Guild Automotive Restorations Inc. v. Pilkey, 2013 ONSC 3129

CITATION: Guild Automotive Restorations Inc. v. Pilkey, 2013 ONSC 3129

DIVISIONAL COURT FILE NO.: 443/12

DATE: 20130531

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: GUILD AUTOMOTIVE RESTORATIONS INC. o/a THE GUILD OF AUTOMOTIVE RESTORERS and FRANK MOREA v. CHRISTINA PILKEY and HUMAN RIGHTS TRIBUNAL OF ONTARIO

BEFORE: Justices Lederman, Swinton and Harvison Young

COUNSEL: Elisabeth Widner and Asha James, for the Applicant Toby Young and Kingsley Laurin, for the Respondent Christina Pilkey Brian Blumenthal, for the Respondent Tribunal

HEARD AT TORONTO: May 28, 2013

E N D O R S E M E N T

Swinton J.

Introduction

[1] The applicant Guild Automotive Restorations Inc. brings an application for judicial review of a decision of the Human Rights Tribunal (“the Tribunal”) dated August 3, 2012. The Tribunal upheld the respondent Christina Pilkey’s complaint of discrimination on the basis of gender and reprisal for asserting her human rights and awarded her $15,000 for general damages and six months lost wages. The applicant also seeks review of the Tribunal’s refusal to reconsider the initial decision.

[2] For the reasons that follow, I would dismiss the application, as the Tribunal reached a reasonable decision.

The Standard of Review

[3] The parties all agree that the standard of review of the decision is reasonableness (see s. 45.8 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended; Shaw v. Phipps, 2012 ONCA 155 at para. 10.)

[4] The applicant suggests that the reasonableness and adequacy of the reasons should be assessed in light of the fact that there was no transcript of the proceedings. In my view, there is no heightened obligation on the Tribunal to give a particular type of reasons in the absence of a transcript or a recording. The task for this Court is to consider the reasons given and to determine whether they provide an intelligible explanation for the decision and whether the result falls within a range of reasonable, acceptable outcomes, given the facts and the law.

Was the finding that gender was a factor in Ms. Pilkey’s discipline unreasonable?

[5] The Tribunal found that gender was a factor in Mr. Taylor’s decision to discipline Ms. Pilkey for swearing. The Tribunal found that “there can be no other explanation for this discipline” than the fact that Ms. Pilkey is a woman.

[6] The applicant argues that the Tribunal’s decision on this issue was unreasonable because the Tribunal failed to take into account a number of factors:

• The context in which the swearing took place,
• The fact that Ms. Pilkey had sworn previously and not been disciplined,
• The fact that Mr. Taylor, the new manager, was more rigorous in his management style, and
• The fact that a male employee had been terminated because of an incident that included swearing.

[7] As well, the applicant argues that the Tribunal unreasonably refused to make a finding as to the nature of the relationship between Ms. Pilkey and the former manager, Mr. D’ Innocenzo, and should have made a finding of the exact words used by Ms. Pilkey on October 29, 2009.

[8] There was no need for the Tribunal to make