CITATION: D.F. v. Human Rights Tribunal of Ontario, 2012 ONSC 1530
DIVISIONAL COURT FILE NO.: 283/11
DATE: 20120308
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: D.F. v. Human Rights tribunal of ontario, children’s aid society of hamilton, andrea nicol and judy blair
BEFORE: Justices Swinton, Pepall and Harvison Young JJ.
COUNSEL: D.F. in person
Frank Cesario and Kathryn J. Bird for the Respondent Children’s Aid Society of Hamilton, Andrea Nicol and Judy Blair
Margaret Leighton and James Schneider for the Respondent Human Rights Tribunal of Ontario
HEARD AT TORONTO: March 6, 2012
E N D O R S E M E N T
The Court:
Overview
[1] This is an application for judicial review brought by D.F. (the “Applicant”), seeking review of a decision of the Human Rights Tribunal of Ontario (the “Tribunal”) dismissing his complaint of discrimination against the Children’s Aid Society of Hamilton (the “CAS”) and its employees Andrea Nicol and Judy Blair (collectively, the “Respondents”). The Applicant also seeks review of the Tribunal’s refusal to reconsider the original decision.
Background
[2] The CAS became involved with the applicant, his former wife and their two children as a result of conflict surrounding the applicant’s access to the children. After a few initial interventions, the file was transferred to the Family Services Department for ongoing management. Ms. Nicol, a Family Services Worker, was assigned to the file. The respondent Ms. Blair was her supervisor.
[3] The record indicates that in the course of the CAS involvement, concerns had arisen about the Applicant’s behaviour. On March 13, 2007, a meeting was held with him during which the CAS requested that he undergo a mental health assessment. If he did not do so, the CAS indicated that it would seek a protection order for the children, with the result that the Applicant’s access would be supervised.
[4] The Applicant refused to provide a mental health assessment. Sadly, after the March 13 meeting, he refused to have further contact with the children.
[5] The Applicant subsequently brought an application under the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) alleging discrimination by the Respondents due to sex, family status and disability. The disability complaint was based on the fact that the Applicant has Multiple Sclerosis (“MS”).
[6] The Tribunal held a four-day hearing with oral evidence, cross-examinations, documentary evidence and submissions. It dismissed the application in a decision dated January 7, 2011. In a reconsideration decision dated April 19, 2011, the Tribunal found that the application for reconsideration was mostly “an attempt to re-argue the case” and that the “new” evidence proffered was irrelevant.
Issues on the Application for Judicial Review
[7] The Applicant challenges the Tribunal decisions on three grounds. First, he submits that the decisions are unreasonable. Second, he submits that his rights to procedural fairness and natural justice were denied. Third, he submits that the Tribunal was biased.
The Standard of Review
[8] The applicable standard of review of the decision and the reconsideration is reasonableness, as was noted by this Court in Shaw v. Phipps, 2010 ONSC 3884 (Div. Ct.), and several subsequent decisions.
[9] There is no need to undertake an assessment of the standard of review with respect to matters that involve a breach of natural justice or denial of procedural fairness. Where applicable requirements of natural justice and procedural fairness have not been met, the Court will intervene: Ontario (Commissioner, Provincial Police) v. MacDonald, 2009 ONCA 805 at paras. 35-37.
Were the decisions reasonable?
[10] In determining whether the decision of a tribunal is reasonable, a court on judicial review considers the reasons of the tribunal and asks whether they meet the standard of justification, transparency and intelligibility, and whether the decision falls within a range of possible, acceptable outcomes, in light of the facts and the law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47).
[11] The Tribunal properly identified the legal questions to be addressed: whether there was differential treatment accorded that resulted from discrimination on the basis of sex, family status or disability.
[12] It concluded that the evidence did not support the Applicant’s claim of discrimination on the basis of sex and family status. In applying the Code to the evidence, the Tribunal stated at para. 50:
Under the Code the question is not whether the applicant was treated fairly by the respondents or whether the respondents acted appropriately with respect to L.F. [the Applicant’s former wife]. Under the Code, the question is whether any differential treatment was due to the fact that the applicant is male and/or a father. In my view, there is no evidence at all to show that any differential treatment as between the applicant and L.F. was due to the fact that the applicant is a male and/or a father. Rather, in my view, any differential treatment as between the applicant and L.F. was due entirely to the actual circumstances of the case and different levels of concern about the possibility of harm to the children.
[13] With respect to the claim of discrimination on the basis of disability, the Tribunal stated at paras. 55 and 56:
In this case, the respondents asked the applicant for permission to speak to his doctors. One of the reasons for this was that the respondents wanted to know if the fact that the applicant had MS was a cause for concern. I note, however, that this arose in the context of an increasing concern about the applicant’s behaviour and the question of whether or not there were mental health issues that might result in harm to the children. The respondents queried whether the applicant’s MS might be a factor. However, in my view it is clear that the request for medical information and the mental health assessment was not based on the fact that the applicant had MS. These requests were based on the applicant’s behaviour. Given the applicant’s behaviour, the request for information about his MS was not, in my view, prompted by discriminatory views of MS but rather by the respondent’s mandate to investigate concerns about issues that may result in harm to children.
The indication on the Comprehensive Assessment form that the applicant had a “moderate physical impairment or illnesses resulting in only limited impact on child caring capacity” does raise the possibility of a presumption of limitations because the applicant has MS. However, there is no evidence that this notation on the form played any significant role in the overall circumstances of this case and no evidence that the applicant experienced any injury to dignity, feelings or self-respect as a result. To the extent that there was any presumption of limitation because of the applicant’s MS condition, I find that it did not amount to discrimination under the Code and, even if it did, that the applicant is not entitled to any damages as a result.
[14] The Applicant takes issue with the Tribunal’s findings respecting a meeting held on March 13, 2007 at which he taped the discussion. In particular, he argues that the Tribunal erred in stating that he turned the tape recorder on and off, and seeks leave to file new expert evidence before this Court to show that the tape recorder was not turned on and off. The Applicant also takes issue with the Tribunal’s treatment of evidence concerning a transcript of a telephone conversation which he had surreptitiously taped between his ex-wife and child on March 4, 2007. He argues that the transcript shows that his ex-wife was inciting the child to make false accusations of abuse about the Applicant to the police.
[15] The new evidence that the Applicant seeks to file does not meet the test in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, as the evidence was not relevant to the central issues of discrimination before the Tribunal. Moreover, even if the tape recorder was not turned on and off during the March 13 meeting, this evidence would not likely have affected the decision of the Tribunal that there was no discrimination against the Applicant on the basis of sex or family status.
[16] The Tribunal reviewed the extensive evidence that was presented in the course of the four day hearing. Even if certain factual findings of the Tribunal were in error, they are peripheral to the central finding of the Tribunal that any differential treatment was not based on prohibited grounds of discrimination.
[17] When the decision is read as a whole and in light of the evidence before the Tribunal, the decision is reasonable. The Applicant is, in effect, asking this Court to rehear the matter and interfere with the findings of fact made by the Tribunal. That is not our role on judicial review, as the findings of fact by the Tribunal are deserving of deference.
[18] Similarly, we find no basis for interfering with the reconsideration decision. The Tribunal found that the request for reconsideration was, for the most part, an attempt to re-argue the case. The Tribunal reasonably concluded that the Applicant had not provided any evidence that would “potentially be determinative” on the finding that there was no discrimination.
Was there a denial of procedural fairness?
[19] None of the grounds advanced by the Applicant constitute a denial of procedural fairness in the circumstances of the case. We are satisfied that he was afforded full opportunity to cross-examine the Respondents’ witnesses, and was permitted to make full submissions to advise the Tribunal of those aspects of the evidence which he considered to be most important. We do not agree that limitations, such as the failure to allow him to call scientific evidence as to whether his tape recorder was turned on and off or the requests that he curtail questioning of peripheral relevance to the main issue, constituted a denial of procedural fairness in the circumstances.
[20] The Applicant argues that the fact the Tribunal found Ms. Nicol to be credible is an indication in the circumstances of a breach of natural justice. We disagree.
Was the Tribunal biased?
[21] In determining whether there is a reasonable apprehension of bias on the part of a decision-maker, a court must ask:
what would an informed person, viewing the matter realistically and practically - and having throught the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. (R. v. S. (R.D.), 1997 324 (SCC), [1997] S.C.J. No. 84 at para. 31)
The party alleging bias has the onus of proving it.
[22] The Applicant rests his allegation of bias, in part, on the treatment accorded to the Respondents’ counsel during the hearing. He also points to the statement of the Tribunal Vice Chair that he did not think anything turned on the presence of the police at the March 13, 2007 meeting. He also submitted that the Tribunal’s treatment of the Hamilton CAS evidence relating to MS constituted another indication of bias.
[23] In our view, a reasonable observer “ viewing the matter realistically and practically – and having thought the matter through” would not conclude that the Tribunal had pre-judged the case or was biased against the Applicant.
Conclusion
[24] Accordingly, the application for judicial review is dismissed.
[25] The Tribunal does not seek costs and none are awarded to it.
[26] The CAS Respondents seek costs of $5,000.00. The Applicant objects, on the grounds that he did not name them as a party and they brought no motion to be added. It was at the outset of the hearing that the Court raised the issue of their status and ordered that they be named as respondents.
[27] The Applicant should have named the CAS Respondents as parties from the outset, as they were the respondents to his application before the Tribunal, and his application for judicial review sought to overturn the decision of the Tribunal. The Applicant shall pay costs to the CAS Respondents in the amount of $5,000.00, an amount that is modest, given the lengthy record and factum that the Respondents’ counsel had to review, and fair and reasonable in the circumstances.
Swinton J.
Pepall J.
Harvison Young J.
DATE: March 8, 2012