion, finding that the complaint sufficiently pleaded facts to support a claim of discrimination based on perceived disability and that the dispute over the reason for the withdrawal required a hearing on the merits.

The Tribunal also declined to restrict the scope of the inquiry solely to the marijuana elements of the drug testing policy.

The complainants alleged that Ontario discriminated against them on the basis of sex and disability by de-listing sex reassignment surgery as an insured service under OHIP.

The Tribunal found that Gender Identity Disorder is a disability and that the de-listing had a disproportionate adverse impact on three of the complainants who had already begun their transition program at the CAMH Gender Identity Clinic.

The Tribunal ordered Ontario to fund the surgery for these three complainants as an interim remedy, finding that the grandparenting provision in the amending regulation was not a reasonable accommodation.

The appellant father appealed an order determining his access to the children between 4:00 and 6:00 p.m. on 'exceptional days' when they were not in school, an issue left open by minutes of settlement.

The Court of Appeal found that the trial judge committed no error in principle in determining the issue and declining to re-open it.

The appeal was dismissed with costs awarded to the respondent.