Court File and Parties

Court File No: 310/05 Date: May 31, 2007

SUPERIOR COURT OF JUSTICE - ONTARIO DIVISIONAL COURT

Re: RENE MADURO Applicant

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THE ONTARIO HUMAN RIGHTS COMMISSION and NEFF KITCHENS MANUFACTURERS LTD., NICOLE NEFF, and TYRONE LAM Respondent

Before: JENNINGS, LEDERMAN and KITELEY JJ.

Counsel: Charles A. Ocran, for the Applicant Kikee Malik, for the Respondent, Ontario Human Rights Commission

Heard at Toronto: May 22, 2007

ENDORSEMENT

[1] The Applicant, Rene Maduro, has applied for judicial review of the decision of the Ontario Human Rights Commission (the “Commission”), which was affirmed on reconsideration, to not refer her complaint to the Ontario Human Rights Tribunal (the “Tribunal”).

[2] The Commission’s decisions under sections 36 and 37 of the Ontario Human Rights Code R.S.O. 1990, c.H-19 (the “Code”) are entitled to curial deference and the exercise of the Commission’s discretion under these provisions is subject to judicial review on the standard of patent unreasonableness: see Pieters v. University of Toronto (2003), 2003 32238 (ON SCDC), 170 O.A.C. 180 at 187 (Div. Ct.).

[3] The Applicant initiated a Human Rights complaint alleging discrimination and harassment in her employment because of her disability.

[4] The Commission investigated the complaint. However, it refused to refer the matter to the Tribunal pursuant to section 36 of the Code for essentially three reasons:

(a) There was insufficient evidence to indicate that the Applicant had been subjected to discrimination and harassment;

(b) The evidence indicated that the Applicant was unable to fulfill the essential duties of her original position, and an attempt at light duties was not successful. The employer created a permanent alternative position for the Applicant that accommodated her needs and restrictions;

(c) There was insufficient evidence to indicate that disability was a factor in the termination of the Applicant’s employment. Rather, the evidence indicated that she was dismissed as a result of progressive discipline (failure to wear proper attire, inappropriate behaviour, refusing to carry out instructions of her supervisor).

[5] This decision was upheld on reconsideration pursuant to section 37 of the Code.

[6] On this Application, counsel for the Applicant argued that the investigation conducted by the Commission was insufficient and incompetent in that:

(a) it relied on the statements made by other employees when it should have known that because of fear of jeopardizing their own position in the company they would be reticent to say anything negative about their employer;

(b) it did not interview the Applicant’s physicians as to the nature of her condition and whether she needed further medical treatment;

(c) it accepted from the employer a photograph taken of the location of the water coolers which apparently pre-dated the incident involving the instruction to clean the water coolers without questioning its authenticity.

[7] As counsel for the Applicant conceded in argument, there was nothing improper about conducting extensive interviews with the employees as they would be the best source in investigating workplace issues.

[8] Moreover, the Commission did have medical evidence from both the Applicant and the Workplace Safety and Insurance Board. It was unnecessary to obtain further evidence from the Applicant’s physicians themselves as the employer had accepted that she had been suffering from a disability and that medical restrictions in terms of her employment were necessary. The Applicant’s position was that she had been assigned tasks outside these restrictions for which her employer did not appropriately accommodate her. A failure to contact the physicians, therefore, does not indicate an incompetent investigation.

[9] Furthermore, the Commission was aware of the Applicant’s position that the discipline measure in respect of failing to follow instructions to clean the water coolers was merely a ruse to justify dismissal on the fallacious ground of insubordination and, therefore, knew of her concern that the photograph was contrived.

[10] In Slattery v. Canada Human Rights Commission, 1994 3463 (FC), [1994] 2 F.C. 574, which was an application for judicial review of the Canadian Human Rights Commission’s dismissal of a complaint and finding that an inquiry by a tribunal was not warranted, Nadon J. commented about the challenge to the nature of the investigation in question in that case at paragraph 69 as follows:

The fact that the investigator did not interview each and every witness that the applicant would have liked her to and the fact that the conclusion reached by the investigator did not address each and every alleged incident of discrimination are not in and of themselves fatal as well. This is particularly the case where the applicant has the opportunity to fill in gaps left by the investigator in subsequent submissions of her own. In the absence of guiding regulations, the investigator, much like the CHRC, must be master of his own procedure, and judicial review of an allegedly deficient investigation should only be warranted where the investigation is clearly deficient. In the case at bar I find that the investigator did not fail to address any fundamental aspect of the applicant’s complaint, as it was worded, nor were any other, more minor but relevant points inadequately dealt with that could not be dealt with in the applicant’s responding submissions. [emphasis added]

[11] We find that the investigation by the Commission in the instant case was not “clearly deficient.” There was no failure on the part of the Commission to address any substantive point raised by the Applicant and the nature of the investigation conducted was both thorough and competent.

[12] There was ample evidence to support the Commission’s conclusion that adequate attempts to accommodate the Applicant had been made, that she was terminated because of progressive discipline, and that there was insufficient evidence of discrimination. The conclusions made by the Commission regarding the sufficiency of evidence fall squarely within its discretion and expertise, and its decision and reconsideration of that decision not to refer the Applicant’s complaint to a Tribunal cannot be said to be patently unreasonable.

[13] The Application, therefore, is dismissed. The Respondent Commission has been successful and is entitled to its costs of the Application. Given the Applicant’s circumstances, modest costs in the amount of $1500. are fixed, payable by the Applicant to the Respondent Commission.

Jennings J.

Lederman J.

Kiteley J.

Released: