CITATION: Xu v. Ontario (Human Rights Tribunal), 2013 ONSC 762

DIVISIONAL COURT FILE NOS.: 11-DC-1746 and 12-DC-1834

DATE: 2013/01/31

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Gui Xian Xu, Applicant

AND:

Human Rights Tribunal of Ontario, The Ottawa Hospital and The Ontario Nurses Association, Respondents

BEFORE: Reilly, Aston, Herman JJ.

COUNSEL: D. Bruce Sevigny, for the Applicant

Margaret Leighton, for the Human Rights Tribunal of Ontario

Raquel Chisholm, Porter Heffernan, for The Ottawa Hospital

HEARD in Ottawa: January 30, 2013

ENDORSEMENT

BY THE COURT

[1] This is an application for judicial review of two decisions of Adjudicator Hewat: the decision on merits, dated June 23, 2011; and the decision on remedy, dated February 16, 2012.

[2] The applicant is a nurse. She filed complaints with the Human Rights Tribunal of Ontario against her employer, the Ottawa Hospital, and the Ontario Nurses’ Association. In her decision on the merits, the Adjudicator found that the Hospital had failed in its duty to accommodate the applicant’s disability to the point of undue hardship after October 1, 2009. The Adjudicator dismissed the remainder of the applicant’s claims against the Hospital.

[3] The Adjudicator also dismissed the applicant’s claim against the Ontario Nurses’ Association. The applicant does not seek review of this dismissal.

[4] In the decision on remedy, the Adjudicator awarded the applicant monetary compensation of approximately $35,000 for lost wages, general damages, compensation to cover the applicant’s transportation costs, pension benefits and reimbursement for the overpayment of premiums and dental expenses.

Standard of Review

[5] The parties agree that the applicable standard of review is reasonableness.

[6] In Shaw v. Phipps, 2012 ONCA 155, 347 D.L.R. (4th) 616 (Ont. C.A.) the Court of Appeal had the occasion to consider the standard of review applicable to an adjudicator’s decision under the Human Rights Code, R.S.O. 1990, c. H. 19:

In recognition that the Adjudicator “has a specialized expertise” in the area, the Divisional Court explained that the reasonableness standard accords “the highest degree of deference…with respect to [the Adjudicator’s] determinations of fact and the interpretation and application of human rights law” (at para. 41). Deference is maintained unless the decision is not rationally supported. The ultimate question is whether the result falls within the Dunsmuir “range of possible, acceptable outcomes which are defensible in respect of the facts and the law”, as the Divisional Court determined it did (at para. 85).

[7] There is, however, no need to determine a standard of review with respect to issues of procedural fairness and natural justice. Non-compliance with the rules of procedural fairness may, on its own, be the basis upon which to set aside a decision. (see Audmax Inc. v. Ontario (Human Rights Tribunal), 2011 ONSC 315, 328 D.L.R. (4th) 506 (Ont. Div. Ct.))

Decision on the Merits, June 23, 2011

[8] The applicant puts forward four bases for setting aside the Adjudicator’s decision with respect to the merits of her claims:

(i) it was unreasonable of the Adjudicator to conclude that there was no discrimination in view of the fact that the applicant applied for various jobs in 2007 and 2009, yet received no interviews;

(ii) it was unreasonable of the Adjudicator to conclude that there was no discrimination with respect to the applicant’s return to work in August 2007;

(iii) it was unreasonable of the Adjudicator to conclude there was no discrimination given the lack of accommodation in the Neurology Department; and

(iv) it was a denial of procedural fairness to deny the applicant the right to call three witnesses to testify to differential treatment.

(i) Applications for vacancies

[9] In February-March 2007, the applicant applied for three different vacancies. She did not receive an interview for any of these jobs.

[10] The applicant submits that the Adjudicator did not provide any analysis of whether the Hospital had tried to accommodate the applicant with respect to these three positions. Instead, the Adjudicator simply concluded that she was satisfied that the Hospital had followed the permanent accommodation process.

[11] However, elsewhere in the reasons, the Adjudicator refers to other evidence that is relevant to this issue. The applicant testified that she did not have prior experience in two of the fields, the applicant did not provide any information as to why she believed she was qualified for one of the positions, the applicant never filed a grievance with respect to the postings and did not raise concerns with the Occupational Health Safety and Emergency Preparedness Department of the Hospital (“OHSEP”), and the applicant did not include this concern in her original human rights complaint.

[12] There were other vacancies between July and October 2009. The applicant was concerned that managers were asked to review her résumé but were not told about her limitations and restrictions. In her submission, this is contrary to the duty to accommodate because it means that, in screening her application, managers focused solely on the job requirements without turning their minds to the requirement to accommodate.

[13] The Hospital’s explanation was that it withheld the information until later in the hiring process in order to ensure that managers focused solely on the candidate’s qualifications without making assumptions about the candidate’s ability to do the job because of a disability.

[14] In her reasons, the Adjudicator found that the Hospital’s explanation was appropriate in order to ensure that a candidate was considered solely based on qualifications and experience.

[15] The Adjudicator’s finding should not be considered in isolation. In reaching her conclusion that the Hospital had not discriminated, the adjudicator considered evidence with respect to the Hospital’s permanent accommodation process as a whole. The evidence was that the OHSEP Disability Management Coordinator reviewed every job posting. If there was a vacant position that might be compatible for a particular employee seeking permanent accommodation, the manager would be contacted and would be required to place the posting on hold. During the process, no other candidate could be considered until the employee’s résumé was reviewed to determine if the employee met the requirements and qualifications of the position.

[16] There was also evidence of various meetings and communications with the applicant in August and September 2009 and actions undertaken in an effort to find a permanent position for the applicant. The Adjudicator gave an example of the Hospital’s efforts when she described the Hospital’s attempts to find a position for the applicant in the Dialysis Unit.

[17] In view of this evidence, it was not unreasonable for the Adjudicator to conclude that the Hospital had complied with its duty to accommodate up to October 2009.

(ii) Return to work, August 2007

[18] The applicant submits that the Adjudicator’s conclusions with respect to her return to work were unreasonable.

[19] The applicant submits that it was discriminatory of the Hospital to require her to return to work on August 27, 2007, prior to the expiration of her sick leave period. She refers, in particular, to the doctor’s note the Hospital had received indicating that she was on sick leave until August 31, 2007, and a further medical report, provided on August 10, 2007, which recommended that the applicant’s return to work be reassessed after three weeks.

[20] A meeting was held on August 22, 2007. According to the notes of that meeting, the applicant was advised she could be temporarily accommodated beginning August 27, 2007. The meeting concluded with the understanding that the applicant would discuss the arrangement with the Ontario Nurses Association who would advise whether the applicant would return to work on August 27, 2007. There was, however, no response from the Association or the applicant. As such, the Hospital did not know what the applicant decided to do until she arrived at work on August 27. The Hospital did not have the applicant scheduled for that day.

[21] In view of this evidence, it was not unreasonable of the Adjudicator to find that the Hospital did not require the applicant to return to work on August 27, 2007.

[22] The applicant also submits that it was unreasonable of the Adjudicator to conclude that the letter she received on September 11, 2007 was not discriminatory. The letter advised the applicant that the manner in which she had returned to work on August 27, 2007 was inappropriate.

[23] There was evidence that the applicant did not advise the manager that she had a medical certificate when she arrived at work on August 27, 2007, and evidence that she left the Unit without advising the manager.

[24] Given this evidence, it was not unreasonable for the Adjudicator to conclude that the letter was not discriminatory.

(iii) Vacancy in Neurology Clinic

[25] The applicant submits that it was unreasonable for the Adjudicator to conclude that the Hospital had satisfied its duty to accommodate in view of the lack of accommodation with respect to a position in the Neurology Clinic.

[26] The applicant worked in the Neurology Clinic in a temporary position from July to October 2009.

[27] The Adjudicator stated in the reasons that there was no vacancy in the Neurology Clinic. The applicant agrees that there was no vacancy. However, she points to the fact that the Clinic regularly employed part-time nurses and scheduled overtime hours.

[28] The applicant was accommodated in so far as she was placed in a temporary position in the Neurology Clinic. The applicant concedes that the duty to accommodate did not require the Hospital to create an additional position. If that is the case, it is unclear what else the Hospital could have done.

(iv) Three witnesses

[29] The applicant submits that the Adjudicator’s ruling that she could not call three witnesses to testify about differential treatment constituted a denial of procedural fairness.

[30] The Adjudicator’s reason for disallowing this evidence was that the hearing was addressing the applicant’s complaint of individual discrimination, not a complaint of systemic discrimination. As such, the hearing would be limited solely to allegations related to the treatment of the applicant.

[31] The applicant points to the fact that the Hospital’s witness testified as to the existence of tension between nurses and modified nurses, while she was not allowed to call her witnesses on this point. Furthermore, in her reasons, the Adjudicator states: “[T]here was no evidence to support the applicant’s claim that the general work environment on F7 and the relationship between nurses and modified nurses was very hostile.”

[32] All of the applicant’s complaints concern alleged discriminatory treatment against her as an individual. She did not include a claim of systemic discrimination. The adjudicator’s ruling was reasonable in these circumstances. It was, in any case, an evidentiary ruling and does not rise to the level of a breach of procedural fairness.

Conclusion

[33] The highest degree of deference is to be accorded to decisions of the Human Rights Tribunal on judicial review with respect to its determinations of fact and its application of the Human Rights Code.

[34] In determining whether reasons are justified, transparent and intelligible, and whether the result is reasonable, it is important to consider the reasons as a whole, rather than parsing individual sentences and paragraphs.

[35] There was ample evidence before the Adjudicator to enable her to conclude that the Hospital did not discriminate against the applicant up to October 2009, when it decided to place the applicant in the Labour Market Re-entry Program. This conclusion fell within a range of possible, acceptable outcomes and was defensible both in respect of the facts and in respect of the law.

[36] It was not a denial of procedural fairness to deny the applicant’s request to call three witnesses to testify about their experience, in view of the fact that the applicant’s claims were individual, not systemic, in nature.

Decision on remedy, February 16, 2012

[37] The applicant submits that the Adjudicator’s denial of the applicant’s request for reinstatement was unreasonable.

[38] In particular, the applicant contends that the Adjudicator improperly relied on the lack of “conclusive evidence” with respect to the availability of a permanent position and the applicant’s entitlement to be placed in a specific position. In her submission, this disregards the legal onus on the Hospital to establish that it has accommodated up to the point of undue hardship.

[39] The applicant further submits that the Adjudicator erred by relying on the case in Krieger v. Toronto Police Services Board, 2010 HRTO 1361 (Ont. H.R.T.) for the proposition that reinstatement is an appropriate remedy in a case where an applicant is able to return to the pre-injury position or duties.

[40] The Adjudicator did not, however, state that reinstatement was necessarily limited to cases in which a return to a pre-injury position was possible. Rather, the Adjudicator distinguished the applicant’s case from that in Krieger. The Adjudicator in Krieger noted that reinstatement orders are rarely requested or ordered in human rights cases and considered why reinstatement was nonetheless appropriate in the case before her.

[41] Similarly, in the case at hand, the Adjudicator considered whether reinstatement was an appropriate remedy based on the circumstances of the case before her. She did not rely solely on the lack of conclusive evidence with respect to the availability of a permanent position and the applicant’s entitlement to be placed in a specific position. Rather, the Adjudicator went on to consider the fact that, even if the applicant might have been a candidate for a particular position, there was no evidence to indicate she would have been the successful candidate. Unlike the situation in Krieger, where there was an actual position to which the individual could be reinstated, the Adjudicator was dealing with a series of hypotheticals.

[42] The Adjudicator’s fashioning of an appropriate remedy is owed a particularly high degree of deference (1147335 Ontario Inc. (Weston Property Management) v. Torrejon, 2012 ONSC 1978, [2012] O.J. No. 1485 (Ont. Div.Ct.) at para. 10; Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221 (Fed. C.A.) at para. 301, dissent adopted in Public Service Alliance of Canada v. Canada Post Corp., 2011 SCC 5, [2011] 3 S.C.R. 572). The duty to accommodate to the point of undue hardship applies to the liability decision not to the remedy.

[43] In these circumstances, the Adjudicator’s decision with respect to remedy falls within the range of acceptable outcomes and is justifiable, transparent and intelligible.

Conclusion

[44] For the reasons given, the application for judicial review is dismissed.

[45] The applicant and the Hospital agreed that the successful party would receive $15,000, inclusive, for each of the two applications for judicial review. Costs were neither sought by nor sought against the Human Rights Tribunal.

[46] The applicant will therefore pay costs to the Hospital in the amount of $30,000, inclusive.

Reilly J.

Aston J.

Herman J.

Date: January 31, 2013