Court File and Parties

CITATION: Big Inc. v. Islam, 2015 ONSC 2921

COURT FILE NO.: 100/14

DATE: 20150511

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: BIG INC. cob LE PAPILLON ON THE PARK and DANIELLE BIGUE, Applicants

AND:

MOHAMMED ASHFAQ ISLAM, ARIF HOSSAIN, ABDUL MALIK and HUMAN RIGHTS TRIBUNAL OF ONTARIO, Respondents

BEFORE: Harvison Young, Newbould and Gray JJ.

COUNSEL: Muneeza Sheikh and Sunira Chaudhri, Counsel for the Applicants

Toby Young and Kate Sellar, Counsel for the Respondents Islam, Hossain and Malik

Margaret Leighton, Counsel for the Human Rights Tribunal of Ontario

HEARD: April 28, 2015, in Toronto

ENDORSEMENT

GRAY J.

[1] This is an application for judicial review of a decision of the Human Rights Tribunal of Ontario dated December 30, 2013, in which it found that the applicants had discriminated against the respondents Malik, Hossain and Islam, and awarded remedies.

[2] The applicant, Big Inc., is the owner of a restaurant in Toronto, and the applicant Danielle Bigue is the restaurant’s manager. The restaurant was established fairly recently, but Ms. Bigue and her husband had been involved in operating another restaurant in Toronto for many years, and some of the respondents had been employed in that restaurant, also for many years.

[3] The respondents are Muslim.

[4] Applications to the Tribunal had been filed separately by Messrs. Malik, Hossain and Islam, and they were consolidated by the Tribunal and heard together.

[5] The hearing before the Tribunal took four days, and eleven witnesses were called.

[6] It is not necessary to go into detail about the allegations made by the respondents, or the evidence considered by the Tribunal. In substance, the allegations were as follows:

a) Mr. Malik was required to taste pork, contrary to his religion;

b) Messrs. Hossain and Islam were urged to taste soup and tortiere (which is made of pork) during the feast of Ramadan, contrary to their religion;

c) The applicants failed to investigate allegations of human rights violations;

d) The applicants made discriminatory comments and threatened to replace the respondents with white staff;

e) The applicants made discriminatory comments regarding the use of the Bengali language in the kitchen;

f) The applicants failed to accommodate Mr. Hossain by refusing to grant him time to take a religious holiday;

g) The respondents were subjected to reprisals for complaining about violations of their human rights;

h) The respondents were terminated from their employment contrary to the Human Rights Code.

[7] The Tribunal found in favour of the respondents on each of these issues, except issue (g), on which the Tribunal only found in favour of the respondent Malik.

[8] The arguments made by the applicants can be distilled into the following:

a. The Tribunal made unreasonable findings of fact, particularly because it applied a more exacting level of scrutiny to the witnesses called by the applicants as compared to the level of scrutiny applied to the witnesses called by the respondents;

b. The Tribunal erred in its treatment of s.45.1 of the Code;

c. The Tribunal erred in not considering unsworn willsay statements that had been filed by the applicants.

[9] The applicants also raised in their factum, but did not pursue in oral argument, assertions that the Tribunal had erred in applying the proper test for discrimination, and that the Tribunal had given inadequate reasons. Since these issues were not pursued orally, we will not specifically deal with them. In any event, I am not satisfied that the Tribunal erred in applying the appropriate legal test for discrimination, nor that its reasons were inadequate having regard to the decision of the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62. The Tribunal specifically and in considerable detail addressed all aspects of the test and onus of proof with respect to discrimination under the Code and the applicants have not demonstrated any errors in this respect.

[10] In assessing the grounds on which the applicants attack the decision of the Tribunal, it must be emphasised that the grounds for reviewing the Tribunal’s decision are narrow. All parties agree that the decision of the Tribunal is to be reviewed on a standard of reasonableness, as discussed in the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. At para. 47, the court stated:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness; certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [Emphasis added]

[11] In a case such as the one before us, the intention of the legislature that a narrow standard of review is required is highlighted by the existence of a strong privative clause.

[12] Section 45.8 of the Code provides as follows:

45.8 Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

[13] In Dunsmuir, the court commented on the effect of a privative clause on the standard of review at para. 52, as follows:

The existence of a privative or preclusive clause gives rise to a strong indication of review pursuant to the reasonableness standard. This conclusion is appropriate because a privative clause is evidence of Parliament or a legislature’s intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized.

[14] It is with these considerations in mind that I will address the grounds argued by the applicants.

[15] First, as noted, the applicants attack the findings of fact made by the Tribunal. Their primary argument in this respect is that the Tribunal accorded a different level of scrutiny to the evidence given by the applicants’ witnesses as compared to the level of scrutiny accorded to the respondents’ witnesses. In substance, the applicants complain that the Tribunal was quick to discount the evidence given by the applicants’ witnesses where their evidence before the Tribunal differed from statements made in the applicants’ pleadings or in willsay statements signed by the applicants’ witnesses. By contrast, the applicants submit, witnesses called by the respondents were dealt with much more charitably by the Tribunal, and the Tribunal seemed willing to overlook or explain away in more benign terms any similar conflicts on the part of the respondents’ witnesses.

[16] Similar arguments are often made in criminal cases. As noted by Doherty J.A. in R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, “This is a difficult argument to make successfully.” In the same paragraph, he stated, “To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.”

[17] To the same effect, see R. v. J.W.J., 2009 ONCA 791; R. v. J.L., 2009 ONCA 788; and R. v. C.M., 2010 ONCA 55. A rare example of a case in which the argument succeeded is R. v. T.T. (2009), 2009 ONCA 613, 265 O.A.C. 47 (C.A.).

[18] It should be noted that those cases involved appeals, unlike this case which is an application for judicial review. For the argument to succeed in a case such as this, the applicant must show that it has effectively been denied natural justice or has received an unfair hearing. In assessing the evidence of a witness, the decision maker must, of course, take into account any inconsistencies between the evidence given by the witness and something the witness may have said or done on an earlier occasion. However, not all inconsistencies are of equal importance. In some cases, they can be explained by faulty memory, mistaken assumptions, or other benign factors. Sometimes they cannot. It is for the decision maker to assess an inconsistency against the evidence as a whole and against the inherent probability or improbability of the evidence. That assessment may differ from witness to witness. For that reason, among others, it is very difficult to make out a case that a different level of scrutiny has been applied, sufficient to render a hearing unfair.

[19] In this case, I have carefully reviewed the fact-finding process of the Tribunal, and I am satisfied that while on a cursory reading the Tribunal may have appeared to apply less scrutiny to the evidence of the respondents than the evidence of the applicants, the Tribunal did not cross the line of applying a different level of scrutiny to the witnesses sufficient to result in an unfair hearing. The Tribunal was alive to the issues and the differences between the evidence given by each witness and what may have been put in issue by earlier pleadings and willsay statements signed by the witness. I am not satisfied that the Tribunal’s decision and decision-making process were unfair.

[20] One particular factual matter with which the applicants particularly took issue was with respect to certain letters purportedly delivered to the applicants by the respondents in September and November, 2010, and which were relevant to the claims of reprisal and failure to investigate. The applicants admitted receiving the November letters but denied that the September letter had been delivered to them. The Tribunal found that it had been delivered.

[21] The applicants contended before the Tribunal that Mr. Malik was not at work on the day he said he delivered the September letter. After reviewing the evidence, the Tribunal found that Mr. Malik, was, in fact, at work on the day in question. Before this Court, the applicants now contend that some of the contents of the letter are inconsistent with a finding made by the Tribunal on another issue. Mr. Malik claimed he had been required by the applicants to taste pork schnitzel, contrary to his religion. He said it occurred in August, 2010, but the Tribunal found that it occurred in October. In the September letter, Mr. Malik states “I was forced to eat pork which is not allowed in my religion.”

[22] I am not satisfied that there is any fatal inconsistency. Mr. Malik had complained in March, 2010 that he had been required to taste pork sandwiches. In any event, in terms of the issues of reprisal and failure to investigate, there was no dispute that the letters of November, 2010 were received by the applicants. I see no reviewable error.

[23] On the whole, I am satisfied that the Tribunal approached its fact-finding task reasonably, and its findings of fact were reasonable.

[24] With respect to the argument based on s.45.1 of the Code, it should be noted that the argument now made by the applicants was not made before the Tribunal.

[25] Section 45.1 of the Code provides as follows:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

[26] Clearly, that provision reposes a discretion in the Tribunal to dismiss an application under the Human Rights Code where the Tribunal is satisfied that the substance of the complaint has been dealt with in another proceeding.

[27] In this case, Mr. Malik filed a claim for employment insurance and, more significantly from the perspective of this issue, a claim for termination pay and severance pay pursuant to the Employment Standards Act. The latter claim came before an Employment Standards Officer, who ruled that Mr. Malik had voluntarily given up his employment and was not terminated. An application for review before the Ontario Labour Relations Board was abandoned.

[28] Before the Tribunal, the applicants’ then counsel expressly disclaimed reliance on s.45.1 of the Code. At para. 219 of its decision, the Tribunal stated:

Counsel for the respondents argued that the ESA decision was entitled to deference, but conceded that this tribunal was not restricted by that decision. He also agreed that, while the ESA officer found that Mr. Malik’s employment had not been terminated without cause for the purposes of the ESA, this finding was not binding on this tribunal. Counsel for the applicants argued that the ESA decision allows this tribunal to determine whether Mr. Malik’s refusal of his employer’s direction was reasonable in the circumstances.

[29] In the following paragraph, the Tribunal stated “None of the parties argued that any part of Mr. Malik’s Application be dismissed under s.45.1.” The Tribunal then went on to comment generally on jurisprudence relevant to a section 45.1 analysis, but engaged in no analysis of the applicability of that jurisprudence to the question of whether the substance of Mr. Malik’s complaint had been appropriately dealt with in another proceeding. The Tribunal referred to Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, and Claybourn v. Toronto Police Services Board, 2013 HRTO 1298.

[30] The applicants now assert that notwithstanding their previous counsel’s position before the Tribunal, this court should now determine whether the Tribunal should have dismissed Mr. Malik’s complaint pursuant to s.45.1 of the Code. The applicants submit that since the Tribunal purported to deal with the issue, notwithstanding counsel’s disclaimer, the Tribunal should have found that Mr. Malik’s complaint had been appropriately dealt with by the ESA officer, and should have dismissed his human rights complaint.

[31] Similar to the position taken by appellate courts on appeal, it is clear that on an application for judicial review the general rule is that an issue will not be considered for the first time before a reviewing court: see Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, at paras. 51-55. In this case, I do not consider it appropriate to deal with this argument as it was not raised or pursued before the Tribunal.

[32] Ordinarily, an argument under s.45.1 is raised before the commencement of a hearing on the merits. Having regard to what is actually contemplated by s.45.1, this is obviously sensible. Whenever the issue is raised, whether prior to or at the hearing, if the issue is squarely raised before it, the Tribunal will have an opportunity to give thoughtful consideration to the issue, assisted by full argument. A reviewing court will then have the benefit of the Tribunal’s considered reasoning on the point.

[33] In this case, the Tribunal’s comments on the s.45.1 issue simply represent the adjudicator’s brief thoughts on the possible application of s.45.1, and clearly do not represent her considered opinion, and was obviously not the product of any argument by counsel. Nor was there any evidentiary record before the Tribunal, such as the statutory frameworks governing the ESA, that would have been critical to the argument and analysis of s. 45.1 in light of Claybourn, Penner, and British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52.

[34] For these reasons, I do not consider it appropriate to deal with the issue under s.45.1 of the Code, as it was not raised or argued at the hearing before the Tribunal.

[35] Finally, the applicants argued that the Tribunal was obliged to consider the willsay statements of certain people who were not called as witnesses. There is no merit to that argument. The willsay statements were nothing more than an outline of what evidence would be given by a witness, if called. The witnesses were not called, and it would have been inappropriate for the Tribunal to have given the willsay statements any consideration.

[36] In the final analysis, after considering the Tribunal’s decision in light of the appropriate standard of review as mandated by Dunsmuir, I conclude that the decision is reasonable and there are no grounds to set it aside.

[37] For the foregoing reasons, this application is dismissed.

[38] The applicants will pay to the respondents their costs of this application, fixed in the amount of $7,500, all-inclusive. There will be no order as to costs either for or against the Tribunal.

GRAY J.

HARVISON YOUNG J.

NEWBOULD J.

Date: May 11, 2015