Court File and Parties

Court File No: 124/07 Date: 2008-11-13 SUPERIOR COURT OF JUSTICE - ONTARIO DIVISIONAL COURT

Re: Mary Kwan, Applicant - and - The Ontario Human Rights Commission, Respondent

Before: LEDERMAN, SWINTON and BALTMAN JJ.

Counsel: Mary Kwan, in Person Sharon Ffolkes Abrahams, for the Respondent

Heard at Toronto: October 24, 2008

ENDORSEMENT

[1] The applicant seeks judicial review of a decision of the Ontario Human Rights Commission (“the Commission”) made under s. 34(1)(d) of the Ontario Human Rights Code R.S.O. 1990, c. H-19, as amended (“the Code”) not to deal with one of her complaints and six decisions of the Commission made under s. 36 of the Code to not refer her complaints to a Tribunal, and the upholding of those decisions upon reconsideration pursuant to s. 37 of the Code.

[2] Those decisions were based upon the recommendations of Commission staff who investigated the complaints.

[3] As is established in the jurisprudence, the standard of review of the Commission’s discretionary decisions is reasonableness.

[4] The applicant submits that the Commission’s decisions were unreasonable in that:

a) it improperly made findings of credibility and weighed evidence in coming to its decision that there had been a delay which was not incurred in good faith and, therefore, refused to deal with one complaint; and in making its decisions not to refer the other complaints to a Tribunal; and

b) it never attempted conciliation as required by s. 33 of the Code.

Complaint Against PRY Resources

[5] The Commission decided not to deal with the applicant’s complaint against PRY Resources Inc. et al, as the alleged incidents took place 16 months before the complaint was signed and filed. Section 34(1)(d) of the Code provides that where it appears to the Commission that the facts upon which the complaint is based occurred more than 6 months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay, the Commission may, in its discretion, decide to not deal with the complaint.

[6] The Commission did not accept the applicant’s explanation for the delay that she never received the draft complaint forms from the Commission and that she was on vacation during the time they were apparently sent.

[7] The Commission noted that the complaint forms were sent by Priority Post and were not returned marked “Not Delivered”. Moreover, the complainant’s address remained the same during the period in question.

[8] Furthermore, the Commission had sent out the draft complaints on three separate occasions to the applicant.

[9] It was reasonable for the Commission to conclude that the applicant had ample opportunity to fill out the complaints in a normal time period and reasonably concluded that the delay was not incurred in good faith. Moreover, given the lengthy delay, it was reasonable for the Commission to conclude that there would be substantial prejudice to the respondents in terms of loss of evidence if the matter proceeded.

The Other Complaints

[10] With respect to the other six complaints, the Commission did gather together evidence and concluded pursuant to s.36 of the Code that the evidence did not warrant an inquiry. In Patel v. Peel (Regional Municipality), [2001] O.J. No. 2837 (Div. Court), O’Leary J. comments on the nature of the discretion in the Commission under s.36 of the Code at paragraph 12 as follows:

It is obvious that Section 36 contemplates that not every complaint of racial discrimination made to the Human Rights Commission will have sufficient evidence to support it. The Commission has been given the discretion, after preliminary but full inquiry, to decide not to appoint a Board of Inquiry to hold a full-blown hearing. To argue that the Commission cannot conclude, because such may reflect on the complainant’s credibility, that there is insufficient evidence to warrant the referral of a complaint to the Board of Inquiry is to argue that the Commission has no discretion and that every complaint of racial discrimination must be referred to the Board of Inquiry.

[11] That is exactly what the Commission did in the cases before it here. It analyzed the evidence and concluded that it was insufficient to refer the complaints to a Tribunal. In this fashion it acted reasonably and it is not for the Court to second guess the decisions or to engage in a fresh analysis of the totality of the evidence.

[12] Deference must be accorded to the Commission’s expertise in its analysis of the evidence and deciding whether referral to a Tribunal is warranted.

[13] With respect to the applicant’s submission concerning conciliation, in each of the s.36 Case Analyses of the complaints that were not referred to a Tribunal, it is noted that conciliation was attempted. In every case, there was an attempt to settle on the basis of the applicant’s position, but without success. Accordingly, contrary to the allegation of the applicant, the Commission did, in fact, meet its obligation under s.33 of the Code “to endeavour to effect a settlement”.

Alleged Bias and Denial of Procedural Fairness

[14] The applicant also submits that the investigators were biased against her and were determined not to refer her complaints to a Tribunal for this reason. Furthermore, she submits that she was denied procedural fairness in that she never did receive a copy of the reconsideration report for comment before it was submitted to the Commission.

[15] The applicant is not alleging bias on the part of the Commission who is the decision-maker in this case. There is no suggestion of pre-judgment by the Commission itself. Rather, the applicant alleges bias on the part of the investigating officers and employees at the Commission. The record indicates that there is a rational basis for the recommendations made by the investigators with respect to each of the complaints. There is nothing to suggest that they had a closed mind, but rather they were amenable to persuasion in their review of the evidence put forth by both the applicant and the respondents. Thus, there is no merit to the applicant’s position in this regard.

[16] With respect to the allegation that the applicant never received the reconsideration report for response, it should be noted that with respect to three of the complaints, the respondents made no comment to the applicant’s applications for reconsideration and the grounds upon which they were based. Accordingly, there was nothing further for the applicant to comment on. With respect to the other complaints, the nature of the responses from the respondents raised no new matters and for the same reason there was no need for Commission staff to seek further comment from the applicant.

[17] In its disposition of each of the complaints the Commission’s duty of fairness was met by providing the parties with a summary of the relevant evidence that would be considered by the Commissioners and by giving the parties ample opportunity to make submissions in response. The Commission is not required to put every detail of the case against a person, but instead to provide the substance only and that was done here.

Disposition

[18] In conclusion, we find that the Commission’s discretionary decisions under s.34 and s.36 of the Code were reasonable and that the applicant’s submissions that she was deprived of procedural fairness and that the investigators were biased have no merit.

[19] The application is, therefore, dismissed.

[20] The Commission sought costs of $1,000 for the application, an amount which the applicant stated she found to be reasonable. Accordingly, the Commission will have such costs payable by the applicant.

Lederman J. Swinton J. Baltman J.

Released: November 13, 2008