Great Blue Heron Charity Casino v. Ontario (Human Rights Comm.)

Date: 2008-09-10 File No.: 545/07 Ontario Superior Court of Justice Divisional Court

Appellant: Great Blue Heron Charity Casino Respondents: Ontario Human Rights Commission and Joanne Seguin

Before: Carnwath, Perkins and Low JJ.

Counsel for the Appellant: Richard J. Charney and Sarah C. Crossley Counsel for the Commission: Kikee Malik On her own Behalf: Joanne Seguin

ENDORSEMENT

The appeal

[1] This appeal comes to us under the former subsection 42(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as it read on November 9, 2007, from the final decision of the Human Rights Tribunal of Ontario [reported 2007 HRTO 33, 61 C.H.R.R. D/293], made by Jennifer Scott, Member, on October 15, 2007. The decision found that the appellant casino had discriminated in a hiring decision against the respondent Ms. Seguin on the basis of her sex, and had not justified the discrimination on any lawful ground. The tribunal awarded Ms. Seguin damages for lost wages and general damages and ordered the casino to develop an antidiscrimination policy.

[2] The casino appealed, submitting that the tribunal erred in finding the hiring decision to be discriminatory, or in the alternative if it was correctly found discriminatory, that the tribunal erred in finding the casino had reasonable alternatives available that would not cause undue hardship. The casino also submitted that the tribunal had denied the casino the opportunity to present evidence and submissions on the appropriate remedy and had no basis to award the remedies that it awarded.

[3] The Ontario Human Rights Commission filed a factum in support of all aspects of the decision. Ms. Seguin did not file material on the appeal.

[4] The record of the tribunal filed with the court did not have a transcript or notes of the evidence taken before the tribunal. By consent of the parties, the court admitted an affidavit made by Vince Balfour, the facilities manager of the casino, who was present at the hearing of the tribunal. The affidavit provided information about how the evidence and submissions before the tribunal proceeded.

[5] We were told by counsel that administrative tribunals often have no transcript or recording of the evidence and submissions they hear and accordingly it is not uncommon for affidavit evidence to be admitted on an appeal to clarify what evidence, issues and submissions were before an administrative tribunal. Why that should be, in the age of inexpensive portable digital recording devices, is a mystery.

[6] At the appeal hearing, Ms. Seguin asked the court to permit her husband, Guy Seguin, who had acted as her agent before the tribunal, to make oral submissions on her behalf. With some reluctance and as an exceptional matter, we permitted him to do so.

Result

[7] At the conclusion of the casino's argument, we did not feel it necessary to call on the respondents in respect of any of the casino's grounds of appeal other than the question of whether the casino had been heard adequately on the issue of the appropriate remedy.

[8] For the reasons set out below, the appeal is allowed in part. The decision of the Human Rights Tribunal of Ontario is affirmed in all matters except the remedy awarded and is reversed in respect of the remedy. The complaint of Ms. Seguin is remitted to the Human Rights Tribunal of Ontario for a hearing, by a different member, of evidence and submissions on the issue of remedy only.

Undisputed facts

[9] The tribunal decision contains a full statement of the undisputed facts, which will not be repeated here. The essential facts for an understanding of the issues on appeal are set out below.

[10] On November 6, 2002, Ms. Seguin was hired by the casino as a part time washroom attendant, with responsibility to clean the women's patron and staff washrooms on Fridays, Saturdays and Sundays. Another employee, Matthew Welts, was hired on the same day into another part time washroom attendant position, with responsibility to clean the men's patron and staff washrooms on Fridays, Saturdays and Sundays. In late 2002 and early 2003 the casino was open at least 17 hours a day from Monday through Thursday, and 24 hours on Friday, Saturday and Sunday. By May, 2003, it was open 24 hours a day, seven days a week. It had very heavy customer traffic that made it impossible to close a patron washroom for cleaning during operating hours. Because of concerns about safety and liability issues, the casino had the patron washrooms cleaned at least every 30 minutes. There was only one male patron washroom and only one female patron washroom (though there was a single occupancy handicapped washroom available to either sex as well). The staff washrooms were located in an area that was not open to the patrons of the casino.

[11] Besides the two part time washroom attendants, the casino had four teams of housekeeping staff whose responsibilities were the cleaning of all areas of the casino, including cleaning the staff and patron washrooms when the washroom attendants were not on duty or were on break, on vacation or off sick. The casino had a policy of assigning only women to clean the women's washrooms and only men to clean the men's, because cleaning had to take place while the washrooms were open to patrons. For that reason the casino tried to have at least two men and at least three women on each housekeeping team, although sometimes a team had only one man. There was frequent movement of staff in the housekeeping department and it was common to move staff from a washroom attendant position to a housekeeping position.

[12] In December, 2002, a man left one of the housekeeping teams, leaving only one man on that team. The casino moved Mr. Welts into that position full time from his part time washroom attendant position, admittedly because he was a man. Ms Seguin was not considered for the position.

Standard of review.

[13] The casino and the commission submitted, and we agree, that the standard of appellate review in this case is correctness on the interpretation of the applicable legislation, and on matters of fact or mixed fact and law the standard is reasonableness: Entrop v. Imperial Oil Ltd (2000), 2000 16800 (ON CA), 50 O.R. (3d) 18 (C.A.), at par. [42]; Law Society of New Brunswick v. Ryan (2003), 2003 SCC 20, 223 D.L.R. (4th) 577 (S.C.C.), at pars. 50, 51, 55.

Prima facie discrimination

[14] The casino submitted that on the facts of this case, no case for discrimination could reasonably be made out. It submitted that the legislative and policy reasons behind its policy of assigning only men to clean the men's washroom and only women to clean the women's bore on the question of whether there was any discrimination in this case, and submitted that consideration of those reasons should have resulted in no finding of prima facie discrimination. The casino pointed to subsection 20(1) of the Human Rights Code, R.S.O. 1990, c. H.19, which reads:

20(1) The right under section 1 with respect to equal treatment with respect to services and facilities without discrimination because of sex is not infringed when the use of the services or facilities is restricted to persons of the same sex on the ground of public decency.

[15] It also relied on sections 3.7.4.1-3.7.4.3 of O. Reg. 350/06 under the Building Code Act, 1992, S.O. 1992, c. 23, which require the provision of separate washroom facilities for men and women in the casino, and sections 25-49 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, which require employers to protect employees from certain dangers in their workplace, which it submitted include the danger of harassment.

[16] There was no issue that the casino was required to maintain separate washrooms for men and women or that the staff assigned to the men's washroom, in situations where patrons would be using the washroom during cleaning times, needed to be men. The question was whether these considerations were relevant at the stage of determining whether there was prima facie discrimination, or only afterward in determining whether there was justification for it.

[17] The tribunal determined that a prima facie case of discrimination on the basis of sex was made out from the simple fact that Ms. Seguin was not considered for the vacant full time housekeeping position because she was a woman. In reaching this conclusion, the tribunal used the analysis in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., 1999 652 (SCC), [1999] 3 S.C.R. 3 [35 C.H.R.R. D/257], referred to as the Meiorin case, that the consideration of legislative and policy factors should come in only after a determination of whether there was prima facie discrimination. The tribunal considered and declined to apply the discrimination analysis in Law v. Canada (Minister of Employment ands Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, which was a case involving a challenge under the Charter to age limitations for certain benefits under a statutory pension regime. The tribunal found that Law was not properly applicable to this case and that Meiorin was.

[18] The casino submitted that the discrimination analysis in Law was properly applicable here, as this case was a case with "government overtones", because of the statutory provisions referred to above. The Ontario Human Rights Commission, in response, submitted that the tribunal was correct in applying the test first stated by the Supreme Court in O'Malley v. Simpsons-Sears, 1985 18 (SCC), [1985] 2 S.C.R. 536 [7 C.H.R.R. D/3102], subsequently reaffirmed and applied in Meiorin (above) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 646 (SCC), [1999] 3 S.C.R. 868 [36 C.H.R.R. D/129].

[19] The casino referred us to two cases decided by the Divisional Court in which the Law approach was used to determine whether there had been discrimination within the meaning of the Ontario Human Rights Code.

[20] In the first of these two cases, O.S.S.T.F. v. Upper Canada Dist. School Board (2005), 2005 34365 (ON SCDC), 78 O.R. (3d) 194 (Div. Ct.), the issue was whether the parental leave benefits under a collective agreement were under inclusive. The court accepted the arbitration board's use of the Law analysis, saying it was properly applicable in human rights cases in limited circumstances, particularly "where there is a human rights equality challenge to legislation (at par. 26). In the present case, there is no equality rights challenge to a collective agreement or benefit scheme, much less a legislative scheme. This case is an individual hiring decision relating to one employee of a private employer.

[21] The second case was Ontario (Attorney General) v. Ontario (Human Rights Commission), 2007 56481 (ON SCDC), [2007] O.J. No.4978 (Div. Ct.), which involved a human rights challenge to under inclusive legislation regarding the automatic provision of coroners' inquests. In applying the Law analysis, the court noted that use of the Law case was not automatic in cases in which an individual claimed discrimination against a private party.

[22] The casino also relied on the decision of Abella J. in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hopital Général de Montréal (2007), 2007 56481 (ON SCDC), 288 D.L.R. (4th) 138 (S.C.C.). In analyzing whether there was discrimination under Quebec human rights legislation, she found that a distinction drawn by an employer did not amount to discrimination and thus the employer did not have to justify its standard, but the majority of the court did not adopt her reasoning and analyzed the case using Meiorin.

[23] We do not agree with the casino that this case is one of government "overtones" or even context. While legislation mandates the provision of single sex washrooms in some circumstances, the legislation leaves wide open the question of how those washrooms should be staffed. The hiring, assignment and scheduling of individual cleaning staff members whose duties include cleaning those washrooms do not raise issues of equality rights in the provision of a program or benefit. We find that the tribunal was correct in applying the Meiorin analysis in this case to determine whether there was a prima facie case of discrimination on the ground of sex. We also find that there was evidence on which the tribunal could reasonably find such discrimination.

Bona fide occupational requirement and duty to accommodate.

[24] Having found prima facie discrimination, the tribunal moved on to consider whether the casino had a bona fide occupational requirement justification under section 24 of the Human Rights Code, R.S.O. 1990, c. H.19, which reads in part:

24(1) The right under section 5 to equal treatment with respect to employment is not infringed where,

(b) the discrimination in employment is for reasons of age, sex, record of offences or marital status if the age, sex, record of offences or marital status is a reasonable and bona fide qualification because of the nature of employment;.

(2) The Commission, the Tribunal or a court shall not find that a qualification under clause (1)(b) is reasonable and bona fide unless it is satisfied that the circumstances of the person cannot be accommodated without undue hardship on the person responsible for accommodating those circumstances considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

[25] The burden of proof under section 24 is on the casino and is a stringent one: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 646 (SCC), [1999] 3 S.C.R. 868, at pars. 32, 41 and 42. The parties agreed that the analysis of the requirements of section 24 proceeds according to the steps laid out in Meiorin, above, at par. 54. The tribunal concluded at pars. [48]-[49] of its reasons that there was no evidence to show the casino canvassed any alternatives to replacing a man with a man and carrying on the same as before, considered whether washroom cleaning could be done in any other way or considered whether alternatives could have been implemented without undue hardship. The affidavit of Mr. Balfour takes issue with the conclusions of the tribunal but does not establish that the casino offered evidence sufficient to meet its burden under section 24 and in particular does not address the question of considering alternatives to the existing housekeeping staff teams. Accordingly it was reasonable for the tribunal to reach the conclusion that it did on the basis of the evidence before it, particularly in light of the stringent burden of proof

Evidence and submissions on remedy.

[26] This was the area of the appeal where we had the greatest concern. There is no doubt that there was before the tribunal some evidence on the issue of what remedy would be appropriate, as that evidence is referred to at various points in the decision. See, for example, pars. 54-57. However, the affidavit of Mr. Balfour, par. 9, contains the unequivocal statement"During the hearing no submissions were heard by the Tribunal on the issue of remedy." The same paragraph relates an understanding that there was to be a separate opportunity to make submissions on the issue, and that opportunity never came. Though there was no motion or order to bifurcate the tribunal hearing, the evidence of Mr. Balfour in pars. 5, 9 and 10, not only establishes that the casino had a legitimate expectation of an opportunity to make submissions on the issue of remedy, which opportunity never came to pass, but it also shows that the tribunal in this case proceeded without any evidence of damages and under a fundamental misapprehension of the fact that the casino already had an antidiscrimination policy.

[27] Baker v. Canada (Minister of Citizenship and Immigration) (1999), 1999 699 (SCC), 174 D.L.R. (4th) 193 (S.C.C.), at pars. [23], [26] outlines the duty of fairness applicable to administrative tribunals that are required to hear and adjudicate claims between parties akin to claims heard by the courts. There is a duty to hear evidence and offer the opportunity to make submissions on the appropriate outcome, including remedy, in light of the evidence, often referred to as "natural justice". The casino submitted, and we agree, that this failure of "natural justice" required that the case be remitted to a different member of the tribunal. Because of the evidentiary problems outlined in Mr. Balfour's affidavit, we are of the view that both the evidence and the submissions of the parties respecting the appropriate remedy need to be reheard.

[28] We are mindful of the submission made to us on behalf of Ms. Seguin that she wishes this matter to be "over". We hope that it will be possible for the parties, perhaps through mediation, to come to a resolution of the outstanding issues without the need to proceed to a formal rehearing.

Costs

[29] The casino does not seek costs against Ms. Seguin. We direct counsel for the casino and the commission to confer and attempt to reach an agreement on costs. If they are unable to agree, the casino may not later than September 30 serve a written submission of not more than three pages, plus an outline of costs, and the commission may respond with a similar submission within fourteen days.