COURT FILE NO.: 113/06
DATE: 20070606
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Shari Batson and St. Lawrence College, Applicants
-and-
Ontario Human Rights Commission, Respondent
-and-
Dongling Zhao, Intervenor
HEARD: December 8, 2006
BEFORE: Cunningham, A.C.J.S.C., Lane and R. Smith JJ.
COUNSEL: Patricia Brethour, for the Applicants Raj Dhir and Allyssa Case, for the Respondent Avvy Yao-Yao Go for the Intervenor.
R E A S O N S F O R J U D G M E N T
LANE J.:
[1] The applicants apply for judicial review of the decision dated February 2, 2006 whereby the Commission referred the complaints of the intervenor, Ms. Zhao and of Ms. Manahil Mirghani to the Human Rights Tribunal of Ontario, pursuant to section 36(1) of the Human Rights Code (“Code”). Since the two complaints have been combined, I will refer to Ms. Zhao and Ms. Mirghani collectively as the “complainants”, and to them individually by name.
[2] The intervenor (“Ms. Zhao”) is a member of a visible minority and comes from China. The complainant Ms. Mirghani is also a member of a visible minority and comes from the Sudan. In the spring of 2002, they were both enrolled as second year students at the College and were taught microbiology by Ms. Batson. Each alleges that Ms. Batson deliberately failed her because of her race, colour or place of origin, contrary to the Code. The applicants respond that each complainant was failed because she was unable to demonstrate medical laboratory competency at a minimally acceptable level. A third minority student passed. One non-minority student also failed. Those who failed the practical laboratory examination were given an opportunity to take a supplemental examination. Ms. Zhao and Ms. Mirghani both failed, but the other student passed. Ms. Zhao and Ms. Mirghani both launched complaints to the Commission. The Commission exercised its discretion to combine the complaints and both complaints are now before us.
[3] The applicants raise two distinct issues. The first is that the Commission investigators engaged an expert to advise them and received and considered the expert’s report and relied on it in preparing their Case Analysis Report, without identifying the expert or his/her qualifications and without disclosing the contents of the report to the applicants. The applicants say that the refusal of this disclosure deprived them of procedural fairness as there was no opportunity to present a full response. The second point is that the presentation of the expert’s report in the Case Analysis Report given to the Commission misrepresented that report by suppressing the true reason for the initial failure of the complainants and by suppressing those parts of the report which were favourable to the applicants. The applicants submit that these facts give rise to a reasonable apprehension of bias on the part of the investigator(s) that taints the decision of the Commission.
[4] As to the disclosure point, the respondent Commission submits that it is not required to provide all the material from its file to the parties when it makes a decision under section 36. It is not adjudicating on the merits, but performing a gatekeeping function to determine if the procedure is appropriate and the evidence warrants an inquiry before the Tribunal. Further, it did make adequate disclosure of the expert’s report. As to the apprehension of bias, the Commission submits that the Case Analysis was reasonable and balanced. It submits that the so-called real reason, academic dishonesty, was not the reason given in Ms. Batson’s letters advising the complainants of their failure, but if omitting reference to the issue was an error, it was cured because the applicants’ submissions in response to the Case Analysis stated that the complainants had demonstrated a “serious lack of professional and academic integrity”.
Statutory Framework
[5] Section 36(1) provides:
(1) Where the Commission does not effect a 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. 1994, c. 27, s. 65 (12); 2002, c. 18, Sched. C, s. 1.
[6] The jurisdiction created by this section has taken different forms. At one time the Commission recommended to the Minister whether to appoint a Board of Inquiry; at present the Commission itself has the power to make the decision whether to refer to the Tribunal. But consistently, at least since Nicholson v. Haldimand-Norfolk Regional Commissioners of Police[^1] it has been clear that the Commission owes a duty of fairness in the manner in which it proceeds to make the decision. The content of that duty in the present case will be discussed later.
The Standard of Review
[7] The determination of the proper standard of review of the decision of an administrative tribunal requires the analysis put forward by the Supreme Court in a series of cases of which Pushpanathan v. Canada (Minister of Citizenship and Immigration)[^2] is a prominent example. It requires the court to determine whether the issue before the tribunal was one intended by the Legislature to be left to the exclusive jurisdiction of the tribunal. This analysis requires assessment of four factors: whether there is a privative clause, and the strength of its language; the expertise of the tribunal relative to the court; the purpose of the Act and the passage under review; and the nature of the problem.
[8] This Court has repeatedly held that, with respect to the Commission’s discretionary decisions under sections 34, 36 and 37 of the Code, the standard of review is patent unreasonableness.[^3]
[9] In Losenno v. Ontario Human Rights Commission[^4], the Court of Appeal confirmed that the standard of review in dealing with decisions of the Commission under sections 36 and 37 is one of patent unreasonableness. In exercising its jurisdiction under those sections to refer or not to refer a complaint to the Tribunal, the Commission is acting within its core jurisdiction and the standard is patent unreasonableness.[^5] The sections are gatekeeper sections and decisions as to referral engage the Commission’s core expertise. In Gismondi[^6], Blair R.S.J. wrote:
The Commission, whose relative expertise in fact finding and processing complaints in the human rights context is well-recognized, is engaging in a screening function, which is more administrative than quasi-judicial in nature.
[10] In McLean, this Court explained how the patent unreasonableness standard is applied to the Commission’s decisions under these sections of the Code:
What does the phrase "patently unreasonable" mean? In Canada (Attorney General) v. Public Service Alliance 1993 125 (SCC), [1993] 1 S.C.R. 941, Cory J. said:
"A patently unreasonable decision is one that is "evidently not in accordance with reason" or "clearly irrational".
This Court has also held in Hassaram v. Ontario (Human Rights Commission) [2005] O.J. No. 29, at paragraph 29 that "sections 34, 36 and 37 of the Code give the Commission discretionary powers that the Court should not interfere with or reverse a decision because it might have arrived at a different conclusion."
The application of the patently unreasonableness standard to the Commission's discretionary decisions reflects the deference that is owed to the Commission with respect to matters pertaining to its role and function under the Code, having regard to the Commission's well recognized expertise in fact-finding and processing complaints under the Code.
[11] Based on these authorities, I will apply the standard of patent unreasonableness to the substance of the decision in question.
Standard of Review for Procedural Fairness
[12] Where, as here, allegations are made of a breach of the duty of fairness, it is not necessary to approach the procedural matters on the basis of the same analysis as one approaches the analysis of the substantive decision; rather, the focus is on the content of the fairness duty in the circumstances. The court is required to evaluate whether the duty of fairness has been met by assessing the specific circumstances underlying the allegation and determining what safeguards and procedures were necessary in order to comply.[^7] The duty of fairness is a flexible one that varies with the circumstances. In Baker v. Canada (Minister of Citizenship and Immigration)[^8] the Supreme Court identified five factors that, as a minimum, should be considered in determining the content of the duty of fairness in the particular circumstances. These are: the nature of the decision; the nature of the legislative scheme; the importance of the decision to the individual(s) affected; the legitimate expectations of the party affected and the decision-maker’s choice of procedure. L’Heureux-Dube J. said in summary at paragraph 22:
… the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected by the decision to put forward their views and evidence and have them considered by the decision-maker.
[13] The legislative scheme sets up the Commission as a gatekeeper sorting out the complaints into those where the procedure of referring the complaint to a Tribunal hearing is appropriate and warranted by the evidence, and those where it is not. In this process it tries to mediate the complaint and only considers referral when the mediation effort fails. The Commission makes no finding of discrimination or other breach of the Code. It only considers whether the evidence warrants a hearing to determine that issue. It has investigatory, mediatory and gatekeeper functions but no decision-making function on the merits of a complaint. The nature of the decision, then, is that it is important, because it can lead to a Tribunal hearing with attendant expense and the jeopardy of an adverse ruling, but is not a decision on the merits. The legitimate expectations of someone dealing with the Commission in this function cannot be that it will hold a hearing to decide if it will hold a hearing; something short of that must suffice. Finally, the Commission’s choice of procedure must be given some deference by the court. The Commission is, after all, the body granted this power by the legislation.
[14] The content of the Commission’s duty of fairness was discussed by the Court of Appeal in Losenno, supra, where the court said that procedural fairness dictated that the complainant and other affected parties be given notice of the facts, arguments and considerations on which the decision will be based, and an opportunity to make submissions. However, the duty imposed on the Commission did not require that it disclose to the parties the actual correspondence from the other side, provided that the parties know the case that they have to meet.
[15] In Syndicat des employes de production du Quebec et de L’Acadie v. Canada (C.H.R.C.)[^9] Sopinka J. dealt with procedural fairness on the part of an investigative body and adopted the words of Lord Denning in Selvarajan v. Race Relations Board[^10]:
In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover, it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.
[16] In Federation of Women’s Teacher’s Associations of Ontario v. Ontario (Human Rights Commission)[^11], this court said that the duty of fairness of an investigative body is to inform an interested party of the substance of the case and allow an opportunity to make submissions. There was no requirement to disclose the whole file but a duty to provide a fair summary of the relevant evidence. Thus the substance of the information relied on suffices.
Analysis of the Procedural Fairness Issue
[17] The Commission submits that it met its duty of fairness by providing the section 36 Case Analyses to the applicants and by receiving and considering their submissions. The applicants submit that the Case Analysis Report was inadequate as disclosure because it did not reveal the “identity, findings or analysis” of the expert retained to advise the investigators and that this defect deprived them of the opportunity to respond to “the most damaging parts” of the report. The applicants submit that fairness required that they have an opportunity to respond to the expert before the Commission made its section 36 decision.
[18] The Commission rejects this analysis, claiming that it revealed much important information, in particular:
- the substance of the expert’s qualifications: that the expert was a senior instructor in microbiology in a medical laboratory science program at another post-secondary institution in Ontario;
- details of the data given to the expert;
- that the identities of the complainants were not disclosed;
- that the substance of the expert’s findings was disclosed as to the supplemental tests: they were at an appropriate level of difficulty for college students but that the time allowed would be a factor;
- that the degree of difficulty of the tests given to the complainants exceeded both the test given to the white student and the final practical tests.
[19] The Commission also submits that the complainants were indeed able to respond to the expert’s report, and did so at some length. Further disclosure and submissions were not necessary for fairness at the preliminary stage of the section 36 decision. The Commission emphasizes the limited screening role of the Commission, focusing only on whether there is enough evidence to warrant a referral, and contrasting that role to the full hearing, accompanied by full disclosure of the investigator’s file, which the Tribunal will hold.
[20] The applicants were able to respond to the expert’s findings, to the extent that they were discussed in the Case Analysis Report, without knowing the identity of the expert; they did know he/she held a position which enabled the giving of an opinion on the matters referred to him/her. For example, a portion of the expert’s opinion was summarized in paragraph 20 of the Case Analysis Report, dealing with Ms. Zhao’s admitted failure to record the results of one test, and her explanation blaming Ms. Batson for having taught inconsistently. The expert is reported to have stated that there may have been validity in the point, but the complainant should have recorded the results. Later, at paragraph 22, the expert is reported as characterizing the decision to fail Ms. Zhao as “harsh” and as suggesting a deduction of marks. The applicants’ submissions responding to the Case Analysis Report deal directly with this at pages 5 and 6 (Record pages 77-78), pointing out that the complainants failed because they did not identify that the cultures each contained two separate organisms and tested only one. There then follows a long paragraph explaining how the failure to identify the two organisms in a culture described to the students as “mixed” represented a serious lack of competency for which a simple deduction of marks was an inappropriate response, a failure was indicated.
[21] On page 79 of the Record, the response deals effectively with the argument, apparently supported by the expert, that the pattern of bacteria given to the two complainants was more difficult than the one given to the third student taking the supplementary test. The response points out that the pattern was an appropriate one for a college level test, (also supported by the expert) and that an analysis showed that there were more tests involved in the pattern given to the third student than in those given to the complainants.
[22] Despite their complaints about not knowing who the expert was, the applicants were able to deal with these points and put their position before the Commission.
[23] In my view, the disclosure made and the opportunities for comment meet the test for fairness appropriate for the particular jurisdiction being exercised, that of a gatekeeper. The Commission made no findings of fact or as to the existence of racial discrimination. It sent the matter to the Tribunal to find the facts. The basis of its decision is the existence of unanswered questions, requiring an inquiry with witnesses. For example, there is conflicting evidence as to the allocation of the mixes to the three students: was it random or did Ms. Batson allocate them? Were they actually comparable or not? Other examples are referred to in the next section of these reasons.
Reasonable Apprehension of Bias
[24] The applicants submit that the manner in which the investigator chose the passages from the expert’s report which were referred to in the Case Analysis Report was objectionable, and amounted to “cherry-picking”, by selecting only the passages that supported the claim that there had been racism and suppressing those that supported the applicants’ defence. In particular, the investigator failed to advise the expert that the two students had been failed as a result of “academic dishonesty”; and failed to re-interview Professor Batson after receiving the expert’s report. This conduct affected the view of the report which the Commission adopted and was unfair to the applicants.
[25] The Commission responds that Commission staff acted fairly and did not demonstrate a “closed mind”, impervious to persuasion. The summary of the expert’s evidence was fair and neutral and not confined to information favouring the students. For example, the Zhao Case Analysis Report sets out the expert’s opinion that Ms. Zhao should have, but did not, record the fact that she did not note the results of the susceptibility test, and she should have given her reasons for not doing so. The opinion of the expert that the supplementary exams were at “an appropriate level of difficulty for college students”, favoured the case of the applicants, but the expert also notes that the level of difficulty would increase if time was limited. As to re-interviewing Ms. Batson, the Commission submits that this was a matter within the discretion of the investigators and deference should be granted to them in making this kind of decision. Only if there has been a failure to investigate crucial evidence should the court intervene: Slattery v. Canada (Human Rights Commission)[^12].
[26] The Commission also points out that the letters to the two complainants advising them of their failure did not refer to academic dishonesty as the basis for the failing grade, but referred to laboratory problems. It was submitted that this explained the lack of reference to academic dishonesty in the Case Analysis Report. That allegation was contained in an internal letter as early as May 23, 2002[^13] and so is no mere afterthought. However, as noted above, the response to the Case Analysis Report did make the academic dishonesty allegation and so the issue was before the Commission panel when it decided the matter.
[27] Where, as here, the Commission does not give separate reasons, the Case Analysis Report may be taken to be its reasons: Sketchley v. Canada (Attorney General)[^14]. Study of the Case Analysis Report and the supporting documents in the Application Record and the Record of Proceedings reveals that there is much conflicting evidence of importance to the issue of whether there was racial discrimination involved. Whether the non-minority student received more notice than the complainants; whether the bacterial mixes were of equivalent difficulty; whether the allocation of the mixes was random or was chosen by Ms. Batson are all examples of such unanswered questions. Each of these issues is set out in the Case Analysis Report in what seems to me to be a fair manner.
[28] The Commission submits that, even if there was some lack of fairness in the Case Analysis Report, the case law does not support the position of the applicants that the Commission’s decision was tainted by it. No allegation of actual bias is made against the Commission, but the position is taken that the information relied on was tainted with bias which must have affected the decision. In Brett v. Board of Directors of Physiotherapy[^15] this court dealt with a case where the material on which the Board made its decision to send the matter on for hearing was inadequate and concealed some problems in the prosecution case. There were “serious and unjustifiable errors” by staff, including deleting material helpful to the defence from a witness statement. Nevertheless, the court said:
While this excessive zeal is regrettable, and most unattractive, it does not suggest prejudgement by the board. In looking at the entire body of evidence before the board, it does not appear that the decision to prosecute would have been any different had these matters affecting credibility been disclosed to the board.
[29] Similarly, in the present case, there is no suggestion of actual bias by the Commission, and the decision to refer appears to be well-founded in the unanswered questions raised by the evidence. If there was excessive zeal, which I have not detected, the body of evidence assembled is nevertheless capable of justifying the referral to the Tribunal. If there is other evidence favouring Ms. Batson, the issues of credibility raised by such evidence would require a hearing to resolve.
[30] In my view, the decision of the Commission was not patently unreasonable, was not tainted by any bias on the part of the investigators and was not arrived at by a proceeding offensive to the principles of procedural fairness applicable to it.
[31] For these reasons, I would dismiss the application for judicial review. Costs may be addressed in brief written submissions within thirty days of the release of these reasons.
Lane J.
Cunningham A.C.J.S.C.
R. Smith J.
DATE:
[^1]: (1978), 1978 24 (SCC), 88 D.L.R. (3rd) 671 (S.C.C.) [^2]: 1998 778 (SCC), [1998] 1 S.C.R. 982. [^3]: Gismondi v. Ontario (Human Rights Commission, (2003), 2003 21371 (ON SCDC), 169 O.A.C. 62 at paras. 23-25 (Div. Ct.); Hassaram v. Ontario (Human Rights Commission), [2005] O.J. No. 29 at para. 29 (Div. Ct.); McLean v. Ontario (Human Rights Commission), [2006] O.J. No. 1216 at para. 17 (Div. Ct.) [McLean]. [^4]: (2004) 2004 10123 (ON SCDC), 242 D.L.R. (4th) 550 (Div. Ct.); (2005) 2005 36441 (ON CA), 78 O.R. (3d) 161 (C.A.); leave to appeal refused [2005] S.C.C.A. No. 531. [^5]: Losenno supra, paragraph 9 (C.A.) per Rosenberg J.A. [^6]: Gismondi v O.H.R.C. (2003) 2003 21371 (ON SCDC), 169 OA.C. 62 (Div. Ct), paragraph 24. [^7]: See Gismondi v. Ontario (O.H.R.C.) (2003) 2003 21371 (ON SCDC), 169 O.A.C. 62 (Div. Ct.); Moreau-Berube (2002) 2002 SCC 11, 209 D.L.R. (4th) 1 (S.C.C.) [^8]: 1999 699 (SCC), [1999] 2 S.C.R. 817. [^9]: (1989) 1989 44 (SCC), 62 D.L.R. (4th) 385, at 428-9 (S.C.C.) [^10]: [1976] 1 All E.R. 12 at 19 (C.A.) [^11]: (1988) 1988 4794 (ON SC), 67 O.R. (2nd) 492 (Div. Ct.) [^12]: 1994 3463 (FC), [1994] F.C.J. No. 181, paras. 55, 56. [^13]: Application Record, Tab 3B page 63, Batson to Smith. [^14]: 2005 FCA 404, [2005] F.C.J. No. 2056 (Fed. C.A.) at para. 37. [^15]: (1992) 1992 7698 (ON SC), 9 O.R. (3d) 613 at 618. (Div. Ct.)