DIVISIONAL COURT FILE NO.: 534/01

DATE: 2003/02/14

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R.A. BLAIR R.S.J., ELLEN MACDONALD J. and B. MACDOUGALL J.

IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, Chap. J.1;

IN THE MATTER OF the Statutory Powers Procedure Act, R.S.O. 1990, Chap. S.22;

AND IN THE MATTER OF a complaint under the Ontario Human Rights Code, R.S.O. 1990, Chap. H.19, and certain decisions relating thereto dated August 16, 2000 and March 14, 2001;

B E T W E E N:

DOMINIC GISMONDI

David C. Moore, for the Applicant

Applicant

• and -

ONTARIO HUMAN RIGHTS COMMISSION, and THE CORPORATION OF THE CITY OF TORONTO

Anthony D. Griffin, for the Ontario Human Rights Commission

Christopher G. Riggs Q.C., for the City of Toronto

Respondents

HEARD: December 10, 2002

REASONS

R.A. Blair R.S.J.:

1This is an application for the judicial review of two decisions of the Ontario Human Rights Commission refusing to deal further with the Applicant’s age-based discrimination complaint in relation to the termination of his employment. The Commission concluded that the complaint was untimely because the events giving rise to it occurred more than six months before the complaint was filed.

Overview

2Prior to December 31, 1998, Domenic Gismondi was employed as the Director, Road and Sidewalk Operations, for the former City of North York. He was 47 years of age, and he had been an employee of the Municipality for approximately 20 years.

3The creation of the newly amalgamated City of Toronto (which included the former City of North York) in 1997 eliminated Mr. Gismondi’s position, however, and he was unsuccessful in competitions for other posts in the new regime. In the end, his employment – by that time with the amalgamated Respondent City – was terminated.

4Of the competitions in which Mr. Gismondi participated, the last and most significant was conducted in October and November 1998 for the purpose of selecting five people to hold the position of Manager, Roads Operations. He was selected for an interview in that competition, and, by some accounts at least, appears to have been initially chosen for one of the open positions. On November 23, 1998, however, he was advised that he had not been successful and that his employment would be terminated. By letter dated December 8, 1998 he was advised that he was being terminated, effective December 31^st.

5Mr. Gismondi protested. He claimed the competition had been conducted unfairly, and that he was being treated in a discriminatory manner because of his age. He asked for an internal review and that he be considered for other positions. Although the City implemented his termination, discussions continued between the two for about a six-month period through June 1999. In the course of these discussions, Mr. Gismondi advised the City that he intended to file a complaint alleging age discrimination under the Ontario Human Rights Code (“the Code”). Indeed, shortly after receiving the letter of November 23, 1998, he had attended at the offices of the Commission to do so.

6The Commission’s practice is that complainants do not prepare and sign their own complaints. Rather, they complete an Intake Questionnaire, which is then reviewed by the Commission Staff who, in turn, prepares a complaint for execution and service. That is what happened in this case.

7Mr. Gismondi was sent a copy of the Intake Questionnaire following his first attendance at the Commission on December 9, 1998. At the time of his attendance he was advised by Staff that there was a 6-month limitation period for the filing of a complaint following the alleged acts of discrimination. This information is repeated in the Intake Questionnaire.

8Mr. Gismondi did not complete and file the Intake Questionnaire until June 17, 1999. He says he did not want to disrupt negotiations with the City by filing the complaint, and maintains he had a qualified undertaking from the City not to make an issue the timing of the complaint. In any event, on August 10^th he was told the document was ready. He immediately attended at the Commission and signed the complaint, alleging that he had been discriminated against because of his age. The complaint was served on the City on August 25, 1999.

9The City responded. It asserted that the complaint was frivolous and in bad faith, that it was not within the Commission’s jurisdiction, and that it was untimely. It asked the Commission not to deal with the complaint pursuant to sections 34(1)(b) and 34(1)(d) of the Code. With respect to the timeliness issue, the City acknowledged that in May 1999 – in order to accommodate Mr. Moore, who was then newly retained in the matter – its counsel agreed not to make an issue of timing, subject to the caveat that Mr. Gismondi was not entitled to hold off his human rights complaint forever. Nothing further was heard from him or his counsel during the next three months. The City therefore argued that the timing on the no-timing-issue had run its course.

10The Commission accepted the City’s argument and decided not to deal with the complaint on the basis that it was untimely, i.e., that more than six months had elapsed between the filing of the complaint and the occurrence of the facts upon which the complaint was based. Commission Staff had recommended this disposition in what is called “the Section 34 Analysis” prepared by Staff.¹

11The Commission’s reasons, dated August 16, 2000, are brief. They read in their entirety as follows:

Dominic Gismondi

v.

The Corporation of the City of Toronto

File No. JBAT-42ZLRQ

The Commission has exercised its discretion under Section 34(1)(d) of the Code, and has decided not to deal with this complaint which alleges discrimination because of handicap in employment for the following reasons:

1. The evidence indicates that the events giving rise to this complaint occurred on or before November 23, 1998 and that the complaint was not filed with the Commission until August 25, 1999 some 9 months later.

2. The Commission is not satisfied that the delay was incurred in good faith.

For the above reasons, the Commission considers that this complaint falls within the provisions of Section 34(1)(d) of the Code.

Approved: ____________________________

Keith C. Norton Q.C., B.A., LL.B.

Date: August 16, 2000

12Mr. Gismondi asked the Commission to reconsider its decision pursuant to section 37 of the Code. The Commission did so, but declined to change its determination. On March 14, 2001, it issued its decision declining to change its disposition, for the following reasons:

Whereas pursuant to section 37 of the Human Rights Code the Commission has an unfettered discretion to reverse its original decision;

and whereas the Commission has reviewed its original decision and reasons, and has considered the matters raised in the application for reconsideration;

pursuant to section 37 of the Code, the Commission has decided to uphold its original decision to not deal with the complaint for the following reason:

1. The Commission remains of the view that this complaint falls within the provisions of Section 34(1)(d).

13Mr. Gismondi now seeks judicial review of the Commission’s two decisions not to deal with his complaint.

The Statutory Provisions

14The relevant provisions of the Code provide as follows:

34(1) Where it appears to the Commission that,

a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;

b) the subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith;

c) the complaint is not within the jurisdiction of the Commission; or

d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay,

the Commission may, in its discretion, decide to not deal with the complaint.

(2) Where the Commission decides to not deal with a complaint, it shall advise the complainant in writing of the decision and the reasons therefor and of the procedure under section 37 for having the decision reconsidered.

37(1) Within a period of fifteen days of the date of mailing the decision and reasons therefor mentioned in subsection 34(2) or subsection 36(2), or such longer period as the Commission may for special reasons allow, a complainant may request the Commission to reconsider its decision by filing an application for reconsideration containing a concise statement of the material facts upon which the application is based.

(3) Every decision of the Commission on reconsideration together with the reasons therefore shall be recorded in writing and promptly communicated to the complainant and the person complained against and the decision shall be final.

The Standard of Review and Natural Justice Considerations

15Mr. Moore adopted a two-pronged approach in attacking the Commission’s decisions not to proceed with Mr. Gismondi’s complaint. First, he argued that the Commission had acted in a fashion that was contrary to the fairness principles of natural justice. In this regard, the primary complaint is that the Commission ignored or failed to consider the submissions made by or on behalf of Mr. Gismondi and, in particular, that the Commission’s reasons were insufficient because they failed to demonstrate adequately the basis upon which the Commission had reached it decisions. Secondly, he maintained the Commission exercised its discretion under sections 34 and 37 in a patently unreasonable manner.

Denial of Natural Justice Argument

16Where a tribunal’s decision is attacked on the basis of a denial of natural justice, it is not necessary for the Court to engage in an assessment of the standard of review. The question is whether the rules of procedural fairness have been adhered to. In London (City) v. Ayerswood Development Corp., [2002] O.J. No. 4859, the Court of Appeal stated, at para. 10:

When considering an allegation of a denial of natural justice, a court need not engage in an assessment of the appropriate standard of review. Rather, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly. See Moreau-Bérubé, (2002), 2002 SCC 11, 209 D.L.R. (4^th) 1 (S.C.C.), at paras. 74-75.

The Standard of Review

17The attack on the Commission’s decisions on their merits gives rise to a consideration of the standard of review to be applied on the judicial review of the exercise of the Commission’s discretion under sections 34 and 37 of the Code.

18In our opinion, the standard of review is patent unreasonableness.

19The weight of authority in this Court is to that effect. However, some cases have applied a standard of reasonableness. In none of the cases has the standard of review question been subjected to the “functional and pragmatic approach” analysis that is now in vogue. Some further consideration of the standard of review in cases of this nature is therefore warranted.

20As Goudge J.A. observed in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), [2002] O.J. No. 4407 at para. 26:

The determination of the proper standard of review of the decision of an administrative tribunal now requires application of the pragmatic and functional approach described in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. That approach focuses on the fundamental question of whether the issue before the Tribunal was one that was intended by the legislators to be left to the exclusive decision of the Tribunal. See Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890 at para. 18.

21Pushpanathan and other cases indicate there are four factors – none conclusive in itself – that must be contemplated in determining the proper standard of review. Those factors are:

a) the presence or absence of a privative clause;

b) the relative expertise of the tribunal;

c) the purpose of the Act as a whole, and, in particular the provision under consideration; and,

d) the nature of the problem under review.

22The Divisional Court has held in several decisions that the standard of review of the exercise of a section 34 or 37 discretion by the Commission is patent unreasonableness: see Devlen v. Ontario (Human Rights Commission) (1998), 105 O.A.C. 301; Naimji v. Board of Education of North York (1996), 96 O.A.C. 248; Stewart v. Ontario (Human Rights Commission), [1999] O.J. No. 4768; Enoch v. Ontario (Human Rights Commission), [1997] O.J. No. 4555; Lee v. Ontario (Human Rights Commission), [2000] O.J. No. 4905. However, in two cases this Court has instead applied – or at least implied – a standard of reasonableness to the same type of review: see Jazairi v. Human Rights Commission (Ont.) (1997), 99 O.A.C. 184, aff’d (1999), 175 D.L.R. (4^th) 302 (Ont. C.A.); and Pritchard v. Ontario (Human Rights Commission) (1999), 45 O.R. (3d) 97. Moreover, the Supreme Court of Canada has suggested in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, that a general doctrine of “unreasonableness” has sometimes been applied to discretionary decisions of administrative tribunals (per L’Heureux-Dubé J. at para. 53).

23We are satisfied, however, that the Pushpanathan approach leads to the conclusion that a standard of patent unreasonableness is the appropriate standard of review with respect to discretionary decisions under sections 34, 36 and 37 of the Code, and that this conclusion is not inconsistent with what the Supreme Court said in Baker. Speaking for a unanimous Court in the latter case, L’Heureux-Dubé J. repeated what other authorities have said, namely that in approaching judicial review of administrative discretion it is necessary to take into account the pragmatic and functional approach to judicial review first articulated in U.E.S. Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 (and reiterated by Goudge J.A. in Monsanto, supra). In para. 53 of her judgment, L’Heureux-Dubé J. said:

Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law. The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations: see, for example, Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pp.7-8; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231. A general doctrine of “unreasonableness” has also sometimes been applied to discretionary decisions: Associated Provincial Picture House, Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223 (C.A.). In my opinion, these doctrines incorporate two central ideas – that discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker’s jurisdiction. These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manouevre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. Duplessis, [1959] S.C.R. 121), in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038).

(Underlining added.)

24Here, there is no general privative clause in the Commission’s regulatory legislation. On the other hand, there is no right of appeal from a decision of the Commission under sections 34, 36 or 37 – unlike from a decision of a Board of Inquiry under the Code (s. 42). However, section 37(3) – the reconsideration provision that lies at the end of the screening process – provides that the Commission’s decision on the reconsideration “is final”. These features of the legislative scheme are consistent with the nature of the function being performed by the Commission when acting under those sections. The Commission – whose relative expertise in fact finding and processing complaints in the human rights context is well recognized – is engaging in a screening function, which is more administrative than quasi-judicial in nature. The fundamental purpose of the Code is to establish a legislative framework “to ensure that all members of our society enjoy the essential right to be free from discrimination on racial and other grounds”: Payne v. Ontario (Human Rights Commission) (2000), 192 D.L.R. (4^th) 315 (Ont. C.A.) at 361. The Commission is the statutory vehicle established to carry out that function. Its role is to investigate complaints, to screen them, and, where warranted, to establish a Board of Inquiry to hear and determine the complaints. In carrying out the first two of these roles the Commission is not sitting as a tribunal (whose decision may be appealed to the Divisional Court) but rather it is acting in an investigative and administrative screening capacity. As Boland J. stated in Brome v. Ontario (Human Rights Commission) (1999), 35 C.H.R.R. D/469 (Ont. Div. Ct.), leave to appeal dismissed [1999] O.J. No. 2537 (C.A.), at para. 18:

The combined effect provided by the legislature in s. 34 is to enable the Commission to sift through the complaints and remove a number of them from the time-consuming process of investigation. The power to bar certain complaints from proceeding further, regardless of their merit, reflects the legislature’s overriding commitment to considerations of administrative efficiency and to specif[ic] policy objectives. The Commission is not under a public duty to proceed with every complaint; it has a discretion which i[t] may exercise depending upon the circumstances.

(Underlining added.)

See also, Syndicat des employés de production du Québec et de l’Acadie c. Canada (Commission canadienne des droits de la personne) et al., [1989] 2 S.C.R. 879 at 911, per L’Heureux-Dubé J. (in dissent).

25Given the Commission’s acknowledged expertise in dealing with human rights complaints, the purpose of the legislation and the nature of the particular problem being addressed by the Court on a review of a section 34 or 37 decision, we have no hesitation in concluding that its decisions in such matters are entitled to the degree of deference found at the “patent unreasonableness” end of the spectrum of review set out in such cases as Pezim v. British Columbia (Superintendent of Brokers) (1994), 114 D.L.R. (4^th) 385 (S.C.C.), Canada (Director of Investigation and Research) v. Southam Inc. (1997), 144 D.L.R. (4^th) 1, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), supra. The doctrine of “unreasonableness”, recognized by the English Court of Appeal in Wednesbury, supra, and referred to by L’Heureux-Dubé J. in Baker, supra, must be viewed in light of the subsequent development of that “spectrum” approach in this context, in our opinion. The result is nonetheless in keeping with the “considerable deference” approach favoured by the Supreme Court of Canada in Baker.

26The standard of review to be applied on judicial reviews of this nature, therefore, is that of “patent unreasonableness”.

Analysis

27The nub of the Applicant’s submissions may be summarized as follows:

a) The Commission failed in its duty to act fairly and in accordance with the rules of natural justice,

(i) because it ignored or failed to consider the arguments made by or on behalf of Mr. Gismondi; and, in particular,

(ii) because its reasons were insufficient in that they failed to demonstrate adequately the basis upon which the Commission had reached its decision; and,

b) The Commission’s decision not to proceed was patently unreasonable,

(i) because it did not take into account the argument that Mr. Gismondi’s complaint was based on facts that had occurred as late as December 31, 1998 (the date of formal termination) and which were therefore within six months of the date on which he had attended at the offices of the Commission and filled in the Intake Questionnaire; and,

(ii) because the evidence was that Mr. Gismondi had acted in the good faith belief that he was not required to file his complaint within the six-month period.

28In our view, the natural justice arguments are not well founded and the decisions of the Commission are not patently unreasonable.

Procedural Fairness Arguments

29Mr. Gismondi’s complaint was served on the City on August 25, 1999. The City responded by filing extensive submissions with the Commission, arguing that the Commission should not deal with the complaint on three grounds, namely, that it was frivolous and made in bad faith; that it was not within the Commission’s jurisdiction; and that it was untimely. Mr. Gismondi filed extensive reply submissions dealing with these contentions.

30As is the practice in these matters, the Commission Staff then prepared what is known as a “Section 34 Analysis” to be used by the Commission in making its determination whether to proceed with the complaint. The Section 34 Analysis recommended that the first two arguments put forward by the City be rejected, but that the third be adopted. The Analysis concluded that “it appears appropriate for the Commission to exercise its discretion, and to decide not to deal with the complaint pursuant to only Section 34(1)(d) of the Code” (i.e. the untimeliness provision).

31Counsel for Mr. Gismondi then wrote to Staff requesting a revision of the Section 34 Analysis respecting that recommendation. The submission included the argument that the process was unfair because there was no evidence the complainant had acted in bad faith regarding the time taken to file the complaint since he had at all relevant times indicated his intention to do so and since the City had agreed not to make an issue of timing. Included in the materials was an affidavit from Mr. Gismondi testifying to his good faith belief that it was appropriate and acceptable to the City that the filing of his complaint be deferred. Presented as evidence supporting this belief was a copy of Mr. Moore’s memorandum to file, dated May 21, 1999, recording his recollection of a conversation with Mr. Monteith of the City regarding the City’s “qualified undertaking” not to raise the issue of timing. The argument was also made that Mr. Gismondi’s complaint was based upon his termination effective December 31, 1998, rather than on facts occurring on November 23^rd, when he was informed he had not been the successful candidate.

32In spite of these arguments by and on behalf of Mr. Gismondi, the Staff indicated there would be no changes to the Section 34 Analysis. Thereafter, Mr. Gismondi filed his formal submissions in reply to the Section 34 Analysis on July 17, 2000. The Reply submissions raised the same arguments as those previously presented. The Reply submissions were in the materials considered by the Commission on August 16, 2000, when the decision was made not to proceed with the complaint.

33As stated, the Commission decided not to proceed with the complaint for the reasons set out above. Counsel for Mr. Gismondi then requested a reconsideration of that decision pursuant to section 37 of the Code. A process similar to the one described above was followed in this context as well. Mr. Gismondi made submissions, the Staff prepared a Reconsideration report and Mr. Gismondi replied to that report. The City also made submissions. On March 14, 2001, the Commission rejected the request for reconsideration as previously set out.

34With respect to whether the Commission considered Mr. Gismondi’s submissions, we are of the view that the complainant was given ample opportunity to make submissions and to respond to the Section 34 Analysis and the Reconsideration report, and all of the arguments upon which he relied appear to have been before the Commission at the time the decisions were made. Mr. Gismondi had knowledge of the matters the Commission was considering and upon which their decisions would be based. He had a full opportunity to be heard. The requirements of procedural fairness in this regard have been met.

Sufficiency of Reasons Argument

35With respect to the reasons provided by the Commission, section 34(2) of the Code specifically requires that:

Where the Commission decides to not deal with a complaint, it shall advise the complainant in writing of the decision and the reasons therefor and of the procedure under section 37 for having the decision reconsidered. (Emphasis added.)

36Subsection 37(3) states:

Every decision of the Commission on reconsideration together with the reasons therefor shall be recorded in writing and promptly communicated to the complainant and the person complained against and the decision shall be final. (Emphasis added.)

37Mr. Moore submits that where a tribunal is required to give reasons for its decision, those reasons must be responsive to the issues raised and must set out the analysis undertaken in connection with those issues. A mere statement of conclusion, or a bare recital of preconditions to the exercise of a discretionary power is not sufficient. See Leung v. Ontario (Criminal Injuries Compensation Board) (1995), 24 O.R. (3d) 530 (Div. Ct.) at 535-536; Desai v. Brantford General Hospital (1991), 87 D.L.R. (4^th) 140 (Ont. Div. Ct.); Petro-Canada v. Canada-Newfoundland Offshore Petroleum Board (1995), 127 D.L.R. (4^th) 483 (Nfld. S.C.) at 494-495; VIA Rail Canada Inc. v. Canada (National Transportation Agency) (2000), 193 D.L.R. (4^th) 357 (Fed. C.A.) at 363-366. In the context of human rights legislation in particular, Mr. Moore points to Payne v. Ontario (Human Rights Commission), supra, and Canadian Broadcasting Corp. v. Paul (2001), 2001 FCA 93, 198 D.L.R. (4^th) 633 (Fed. C.A.) at 649-650.

38The statutory obligation of the Commission under sections 34 and 37 of the Code is to advise the complainant of the decision and “the reasons therefor”. Without diminishing the importance of the decision in question to the complainant, but keeping in mind the administrative “screening” nature of those decisions, we would be reluctant to impose upon the Commission an obligation to generate lengthy or elaborate reasons in the sections 34 and 37 context. With the exception of Payne, supra, and Canadian Broadcasting Corp. v. Paul, supra, the authorities relied upon by the Applicant do not relate to functions analogous to those performed by the Commission under these sections. We are not satisfied the law respecting reasons required from a court or from a tribunal exercising a “hearing” type of function should be imported automatically and without qualification into circumstances where the tribunal is performing a pre-hearing investigative and screening function.

39There is authority for the proposition that in considering a tribunal’s reasons the Court may look at the material that was before the tribunal and the result reached to see if there is a rational basis for that result: see Gee v. Canada (Minister of National Revenue-M.N.R.), 2002 FCA 4, [2002] F.C.J. No. 12 (Fed C.A.).

40What the Code requires is that the complainant be notified of the Commission’s decision and the reasons therefore. Here, the Commission’s reasons are admittedly concise and somewhat wanting in detail. However, they advise Mr. Gismondi of the Commission’s decisions (not to refer his complaint to a Board of Inquiry, and to uphold its original decision in that regard) and of the reasons therefore. With respect to the section 34 decision, the reasons were that the complaint was out of time and that the Commission was not satisfied the delay was incurred in good faith. With respect to the section 37 reconsideration, the Commission’s reasons were that after reviewing its original decision and reasons and after considering the matters raised in the application for reconsideration, it remained of the view that the complaint falls within the provisions of section 34(1)(d).

41It might have been preferable if the Commission had provided somewhat more detailed reasons for its decisions, articulating at least the major points in issue raised by the complainant and considered in arriving at the decision. We would not set aside the Commission’s decisions on the grounds of insufficient reasons in the circumstances of this case, however.

42In Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 at 685, L’Heureux-Dubé J., writing for the majority, adopted the following comments from Wade, H.W.R., Administrative Law, 5^th ed. Oxford: Clarendon Press, 1982, at 482-483:

. . . In the same vein, the duty to give reasons need not involve a full and complete disclosure by the administrative body of all of its reasons for dismissing the employee, but rather the communication of the broad grounds revealing the general substance of the reason for dismissal (Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12, at p. 19, per Lord Denning M.R.)

43In this case, the Commission’s reasons communicated to Mr. Gismondi “the broad grounds revealing the general substance of the reason[s]” for not proceeding with the complaint and for not altering that decision. In our opinion, having regard to its screening function and the fact that it does not have a duty to proceed with every complaint – even meritorious ones – the Commission’s reasons were adequate and sufficient in the circumstances of this case.

44The foregoing is consistent with the following remarks by Sharpe J.A. in the recent decision of the Ontario Court of Appeal in Payne v. Ontario (Human Rights Commission), supra, at paras. 156 and 157:

156In any event, procedural fairness dictates that the complainant and other parties who may be affected by a decision of the Commission be given notice of the facts, arguments and considerations upon which the decision is to be based and an opportunity to make submissions. Under the procedures adopted by the Commission, the complainant and others who may be affected by the decision are not entitled to attend the meeting at which the complaint is considered by the Commissioners. In advance of that meeting, they are provided with a copy of the Case Analysis Report that will be put before the Commissioners and are given an opportunity to make written submissions. If the Commission were to proceed on a different recommendation or to base its decision on factors or considerations undisclosed to the complainant and the others there would be no opportunity to respond and the right to fairness would be infringed.

157Finally, the complainant has a statutory right to be given the Commission’s reasons for refusing to proceed with the complaint or for refusing to refer it to a board of inquiry. It would make a mockery of that statutory right if the complainant were told that the complaint was dismissed for want of merit while the Commissioners’ real reason was want of resources or some other unexplained strategic concern.

45As noted, Mr. Gismondi was “given notice of the facts, arguments and considerations upon which the decision [of the Commission was] to be based and an opportunity to make submissions”. In addition, he was given the precise reasons for the Commission’s decisions, focussed upon the relevant criteria as set out in sections 34 and 37. The requirements of procedural fairness and natural justice, including the statutory obligation to provide reasons, were met in the circumstances.

Patent Unreasonableness – The Commission’s Exercise of Discretion

46It cannot be said that the Commission’s decisions were patently unreasonable, in our opinion. There was ample evidence on the record before the Commission to provide a rational basis for the decisions it reached.

47Mr. Gismondi’s argument that the six-month period did not start to run until December 31, 1998, was before the Commission. However, there was other evidence to support the Commission’s finding that time began to run from an earlier date. It is true that Mr. Gismondi cannot be held responsible for the period from June 17 to August 25, 1999 (the dates when he attended to complete the Intake Questionnaire and when the Commission Staff had the complaint ready to be signed). However, Mr. Gismondi had on several occasions – both in the formal complaint and in subsequent submissions – taken the position that the incidents giving rise to the discrimination complained of took place on November 23, 1998, more than six months prior to June 17, 1999.

48There is also a basis in the record before the Commission to support its conclusion that Mr. Gismondi had had ample notice of the six-month limitation period for the commencement of a complaint and that his decision not to file the complaint while negotiations were pending with the City did not show good faith in respect of the Human Rights Code process, from the Commission’s perspective. The Commission has control over its screening process under s. 34(1) of the Code. It is not bound by an agreement between the complainant and the party who is the subject of the complaint not to enforce the timeliness provisions of s. 34(1)(d), even if such an agreement existed. While the Commission did not articulate this rationale specifically, the rationale may reasonably be inferred from the Case Analysis and the Commission’s decisions: see Petro-Canada v. Canada-Newfoundland Offshore Petroleum Board, supra, at 495 per L.D. Barry J.

49The jurisprudence is clear that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory authority has been exercised in good faith and in accordance with the principles of natural justice, and where reliance has not been placed upon extraneous or irrelevant considerations, the courts should not interfere: Re Maple Lodge Farms Ltd. and Government of Canada et al. (1982), 137 D.L.R. (3d) 558 (S.C.C.) at 562; Jazairi v. Ontario (Human Rights Commission) (Div. Ct.), supra. Such is the case here.

50The application for judicial review must therefore be dismissed.

51The Respondents submitted that even if the Applicant is correct in his attack on the decisions of the Commission, the application for judicial review should be dismissed in any event. Judicial review remains a discretionary remedy and the court always has the discretion to refuse it, depending upon the circumstances: see, for example, Jazairi v. Ontario (Human Rights Commission) (Ont. C.A.), supra at 318-319. Two examples of where this refusal may be exercised are where there is an adequate alternate remedy available and where the remedy sought would have no practical effect.

52Here, Mr. Gismondi commenced a civil action against the City on May 8, 2000, at the same time as his complaint was being reviewed by the Commission. He sought damages for wrongful dismissal and a mandatory injunction requiring the City to re-employ him. The fairness of the process was directly in issue. The action was tried in November and December 2001. Gans J. gave judgment to Mr. Gismondi for the equivalent of 117 weeks in lieu of notice, but refused to order Mr. Gismondi re-instated. The City has appealed and Mr. Gismondi has cross-appealed, seeking reinstatement. The appeal is to be argued in March 2003, we are told. The Respondents therefore contend that the application should be dismissed because the parallel civil proceedings provide an adequate alternate remedy for Mr. Gismondi and that the remedy sought would have no practical effect.

53Mr. Gismondi resists this contention. He argues that age-based discrimination is not an issue in the civil action (as opposed to aged-based employment termination factors). Therefore, it would still be open to the Commission – if it heard his complaint – to grant him relief based upon discrimination, including reinstatement of his employment (even if the Courts have refused that relief).

54In view of the disposition of this matter on the natural justice and standard of review bases, it is not necessary, in our opinion, to deal with the general discretionary remedy argument raised by the Respondents.

Disposition

55The Application for judicial review is therefore dismissed.

56Mr. Riggs does not seek costs on behalf of the City. Mr. Griffin asks for disbursements in the amount of $500, and the Commission is therefore entitled to its disbursements fixed in that amount.

R.A. Blair R.S.J.

I agree: ___________________________

Ellen Macdonald J.

I agree: ___________________________

Barry MacDougall J.

Released: February 14, 2003

COURT FILE NO.: 534/01

DATE: 2003/02/14

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R.A. BLAIR R.S.J., ELLEN MACDONALD and B. MACDOUGALL JJ.

IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, Chap. J.1;

IN THE MATTER OF the Statutory Powers Procedure Act, R.S.O. 1990, Chap. S.22;

AND IN THE MATTER OF a complaint under the Ontario Human Rights Code, R.S.O. 1990, Chap. H.19, and certain decisions relating thereto dated August 16, 2000 and March 14, 2001;

Footnotes

1. 1We will elaborate on these facts in the “Analysis” portion of these reasons. The recommendations in the Section 34 Analysis did not support the City’s claim that the complaint was frivolous or in bad faith, or that it was not within the Commission’s jurisdiction.