Campbell v. Ontario (Human Rights Commission), 2004 CanLII 7716 (ON SCDC)

Preliminary Issue: Affidavit Evidence

1On an application for judicial review, absent exceptional circumstances, this Court will not generally accept affidavit evidence. Here the applicant filed affidavit evidence as part of her “application record”. The Court reserved on the question of whether that evidence should be considered until the completion of the argument.

2We are all of the view in the circumstances of this case that it would not be appropriate to consider the affidavit evidence. Even if we had considered it, we are all of the view that it would not change the result.

Background and Analysis

3The applicant seeks judicial review of the decision of the Ontario Human Rights Commission, dated November 21, 2000, whereby the Commission determined that the evidence in this case did not warrant referral to a Board of Inquiry and of the decision made July 17, 2002 where, on reconsideration the Commission remained of the view that the evidence did not warrant referral to a Board of Inquiry.

4It is clear that the function of the Commission which is engaged under s.36 and 37 of the Act is administrative in nature. See Pieters v. University of Toronto, [2003] O.J. No. 1316 (Div. Ct.) and Gismondi v. Ontario (Human Rights Commission), [2003] O.J. No. 419 (Div. Ct.).

5Courts over and over again have recognized the fact-finding expertise of the Commission in matters of human rights. The standard of review is that of patent unreasonableness. The applicant must satisfy this Court that the decisions of the Commission are patently unreasonable. The evidentiary record demonstrates clearly that there was evidence capable of supporting the Commission’s decision. While the applicant points to some evidence and certain submissions which support her position, there is equally evidence contra.

6In our view, the evidence as a whole is entirely capable of supporting the decisions of the Commission which are before us. We are not persuaded the decisions, two of them, are patently unreasonable. It was not for the Commission at either stage before this Court to make a finding of discrimination.

7As to the estoppel argument raised, we are all of the view that the Commission cannot be bound in any way by the finding of the Board of Referees under the Employment Insurance Act. In our view, the issues before the Commission and the Board of Referees were entirely different. We are not persuaded that the record here demonstrates bias on the part of the Commission. As was noted in the case Slattery v. Canada (Human Rights Commission) at para. 55 thereof:

“In determining the degree of thoroughness of investigation required to be in accordance with the rules of procedural fairness, one must be mindful of the interests that are being balanced: the complainant’s and respondent’s interests in procedural fairness and the CHRC’s interests in maintaining a workable and administratively effective system.”

And further at para. 56:

“Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1.”

8In our view, both the case analysis and the reconsideration report demonstrate a balanced assessment of the evidence. In any event, the applicant was afforded full opportunity to make submissions in response to both those reports. Both the reports and the applicant’s responses to those reports were before the Commission in each instance before it made its decision. There is simply no evidence of bias and the application is dismissed.

Disposition

9The endorsement shall read as follows: “For reasons given this day, the application is dismissed. Costs to the OHRC fixed in the sum of $3,000 and to the respondent Hospital fixed in the sum of $4,500.”