Losenno v. Ontario (Human Rights Comm.)

640/02

2004-06-21

Ontario Divisional Court

CHRR Doc. 04-149

Christopher Losenno Applicant

v.

Ontario Human Rights Commission Respondent

v.

Metroland Inc. Intervener

Date of Decision: June 21, 2004

Before: Ontario Superior Court of Justice, Divisional Court, O'Driscoll, Lane and Jennings JJ.

Reasons by: Jennings J.

Court File No.: 640/02

Appearances by: Kevin D. MacNeill, Counsel for the Applicant Anthony Griffin and Amyn Hadibhai, Counsel for the Respondent Peter Brady and Rachael Arbour, Counsel for the Intervenor

HUMAN RIGHTS COMMISSIONS — discretion to dismiss complaint — role of human rights commission — obligation to recommend settlement — SETTLEMENT — effect of settlement agreement

APPEALS AND JUDICIAL REVIEW — human rights commission's decision to dismiss complaint — ADMINISTRATIVE TRIBUNALS — COURTS — standard of review of court over administrative tribunals

Summary: The Ontario Divisional Court dismissed an application for judicial review of Ontario Human Rights Commission decisions regarding a complaint filed by Christopher Losenno. The Commission twice refused to refer Mr. Losenno's complaint to the Ontario Board of Inquiry for hearing.

Metroland Inc. employed Mr. Losenno as a press helper and then a rollman's helper. When, because of a knee injury, he was no longer able to perform the physical labour of that job, Metroland accommodated him by placing him in the position of intermediate accounting clerk.

However, Mr. Losenno's physical injuries prevented him from climbing the stairs to the second floor where Metroland's office was located, and Metroland refused to make further accommodation. In the course of the Human Rights Commission's investigation of Mr. Losenno's complaint, Metroland made an offer to settle. Because of this offer, the Commission decided not to refer the complaint for hearing.

The issue on review was whether the Commission could consider the offer to settle when deciding whether to refer the complaint for hearing. The Court found that it could, and that to decide otherwise would place an inappropriate restriction on the gatekeeper function given to the Commission. The Commission was correct in considering the resolution proposed by Metroland. In making its determination, the Commission assessed the adequacy of the offer against the likelihood that the Board would grant the remedy that the complainant sought. In making that assessment, it was acting within its core function and its area of expertise. In view of the settlement offer, a referral to a Board of Inquiry was not the appropriate procedure. It cannot be said that the impugned conclusion was patently unreasonable.

The Court dismissed the application.

CASES CITED

A.U.P.E. v. Lethbridge Community College, [2004] 1 S.C.R. 727, [2004] S.C.J. No. 24 (QL), 2004 SCC 28: 17

Garnhum v. Canada (Attorney General) (1996), 1996 11870 (FC), 120 F.T.R. 1, 30 C.H.R.R. D/152: 27

Gismondi v. Ontario (Human Rights Comm.) (2003), 2003 21371 (ON SCDC), 169 O.A.C. 62, CHRR Doc. 03-323 (Sup.Ct.): 22

Jazairi v. Ontario (Human Rights Comm.) (1997), 1997 12445 (ON SC), 146 D.L.R. (4th) 297, 29 C.H.R.R. D/428 (Ont. Ct. (Gen.Div.)): 29

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 24

Payne v. Ontario (Human Rights Comm.) (2000), 2000 5731 (ON CA), 38 C.H.R.R. D/367 (Ont. C.A.): 31

Pieters v. University of Toronto (2002), 2003 32238 (ON SCDC), 170 O.A.C. 180, CHRR Doc. 03-324 (Sup.Ct.): 22

Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982: 16

Rush & Tompkins Ltd. v. Greater London Council, [1988] H.L.J. No. 49: 32

Scott v. CPAC (Crescent Gardens) Inc. (2003), CHRR Doc. 03-168, 2003 BCSC 222, [2003] B.C.J. No. 293 (QL): 28

Seneca College of Applied Arts and Technology v. Bhadauria, 1981 29 (SCC), [1981] 2 S.C.R. 181, 2 C.H.R.R. D/468: 25

LEGISLATION CITED

Canada

Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 44(3)(b)(i): 27

Alberta

Labour Relations Code, R.S.A. 2000, c. L-1, s. 142(2): 19

British Columbia

Human Rights Code, R.S.B.C. 1996, c. 210: 28

Ontario

Government Efficiency Act, S.O. 2002, c. 18: 12

Human Rights Code, R.S.O. 1990, c. H.19

s. 33: 25

s. 34: 34

s. 36: 10, 34

s. 36(1): 13

s. 37: 11

[1] The applicant, Christopher Losenno, applies for judicial review of two decisions of the Ontario Human Rights Commission ("Commission"). The first decision, dated October 9, 2001, was that the Commission would not refer the applicant's complaint of discrimination in employment to a Board of Inquiry for a full hearing. In the second decision, dated July 17, 2002, the Commission upheld its original decision.

[2] For the reasons which follow, I would dismiss the application.

FACTS

[3] The applicant began working for the intervener, Metroland Inc. ("Metroland") as a press helper in 1988. He became a rollman's helper in 1991 and worked in that position until 1996. The job required physical labour. In February 1996, because of an injury to his knee that occurred in a non-work-related accident in 1992, the applicant could no longer perform the work required.

[4] Metroland accommodated the applicant with the position of intermediate accounting clerk. The applicant worked at that position until March 25, 1997. By that time, his injuries prevented him from climbing stairs to the second floor where Metroland's office was located. Metroland was unwilling to make further accommodation. The applicant left his employment. On September 18, 1997, he filed a complaint with the Commission alleging discrimination on the basis of handicap.

[5] In January 2001, after investigation, the Commission's staff ("staff") indicated to the applicant and to Metroland that it would be recommending to the Commission that the Commission refer the subject matter of the complaint to a Board of Inquiry.

[6] In 1999, staff had inquired of complainant's counsel what his client, the applicant, was seeking to settle his complaint. Counsel supplied the Commission's investigator, on a "without prejudice" basis, with a checklist of damages and expenses being sought.

[7] Upon learning about the staff's intentions to recommend to the Commission that it refer the matter to a Board of Inquiry, Metroland requested further investigation by staff on the issue of whether, without undue hardship to Metroland, the applicant's job site could be moved to the first floor of Metroland's premises.

[8] Prior to further investigation being undertaken, Metroland informed the Commission of the particulars of an offer to settle it made to the complainant.

[9] On July 6, 2001, a second staff analysis was disclosed to the parties. It recommended that the complaint not be referred to a Board of Inquiry because of the adequacy of Metroland's settlement offer. Counsel for the applicant and counsel for Metroland made submissions in response to the staff analysis.

[10] On October 9, 2001, the Commission made a decision under s. 36 of the Code [R.S.O. 1990, c. H.19] that it would not be referring the subject matter of the complaint to a Board of Inquiry because:

(a) the remedy offered by Metroland was one that the applicant could reasonably expect to receive if the case proceeded to a Board of Inquiry; and

(b) the offer made by Metroland was reasonable with regard to general, specific and public interest remedies.

The Commission concluded that "the procedure of referral to the Board of Inquiry is not appropriate in this matter".

[11] Pursuant to s. 37 of the Code, the applicant filed extensive submissions requesting that the Commission reconsider its decision not to refer the complaint to the Board of Inquiry. On January 17, 2002, the Commission upheld its original decision that the referral of the complaint to the Board of Inquiry would not be appropriate.

[12] This application for judicial review was then launched.

[On November 26, 2002, the Government Efficiency Act, S.O. 2002, c. 18 (Bill 179) received Royal Assent. By the terms of that statute, the Ontario Human Rights Commission Board of Inquiry became the Human Rights Tribunal of Ontario. The Tribunal is composed of such members as are appointed by the Lieutenant Governor-in-Council.]

STANDARD OF REVIEW

[13] Section 36(1) of the Code states:

36(1) Where the Commission does not effect the settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject matter of the complaint to the Tribunal.

The plain language of the section indicates that in deciding to exercise its discretion whether to refer the subject matter of the complaint to the Tribunal, the Commission must determine two discrete matters:

(a) whether the procedure of referral is appropriate, and

(b) whether the evidence warrants referral.

[14] It is trite to say that we are to adopt a functional and pragmatic approach, as established by the Supreme Court of Canada, in reviewing the decision of this administrative body. An application of that approach will not necessarily result in a determination that a single standard of review applies.

[15] In my opinion, in reviewing the exercise of the Commission's mandate under s. 36, two standards of review apply.

[16] When considering the material to which it may have regard in determining the two matters to which I have referred, the Commission is interpreting its enabling statute and determining a question of law as to the scope of its jurisdiction. It is usually the case with questions of law pertaining to jurisdiction that a standard of correctness applies. A tribunal either has jurisdiction, or it has not; there is no in-between position. See: Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982.

[17] However, in Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28, [2004] S.C.J. No. 24 (QL), the Supreme Court appears to hold that where interpretation of a statutory power requires an understanding and analysis of issues within the expertise of the Tribunal, deference is due to the Tribunal.

[18] The decision was released on the first day on which this application was argued, and was brought to our attention following argument by counsel for the Commission. In view of the decision to which we have come, we did not call upon counsel for further submissions.

[19] In Lethbridge, an Arbitration Board had to consider whether the phrase ". . . . [where] an employee has been discharged or otherwise disciplined by an employer for cause . . . ." contained in s. 142(2) of the Alberta Labour Relations Code [R.S.A. 2000, c. L-1], applied to a situation where an employee was found to have been terminated for incompetence. The Board held that it did.

[20] Giving judgment for the Court, Iacobucci J. said in § 19–20:

. . . . The interpretation of s. 142(2), however, presupposes an understanding and analysis of labour law issues, militating in favour of deference to the board. Further, the nature of the question as one of more or less precedential value is mixed. While decisions of arbitration boards are not precedential and binding per se, substantial arbitral consensus does often arise with respect to particular legal developments, and where jurisdiction to interpret legislation is shared between courts and arbitrators, prior judicial decisions are regarded as binding; see Brown and Beatty, supra, at § 1:3300. The nature of this issue, namely whether arbitration boards may substitute damages in lieu of reinstatement, suggests heightened precedential value given the existence of conflicting lines of jurisprudence and widespread application, which in turn calls for less deference to the board.

Having generally considered the above factors, I conclude that the proper standard of review of the board's decision regarding the interpretation of s. 142 is that of reasonableness.

[21] It is arguable that in determining what material it could review in exercising its mandate under s. 36, the Commission required a special understanding of human rights issues and upon review by us, pursuant to Lethbridge, a standard of reasonableness applies. However, for the reasons that follow, in our opinion that question need not be answered, because we find that the Commission was correct in its decision.

[22] On the other hand, the courts have repeatedly held that the standard of review of the exercise of the Commission's discretion under s. 36 is that of patent unreasonableness. See, for example: Gismondi v. Ontario Human Rights Commission (2002), 2003 21371 (ON SCDC), 169 O.A.C. 62 at 69 [CHRR Doc. 03-323 at § 25]; Pieters v. University of Toronto(2003), 2003 32238 (ON SCDC), 170 O.A.C. 180 at 188–89 [CHRR Doc. 03-324 at § 25].

ISSUE

[23] The issue in this application for judicial review is whether the Commission could consider Metroland's offer to the complainant in deciding that referral of the complainant's complaint to a Board of Inquiry was not appropriate.

ANALYSIS

[24] As was stated by the Supreme Court of Canada in Ontario (Human Rights Commission) and O'Malley v. Simpsons-Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536 [7 C.H.R.R. D/3102], the purpose of human rights legislation is not to find fault and punish misconduct but rather to identify and provide relief for victims of discrimination.

[25] Section 33 of the Code specifically directs the Commission to "investigate a complaint and endeavor to effect a settlement". Effecting a settlement has been described as the first duty of the Commission. See Seneca College of Applied Arts and Technology v. Bhadauria, 1981 29 (SCC), [1981] 2 S.C.R. 181 [2 C.H.R.R. D/468].

[26] It appears to me that if resolution of a dispute is to be achieved by effecting a settlement, the position of the parties as to what they deem to be appropriate to bring about settlement, must, of necessity, be explored by the Commission and its officers.

[27] There would appear to be jurisprudential support for the proposition that, in pursuing resolution, settlement proposals of the parties are relevant considerations. For example, when interpreting s. 44(3)(b)(i) of the Canadian Human Rights Act [R.S.C. 1985, c. H-6], which gives the Canadian Human Rights Commission a discretion to dismiss a complaint if it is satisfied that "having regard to all circumstances of the complaint, an inquiry into the complaint is not warranted", the Federal Court held (Garnhum v. Canadian Human Rights Commission (1996), 1996 11870 (FC), 120 F.T.R. 1 [30 C.H.R.R. D/152 at § 30–31]):

[T]he terms of an offer of settlement made during the conciliation stage of a complaint, even if conciliation is unsuccessful, are one of the "circumstances of the complaint". On a plain reading of par. 44(3)(b) of the Act, they are to be considered by the Commission . . . .

I agree with the Commission's position that the reasonableness of the terms of an offer of settlement is a factor that may legitimately be considered in this balancing exercise.

[28] Similarly, the Supreme Court of British Columbia, in considering a provision of the British Columbia Human Rights Code [R.S.B.C. 1996, c. 210] giving the Commissioner a discretion to dismiss a complaint where the Commissioner was of the view that proceeding with all or part of a complaint would not "further the purposes of the Code", concluded that the power thereby conveyed permitted the Commissioner to consider settlement offers when deciding whether a matter would proceed to a hearing (Scott v. CPAC (Crescent Gardens) Inc., 2003 BCSC 222, [2003] B.C.J. No. 293 (QL) [CHRR Doc. 03-168]).

[29] Counsel has advised that an Ontario court has yet to rule on the question of whether the Commission can decide not to refer a complaint to the Tribunal because of an offer received. However, in Jazairi v. Ontario Human Rights Commission (1997), 1997 12445 (ON SC), 146 D.L.R. (4th) 297 [29 C.H.R.R. D/428], settlement positions were discussed tangentially. In that case, objection was taken by the complainant to a reference in the Commission investigator's case summary indicating that the complainant refused to accept an employer's settlement offer. The Divisional Court observed that [at § 30]:

[T]he Commission was entitled to review information contained in the Case Summary including the fact of settlement discussions notwithstanding that the parties entered into the settlement discussions on a without prejudice basis for the purpose of effecting settlement.

[30] It is the position of the applicant that settlement discussions and offers to settle can have no place in the Commission's obligation to determine whether it is appropriate to refer a matter to the Tribunal. As counsel put it: no settlement discussions or offers made can be considered unless the Commission or the investigator is requested to do so by the parties. Counsel candidly conceded that the result of his position was that an applicant can insist upon a hearing by the Tribunal, provided the evidence warrants it, notwithstanding the reasonableness of any offer to resolve the dispute made by the person against whom the complaint is brought.

[31] In support of the applicant's position, counsel relies strongly upon a statement taken from the judgment of Sharpe J.A. in Payne v. Ontario Human Rights Commission(2000), 2000 5731 (ON CA), 38 C.H.R.R. D/367 [at § 155] (Ont. C.A.):

. . . . As I see it, the only legitimate factor to be considered by the Commission in the exercise of its discretion [under s. 36] is whether there is any merit in the complaint. If the Commission were to base its decision on some extraneous factor, the court would intervene on judicial review.

I do not think Payne assists the applicant. Payne was not a case in which a settlement offer was considered. In Payne, the Commission decided not to refer the complaint to a Board of Inquiry because, in its opinion, the evidence did not warrant referral. At issue was an allegation by the complainant that the Commission might have based its decision not only on the evidence disclosed to the complainant, but also on extraneous factors apparently referred to in an affidavit made by a former Commissioner and filed in support of the application. The majority of the Court of Appeal indicated that in the particular circumstances of that case, the complainant could examine, under oath or affirmation, the Commission's registrar to see whether such factors were in fact put before the Commissioners by Commission staff. It was against that background that Sharpe J.A. made the statement to which I have referred. I am unable to conclude that Sharpe J.A. intended to say that under no circumstances could the Commissioners consider the propriety of a referral to the Tribunal in the face of an available resolution.

[32] In addition, the applicant submits that the common law relating to privilege attaching to settlement discussions prohibits the Commission from considering offers made. Reliance is placed upon the decision of the House of Lords in Rush & Tompkins Ltd. v. Greater London Council, [1988] H.L.J. No. 49, a case on the extent of protection to be granted to "without prejudice rule" communications between parties to litigation.

[33] I am of the opinion that "without prejudice protection" does not arise in this matter. The traditional "without prejudice rule" is a rule governing the admissibility of evidence. In my opinion, it is inapplicable to the investigatory procedure mandated by the Code for exploring complaints and seeking resolution of disputes. It may be that, if the Commission determines that a matter should go forward to a Tribunal for a full hearing, the evidentiary rule would prevent settlement discussions from being placed before the Tribunal, but that is not the issue before this Court.

[34] In my opinion, to determine that the Commission and its staff could not do what was done in this case would be to place an inappropriate restriction on the gatekeeper function given to the Commission by ss. 34 and 36 of the Code. Put another way, accepting the position put forward by the applicant's counsel would be to remove from the Commission's function the duty to determine whether a matter should go before the Tribunal, and give that decision to the applicant. That, in my opinion, would be clearly contrary to the purpose of the Code expressed in the clear language of ss. 34 and 36.

[35] I conclude that the Commission was correct in considering the resolution proposed by Metroland in determining whether the matter should go to a Tribunal. In making that determination, the Commission assessed the adequacy of Metroland's offer in the face of the likelihood of the applicant's demands being granted by a Tribunal. In making that assessment, the Commission was acting squarely within its core function and its area of expertise. There was ample evidence to warrant the conclusion reached by the Commission that, in view of the settlement position put forward by Metroland, a referral to a Board of Inquiry was not the appropriate procedure. I cannot say that the impugned conclusion was unreasonable, let alone patently unreasonable.

[36] The applicant also submitted that he did not receive fundamental fairness in the manner in which his complaint was received, investigated and considered. The evidence before us was that the Commission and its staff followed its normal procedures in dealing with the complaint and I see no merit in this ground.

[37] In the result, the application is dismissed.

[38] Neither the Commission, nor the intervener, requested costs and there will be no order as to costs.