CITATION: Xie v. Kan, 2011 ONSC 3810
DIVISIONAL COURT FILE NO.: 10-DV-1590
DATE: 2011-06-20
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., VALIN and ARRELL JJ.
BETWEEN:
WILLIAM CHAOMEI XIE
Applicant
– and –
SHARON KAN
HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
Self-Represented
Porter Heffernan/Raquel Chisholm, for the Respondent, Sharon Kan
Margaret Leighton, for the Respondent Human Rights Tribunal of Ontario
HEARD: June 17, 2011 (Ottawa)
REASONS FOR JUDGMENT
BY THE COURT:
Introduction
[1] The applicant seeks judicial review of a decision rendered on November 4, 2009 by the Human Rights Tribunal of Ontario (“HRTO”) dismissing his application that he was discriminated against by the respondent with respect to employment on the basis of race and place of origin.
Facts
[2] The respondent is the executive director of the Ottawa Chinese Community Service Centre (“OCCSC”). This non‑profit organization provides a range of services to immigrants and people of Chinese descent in the City of Ottawa.
[3] The applicant was a client of OCCSC. He applied for an employment position with OCCSC which he did not get. He alleges the reason he did not get the position was because of a discriminatory remark made by the respondent, which she denies.
[4] The HRTO application was heard on September 24, 2009 by Vice‑Chair Judith Keene. She released her reasons for dismissing the application on November 4, 2009.
[5] The grounds that the applicant advances to have us overturn the decision are confusing at best. Simply put, he appears dissatisfied with the decision because he was not successful and wishes us to substitute our own decision.
Analysis
[6] There appears to be no complaint by the applicant that he did not have a full and thorough hearing before the HRTO on September 24, 2009. A review of the decision confirms that observation.
[7] The decision by Vice‑Chair Keene reviews all of the evidence put before her. She clearly sets out the background information that was not in dispute. She clearly canvassed the evidence in conflict and gave full reasons for her findings of fact. She assessed credibility pursuant to the guidelines set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41. She gave cogent reasons why she preferred the evidence of the respondent over that of the applicant.
[8] Vice‑Chair Keene had the opportunity to review all of the evidence, observe the parties and witnesses give evidence and be cross‑examined. There was ample evidence before her to allow her to reach the conclusions she did and to dismiss the application.
[9] The Tribunal is entitled to a high degree of deference as stated in s. 45.8 of the Human Rights Code and confirmed by this Court in Shaw v. Phipps, 2010 ONSC 3884 (Div. Crt.) at para. 29.
[10] The standard of review in this case is that of reasonableness. As was stated in Shaw, supra at para. 42:
… the decisions on liability and on remedy must be respected unless they are not rationally supported - in other words, they are unreasonable (Dunsmuir, para. 42).
[11] The Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 has emphasized the need for deference in the decision‑making process of adjudicative bodies.
[12] There is no evidence before us to indicate the decision of the Tribunal was unreasonable. Indeed, we conclude that the decision of Vice‑Chair Keene was entirely reasonable. This application is therefore dismissed.
[13] The respondent is entitled to costs fixed in the amount of $1,500 payable by the applicant.
Cunningham ACJ
Valin J.
Arrell J.
Released: June 20, 2011
CITATION: Xie v. Kan, 2011 ONSC 3810
DIVISIONAL COURT FILE NO.: 10-DV-1590
DATE: 2011-06-20
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., VALIN and ARRELL JJ.
BETWEEN:
WILLIAM CHAOMEI XIE
Applicant
– and –
SHARON KAN
HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
REASONS FOR JUDGMENT
By the Court
Released: June 20, 2011