Citation and Court Information
CITATION: Seguin v. OHRC, 2010 ONSC 278
DIVISIONAL COURT FILE NO.: 358/09
DATE: 20100111
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, LEDERMAN AND SACHS JJ.
BETWEEN:
JOANNE SEGUIN Complainant (Appellant in Appeal)
– and –
ONTARIO HUMAN RIGHTS COMMISSION Commission (Respondent in Appeal)
-and –
GREAT BLUE HERON CHARITY CASINO Respondent (Respondent in Appeal)
Counsel:
In Person
No One Appearing
Sarah Crossley, for the Respondent, Great Blue Heron Charity Casino
HEARD at Toronto: January 11, 2010
BY THE COURT (ORALLY)
[1] In a decision dated October 15, 2007, the Ontario Human Rights Tribunal found that the Casino had discriminated against Ms. Seguin, the appellant in this appeal. They awarded ten thousand dollars by way of damages for that discrimination.
[2] The Casino appealed the Tribunal’s 2007 decision to the Divisional Court on both the finding of discrimination and the remedy awarded. On September 10, 2008, the Divisional Court dismissed the Casino’s appeal as to the finding of discrimination, but allowed the appeal as to remedy and referred the matter back to another Tribunal to determine the issue of remedy. On June 30, 2009 the Tribunal rendered its decision on remedy and awarded $5,000.00 by way of general damages, $1,426.67 for lost wages and pre-judgment interest.
[3] As set out in paragraph 1 of the appellant’s factum, this is an appeal from the Tribunal’s decision of June 30, 2009, a decision that was focused solely on the issue of remedy since this was the task the Tribunal was given by the Divisional Court.
[4] In the hearing before us the appellant’s fundamental argument was that there should be a new trial in a forum where transcripts would be available so that she would have the opportunity to present full evidence as to the nature of the discrimination that she suffered and, more particularly, to demonstrate that that discrimination was wilful and reckless. That issue was beyond the jurisdiction of the Tribunal being appealed from and it is beyond our jurisdiction.
[5] The 2009 Tribunal’s task was simply to deal with the issue of remedy and, in doing so, the Tribunal was bound by the direction of the Divisional Court, which upheld the findings as to discrimination that the previous Tribunal had made - one of which was that the discrimination was not intentionally directed at Ms. Seguin and that the Casino adopted the requirement that a man be hired in the honest and good faith belief that it was necessary in order to ensure same gender cleaning of the men’s washrooms (see para. 44 of the 2007 Tribunal’s decision).
[6] On the question of remedy, the appellant takes issue both with the quantum of general damages awarded and with the calculation as to loss of wages. The Tribunal’s award was based on the evidence before it, awards given in similar circumstances in other human rights cases and the 2007 Tribunal’s findings as to the nature of the discrimination. The calculation as to lost wages took into account the possibility that if the appellant had been allowed to participate in a job competition for the position, she might not have succeeded in getting the position.
[7] At this point we pause to note that one of the issues before us was whether this hearing is an appeal or a judicial review. If it is the former, the appellant would be required to demonstrate either an error of law or a palpable and overriding error of fact. If it is the latter, i.e. a judicial review, the legislated standard of review is patent unreasonableness.
[8] It is our view that, given the recent amendments to the Ontario Human Rights Code, our jurisdiction is by way of judicial review. Given this, our conclusion is that the Tribunal’s 2009 decision as to remedy was not only not patently unreasonable, it was reasonable. Even if considered as an appeal, we find no error of law and no palpable and overriding error of fact.
[9] For these reasons, the appeal is dismissed.
COSTS
[10] With respect to costs, as we indicated to Ms. Seguin during the submissions on costs, the normal rule is that the successful party is entitled to costs and we see no reason to depart from that general rule in this case. However, bearing in mind that this matter has had a difficult and long history and the circumstances of the appellant, we are fixing the costs at $1,000.00.
FERRIER
LEDERMAN J.
SACHS J.
Date of Reasons for Judgment: January 11, 2010
Date of Release: January 14, 2010
CITATION: Seguin v. OHRC, 2010 ONSC 278
DIVISIONAL COURT FILE NO.: 358/09
DATE: 20100111
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, LEDERMAN AND SACHS JJ.
BETWEEN:
JOANNE SEGUIN Complainant (Appellant in Appeal)
– and –
ONTARIO HUMAN RIGHTS COMMISSION Commission (Respondent in Appeal)
-and –
GREAT BLUE HERON CHARITY CASINO Respondent (Respondent in Appeal)
REASONS FOR JUDGMENT
Date of Reasons for Judgment: January 11, 2010
Date of Release: January 14, 2010