COURT FILE NO.: 225/02

DATE: 20040224

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MacFarland, Forestell, Wilson JJ.

B E T W E E N:

O.N., A MINOR, BY HIS LITIGATION GUARDIAN, N.N., A MINOR, BY HIS LITIGATION GUARDIAN, AND C.K.

David Strashin, for the Applicants

Applicants

• and -

ONTARIO HUMAN RIGHTS COMMISSION

Amyn Hadibhai, for the Respondent

Respondent

HEARD: February 20, 2004

By the Court

1The applicant seeks judicial review of three decisions of the Ontario Human Rights Commission dated January 16, 2001, whereby the Commission determined that the evidence in the three cases did not warrant referral to a Board of Inquiry and the decisions made November 28, 2001, where on reconsideration the Commission remained of the view that the evidence in these cases did not warrant referral to a Board of Inquiry.

2The applicant, C.K., is the mother of O.N. and N.N. and filed complaints with the Commission on her own behalf and as litigation guardian on behalf of her children.

3The complaint in respect of the two children was that they had been subjected to unequal treatment in the provision of education services because of handicap. The mother’s complaint was to the effect that she had been subjected to unequal treatment in services because her association with her children, both of whom have handicaps.

4Counsel summarized the basis of his clients’ complaint to the effect that the children attended a small private school which in the children’s third year of attendance withdrew the reasonable accommodation it had been providing, rather than dealing with the children’s learning disabilities, and began to treat them as behavioural problems which ultimately led to the expulsion of O.N. in the fall of 1998.

5In the course of the initial investigation, Nancy Pocock, an investigation officer with the OHRC, wrote to the applicants’ then representative Mr. Berkal by letter dated November 17th, 1999 wherein she stated:

“The Respondent has not provided a formal response to the complaint and thus I cannot forward one to you”

6It would appear that statement was inaccurate. It appears that the respondents, who were then represented by Messrs. Genest, Murray, had filed a lengthy and detailed response to the OHRC by letter dated October 18, 1999. The applicants place great reliance on this fact of “non-disclosure” as they characterized it.

7The section 36 Case Analysis was completed with the staff recommendation that the complaint not be referred to a Board of Inquiry on the basis that the evidence did not warrant it.

8The Commission by its decisions dated April 4, 2000, determined not to refer the matter to a Board of Inquiry. The applicants sought reconsideration of that decision and in their submissions in respect of that decision noted, “The Respondents did not file a response to the complaint.”

9By letter dated September 7, 2000, the OHRC wrote to counsel for the respondents and to the complainants’ representative and noted as follows:

Commission Reconsideration Staff identified a procedural error that occurred in each of the above files. Specifically, the Respondent’s Responses to the complaints were received by the OHRC on or about October 1999 and were not shared with the Complainants. It is the Commission’s normal practice to share said responses with Complainants. This error was compounded when, by letter dated November 17, 1999, a former Commission Investigator informed Complainant’s Counsel that a Respondent’s Response had not been filed in any of these complaints. To date, the Respondents’ Responses have not been shared with the Complainants and in fact, the Complainants are still unaware that the Respondents did file Responses.

It is the view of Reconsideration Staff that this failure to disclose the Respondents’ Responses to the Complainants could amount to a breach of procedural fairness. Accordingly, Reconsideration staff will recommend that:

The Commission’s original decisions in the above three files be declared invalid [by the Commission]. Should the Commission agree with this recommendation, the files will be returned to the Commission’s Investigation Branch for correction of the procedural errors.

10The Commission acted on the recommendation of the Reconsideration Staff and this matter was returned to the Investigation Branch. The complainants were provided with the substance of the Respondents’ Response. Some seven pages of what was apparently a twenty-seven page letter to the OHRC was provided to the complainants. The case analysis was completed by a different investigation officer. Again, the recommendation was that the matters not be referred to a Board of Inquiry in each of the three complaints. Those analyses (3) were dated November 14, 2000.

11When the Commission made its decision it had before it, the amended complaints, the same seven pages of the Respondents’ Response that had been provided to the complainants, the s.36 Case Analysis, the complainants’ twenty-one page submissions to the Commission and counsel for the Respondents letter dated December 4, 2000 in response to the case analysis.

12The Commission, by decisions date January 16, 2001, determined not to refer the complaints to a Board of Inquiry and on reconsideration upheld its decision in reasons issued November 28, 2001.

13The applicants take the position that they ought to have been given full and complete disclosure of the Respondents’ submissions and not just the seven-page summary. As well, they should have been provided with the witness statement of the teacher Amo Lowi who they had named as a respondent in the claim filed on behalf of O.N.

14Clearly, the caselaw establishes that the applicants are owed a duty of fairness in the procedures adopted. They are entitled to be informed of the substance of the case against them and afforded a full opportunity to make responding submissions. See Layzell v. OHRC (10 December, 2003) (Ont. Div. Ct.) (unreported). The applicants have taken full advantage of their right to respond to the case analysis and the Respondents’ Responses.

15The complainants had the same material that was before the Commission when it made its decision—no more and no less. The Commission did not have before it the longer version of the Respondents’ Response, it had the same seven-page summary that had been provided to the complainants. Nor did the Commission, have the witness statement of the teacher Amo Lowi.

16It is clear from reading the case analysis prepared pursuant to section 36 that the investigator has made an effort to present a balanced view of the evidence. Lowi’s evidence is supportive of the complainants in some respects and in others it is not.

17In our view, the applicants received procedural fairness by being provided with all of the materials that were before the Commission and given full opportunity to respond to that material and bring any other matter they felt appropriate to the attention of the Commission.

18There is no evidence whatever that the earlier proceedings formed any part of the consideration of the Commission in reaching its decision in January and November of 2001.

19Whatever the shortcomings of the earlier investigation, they were remedied when the Commission sent the three complaints back to the investigation stage and fresh s.36 analyses were made.

20It is the administrative function of the Commission that is engaged under sections 36 and 37 of the Act. As was noted by the Court in Grismondi v. Ontario (Human Rights Commission), [2003] O.J. No. 419; at para. 24; (citing Boland J. from Brome v. Ontario (Human Rights Commission, [1999] O.J. NO. 760 (Ont. Div. Ct.), leave to appeal dismissed [1999] O.J. No. 2537 (C.A.), at para. 18;

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 specific policy objectives. The Commission is not under a public duty to proceed with every complaint; it has a discretion which it may exercise.

21The evidence in this case was conflicting in every material respect. The position of the applicants is that because there is conflicting evidence these cases ought to have been referred to a Board of Inquiry. With respect, that is not the law.

22For the applicants to succeed, they must satisfy the Court that the Commission’s decision not to refer the matters to a Board of Inquiry was patently unreasonable. We are not so persuaded. There was evidence before the Commission that supported its decision. And while there was also some evidence that supported the applicants’ position, the Commission was not bound to accept it over that of the Respondents.

23In conclusion, the decision was clearly one within the discretion of the Commission and it is not for this Court to intervene unless that decision is patently unreasonable. And In our view, the requirements of procedural fairness have been met.

24Application for judicial review is dismissed. Costs to the OHRC fixed in the sum of $3,000.00.

MacFarland J.

Forestell J.

Wilson J.