COURT FILE NO.: 194/03

DATE: 20031209 and 20031210

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, THEN and EPSTEIN JJ.

B E T W E E N:

BARBARA J. LAYZELL Applicant

• and -

ONTARIO (HUMAN RIGHTS COMMISSION) Respondent

Roy Tofilovski, for the Applicant Brian Smith, for the Respondent Commission

HEARD: December 9 and 10, 2003

LANE J.: (Orally)

1This is an application for judicial review of the decisions of the Human Rights Commission rendered on March 27, 2001 and April 17, 2002, regarding three complaints filed by the applicant, Barbara Layzell, alleging discrimination and reprisal based on her sex and her disability.

2In the decisions of March 27^th, the Commission, in exercising its jurisdiction under s.36(2) of the Human Rights Code, refused to refer Ms. Layzell’s complaints to a Board of Inquiry. In the decisions of April 17^th, the Commission, in exercising its jurisdiction under s.37 of the Code, again refused to refer the complaints to a Board of Inquiry after reconsidering its initial decisions.

3The applicant seeks orders quashing the Commission’s decisions and directing it to refer the complaints on some or all issues to a Board of Inquiry, or in the alternative, an order referring the matters back to the Commission for re-investigation and further reconsideration.

4Section 36 of the Code gives the Commissioners discretion to refer the subject matter of a complaint to the Tribunal when “it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry.” In this case, the Commission decided that the evidence did not warrant an inquiry based on their assessment of the extensive evidence obtained through investigation of the complaints and the submissions of the parties.

5Under s.37 of the Code the Commission has unfettered discretion to reverse its initial decision. However, it decided that it remained of the view that the evidence did not warrant referral of the complaints to a hearing by the Board of Inquiry.

6The history of this matter is long and complicated. Briefly summarized, Ms. Layzell was a teacher with the Scarborough Board of Education since 1976. In 1986 she was diagnosed as having multiple sclerosis. In 1994, Ms. Layzell filed a complaint with the Commission, alleging among other things, that in December of 1990 she had been inappropriately sexually touched by Mr. Bowers, the head of her department; that her principal had failed to respond appropriately to her complaint; and that he and the school board had retaliated against her for having complained by threatening to move her from guidance counselling to classroom teaching for the 1993-94 and again for the 1994-95 school years. It did not happen in the 1993-94 school year nor in the result did it happen for the 1994-95 school year.

7In October of 1996, Ms. Layzell filed a further complaint in which she claimed, among other things, that the Ontario Secondary School Teachers’ Federation did not take her harassment complaints against the head of her department Mr. Bowers seriously; failed to help her obtain appropriate accommodation from the school board with respect to her disability; and further, used a grievance that she filed regarding allocation of work as a method of trying to coerce her to withdraw her first complaint.

8On October 21^st, 1996, Ms. Layzell filed a third complaint with the Commission in which she claimed, among other things, that the school board retaliated against her for the foregoing by imposing on her a transfer to Wilfrid Laurier Collegiate. This caused her stress during the process of her grievance of the transfer. For a time her salary and benefits were reduced, or in the case of the benefits ceased, and that there was not an adequate work environment when she was forced to return to work in September of 1996.

9The respondents to these three complaints filed responses following which the Commission investigated the complaints pursuant to its statutory duty under s.33 of the Code. In addition to interviewing witnesses and obtaining documents the Commission received more than 2,300 pages of submissions and documents from Ms. Layzell and her husband which set out in considerable detail the facts upon which Ms. Layzell based her complaints.

10Section 33(1) of the Code requires the Commission to “endeavour to effect a settlement” of the complaints. There were a number of occasions when the Commission staff advised Ms. Layzell of this duty and explored the possibility of settlement. On the whole the evidence reveals that the applicant did not display much interest in the Commission’s settlement effort.

11It is common ground that in respect of both the decisions under s.36 and s.37 the standard of review is that of patent unreasonableness. See Pritchard v. Ontario (Human Rights Commission) (1999), 45 O.R. (3d) 97; Lee v. Ontario (Human Rights Commission), [2000] O.J. No. 4905; Pieters v. University of Toronto (2003), 170 O.A.C. 180 (Div. Ct.), leave to appeal to Ontario Court of Appeal refused, [2003] O.J. No. 3179. Sections 36 and 37 of the Code vest the Commission with discretionary decision-making powers. Discretionary decisions are to be granted a high level of deference by a reviewing Court. In Re Maple Lodge Farms Ltd. and Government of Canada (1982), 137 D.L.R. (3d) 558 (S.C.C.), the Supreme Court of Canada said:

“It is as well a clearly established rule 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 discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose the Courts should not interfere.”

12It is the applicant’s position before us that each of the decisions in question is so unreasonable that no reasonable authority could ever come to it and thus interference by this Court is warranted.

13The applicant relies in particular on the decision of the English Court of Appeal in Associated Provincial Picture Houses v. Wednesbury Corp., [1948] 1 K.B. 223 (C.A.) where the Court of Appeal said at p.230:

“It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere but to prove a case of that kind would require something overwhelming.”

14We turn therefore to a review of the evidence in support of the Commission and the evidence cited by the applicant in support of her position.

15Initially, we observe that over and over again the applicant’s counsel drew some evidence to our attention which it was asserted supported the contentions of the applicant, and in some cases did support these contentions to some extent. Inevitably, however, there was other evidence available which is capable of affording support to the Commission’s findings. We repeat, it is not our function to re-weigh this evidence and come to our own conclusion. On the contrary, it is our function only to ascertain whether evidence exists which is capable of supporting the Commission’s findings.

16In our view, the evidence as a whole is entirely capable of supporting the conclusions of the Commission. We will deal with some of the matters which were raised specifically before us.

17In 1994, the act of the principal of the school in which the applicant was employed in deciding to assign her a full French schedule for 1994 and 1995 is seen by the applicant as an act of deliberate removal of an existing accommodation to her serious disability. The Commission appears to have accepted that this assignment was made because the true scope of her disability was not understood by the school as she had not been entirely forthcoming about it. The first formal request made for accommodation based on her disability was not made until September, 1994 in response to this proposed assignment. We were shown some letters directed “To Whom It May Concern” from a couple of doctors in the late 1980’s, one of which referred to a neurological condition and the other referred to M.S. From other evidence it is clear that the letter relating to the neurological condition did reach the school. It is not as clear that the one containing the reference to multiple sclerosis did, since the contents of the applicant’s medical file at the school cannot now be located.

18The letter known to have reached the school can be read as implying that the neurological illness was one from which the applicant would likely recover. It is now known that by 1994 that information was badly outdated but there is no evidence that the Board or its employees were actively aware of that fact.

19When in September of 1994 the scope of the applicant’s problems was revealed, the Board responded in November, 1994 by offering an accommodation: a split schedule of guidance and French roughly, fifty/fifty. The applicant rejected it. Then, a little later in the fall came a further offer to assign her to Laurier Collegiate on a two-thirds schedule of exclusively one-on-one guidance with no classroom activity at two-thirds pay. That also was rejected. Finally, in early 1996, came an offer of a full guidance schedule to begin in the fall of 1996 with no classroom work and at a full 100% pay.

20Unfortunately, the progress of the applicant’s disease made it impossible in the spring of 1996 for her to accept any long-term classroom assignment at all. It appears to us that she concealed this fact by rejecting the offer on the specious ground that it was made without prejudice. She also contended that it was not actually received in writing but was a so-called “phantom offer”.

21The real reason for this rejection was admitted by counsel in argument before us. The applicant needed to work for 90 days to reinstate her long term disability plan but could not commit to any plan calling for classroom work. The school enabled her to do this. It provided her with an office and required her to do no work. It did this in order that she could reinstate her L.T.D. benefits. Frankly, her complaints about the smallness of this office and the lack of computer are disingenuous, having regard to the now-admitted fact that she could actually no longer perform the necessary duties.

22I want to turn for a moment to these offers that I have briefly set out. The first offer was a split schedule of 50% French and 50% guidance. That involved some classroom work. It was objected to before us as patently unreasonable in the light of what was known to the Board when it was made. I have already commented on what appears to us, and seems to have appeared to the Commission, the limited information known to the Board. Some internal Board notes were referred to, however, other evidence is capable of supporting that offer as a reasonable attempt to accommodate. In particular, the actions of the applicant and her counsel when the offer was communicated to them belie the assertion that it was obviously unreasonable. Far from rejecting it instantly, the offer was sent by counsel to the applicant’s medical advisor for comment. He reported that the offer should not be accepted. Counsel for the plaintiff then advised by letter of December 23, 1994 that she had received “further medical advice” that the plaintiff could not do the work involved and therefore the offer was rejected.

23In our view, this was evidence on which the Commission could conclude that the offer was a bona fide attempt to accommodate and that it did not call for a Board of Inquiry.

24The next offer came early in 1995. It was for two-thirds load of counselling only at Laurier Collegiate. There was a problem with the identity of the principal. But the major drawback was that it would be two-thirds assignment with two-thirds pay with a proposal to top it up with sick leave. The latter would certainly run out and this was a source of complaint that the offer was unreasonable. Shortly afterwards the plaintiff launched a grievance about the Laurier assignment and later launched a further human rights complaint.

25It was submitted that the Board’s offer as to Laurier was unreasonable because classroom work did not constitute one-third of the workload but only perhaps five percent, so the two-thirds element was unreasonable.

26There is conflicting evidence on this point. Some of it supports the one-third figure. Again, it is not our function to weigh this evidence and choose one or the other. It is there and because it is there that part of the offer is not unreasonable, it is supported by evidence. It was said that the plaintiff’s human dignity was offended by a two-thirds assignment. In the real world one must have regard to the facts and the medical facts as expressed in the opinion of Dr. Masinon and the caution which permeates that letter show that it was not unreasonable to offer a two-thirds assignment to this particular applicant.

27The third offer has in part been dealt with, however, two further points remain. It was nicknamed by the applicants as the “phantom offer” because it was said not to have been received at all because it was not received in writing. With respect, that is not so. The offer was a written offer from counsel for the Board to the Federation. The Federation passed it on to the applicant initially by a telephone call but when a letter was requested, a letter was sent detailing what was in the offer.

28It was complained further that this offer came very late in the day. It is true that it did come after the plaintiff’s condition had deteriorated to the point that she found it impossible to accept that offer, but the Board did not then know that and we are satisfied that there was no bad faith involved in the making of that offer.

29The complaint as to the Teachers’ Federation was also not referred to a Board of Inquiry by the Commission. The evidence is seen by the applicant as a litany of failure to act in her interests, unnecessary delay, attempts to coerce her into a settlement, all culminating in a letter stating that the Federation had done all it could in the light of the applicant’s unwillingness to take long term disability.

30The Commission staff saw the evidence differently. They point out that evidence of coercive efforts was absent. We saw none in our review. The resolution of related grievances and human rights complaints together is routine practice and not evidence of discrimination. The fact that the Federation did not succeed in resolving her case to her satisfaction is not evidence of discrimination against her.

31The Commission’s decisions not to refer this complaint to a Board of Inquiry, are in our view, entirely supportable upon the evidence before us and before it. It is not patently unreasonable even though other conclusions may be possible on the evidence. Once again, it is not our function to re-weigh the evidence.

32It was suggested that the Union was guilty of discrimination against the applicant because it had become a party to the discrimination by impeding the resolution of the applicant’s complaints. In particular, the applicant seeks to bring her case within the impeding principle by submitting that failure to advise her that her grievance was a loser, diverted her attention from the human rights case to the grievance and so somehow inhibited her progress in the case. This is vigorously asserted by counsel but in our view there is simply no air of reality to such a submission.

33It was said that the Commission, in making the findings which it made, had placed an improper onus on the applicant, an onus to disclose the particular disease from which she suffered. Generally speaking, there may well be no such requirement, but what there clearly is, is an obligation on an employee who suffers from a progressive disability to make whatever disclosure is reasonably and fairly necessary in order to disclose to the employer the truth about her disability. Otherwise the employer is unable to make an informed decision as to what accommodation is reasonably required.

34On the evidence before the Commission, it was open to it to find that the applicant had not co-operated to the extent necessary in this regard in 1994. It was also open to the Commission to reject, as it did, the theory that the act of the principal in 1994 was a deliberate act of reprisal or a deliberate attempt to disaccommodate her as a result of the making of her initial complaint.

35On the substantive issues therefore, we are all of the opinion that the judicial review application must fail. There is however, a further point. The applicant contends that she was denied her right to procedural fairness in several ways: (a) she says she was not interviewed by a Commission officer or someone acting on its behalf with respect to the allegations in her 1996 complaints; (b) she says the Commission assigned five different investigators to her complaints; (c) she says a representative of the Commission led her to believe that her document entitled “reply to the responses” would not be provided to the Board unless the matter was referred to a Board of Inquiry; (d) she alleges that one of the investigators, Mr. Massiah, was incompetent and also that he attempted to pressure her into resolving the matter. And finally, (e) she asserts that Ms. Meadows-Lee, the author of the analysis that was put before the Commission, advised the applicant through her solicitors that she would be recommending that the Commission refer some of the complaints, all but the so-called reprisal group, to a Board of Inquiry, thereby creating a legitimate expectation that such a recommendation would be made.

36Since item (e) is somewhat different from the first four items, I will deal with it first. The representation in question is contained in an e-mail from the applicant’s then counsel to the applicant’s husband, dated August 21^st, 2000. It states that the author of the case analysis, Ms. Meadows-Lee had told counsel that she would be recommending a Board of Inquiry on all but the reprisal issue. This representation was not of course carried out since Ms. Meadows-Lee in fact recommended against any Board at all. It was submitted that the representation raised a legitimate expectation of that result and hence tainted the procedure with unfairness.

37It appears to us that the decision whether or not to appoint a Board is in fact a substantive decision and not merely a procedural one. This is because it is the end result of the procedure that was then underway even though it would lead if made in one direction to a further procedure.

38The doctrine of legitimate expectations does not extend to substantive rights. See the case of Baker v. Canada, [1999] S.C.J. No. 39, para. 26. If however, the decision is regarded as a procedural one, the issue arises as to whether it actually created an unfairness when it was not carried through.

39First of all, one must note that the promisor, Ms. Meadows-Lee was not in a position to promise, and did not promise, that there would in fact be a Board of Inquiry appointed. The denial of a Board by the Commission is not therefore a breach of the promise given nor is there any necessary implication that the decision of the Commission would necessarily have been any different if Ms. Meadows-Lee had in fact carried out her promise. In our view, although an effort was made to suggest that the complainant did not seriously consider settlement as a result of this representation, such a position was not a reasonable response to such a representation. Given the limitations on Ms. Meadows-Lee’s authority, abandoning settlement efforts or not taking them seriously or whatever the complainant did, was not a rational response since the Board’s decision was not tied to Ms. Meadows-Lee’s recommendation.

40In the circumstances, we do not see any unfairness to the applicant in what happened that taints the process. Fundamentally, the applicant is owed a duty of fairness in the procedures adopted. She is entitled to be informed of the substance of the case against her. She is entitled to be allowed an opportunity for making responding representations or submissions. She has fully and amply taken advantage of those opportunities.

41We observe that since the matters in issue relate to her livelihood, particularly a high standard of justice is required. In our view, even judged by that high standard she received procedural fairness. Even if we were to accept the legitimacy of all of the applicant’s complaints about the procedures that the Commission employed, they would not amount to procedural unfairness. They have not prejudiced her ability to have a full investigation, and to receive notice of the facts, arguments and considerations upon which the Commission based its decision. They have certainly not prejudiced her ability to make suitable responses. We say this particularly in light of the extensive record that was before the Commission, much of which was placed before it by her, together with the fact that applicant’s counsel was unable to identify any credible way in which these alleged procedural deficiencies prejudiced his client’s rights.

42For all of these reasons, the application for judicial review is dismissed.

LANE J.

THEN J.

EPSTEIN J.

Date of Reasons for Judgment: December 10, 2003

Date of Release: January 6, 2004

COURT FILE NO.: 194/03

DATE: 20031209 and 20031210

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, THEN and EPSTEIN JJ.