CITATION: London Sales Arena Corp. v. Judith Salsman, 2015 ONSC 7243
DIVISIONAL COURT FILE NO.: 14-2094
DATE: 20151117
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, J. HENDERSON AND TAUSENDFREUND JJ.
BETWEEN:
London Sales Arena Corp. and Edward Kikkert
Applicants
-and-
Judith Salsman, Falicity Chartrand, Daniella Freeman, and Karen Clarke McL!wain
Respondents
-and-
Social Justice Tribunals of Ontario Legal Services
J. HENDERSON J. (ORALLY)
) A. Polizogopoulos, for the applicants
) A. Camman, for the respondents
) HEARD at London: November 17,
) 2015
[1] This is an application for a judicial review of the decision of the adjudicator, Dawn J. Kershaw of the Human Rights Tribunal of Ontario, dated May 30, 2014, and the reconsideration of the decision by the adjudicator, dated July 24, 2014.
[2] In her decision and in the reconsideration, the adjudicator found that the applicants, London Sales Arena Corp. and Edward Kikkert, had discriminated against all four of the respondents. The discrimination against the three respondents, Salsman, Chartrand, and Freeman, is with respect to facilities on the basis of sex, specifically gender identification. The discrimination against the respondent, Clarke-Mcllwain, is on the basis of sex, sexual orientation, and association with a person identified by those grounds.
[3] The applicants raised three grounds for judicial review:
- the admission of and reliance on a radio interview given by Mr.
Kikkert;
the quantum of damages awarded; and
the liability of the personal applicant, Mr. Kikkert, for the discrimination.
[4] Regarding the first ground, the radio interview, as argued by the applicants, this is a matter of procedural fairness, and therefore it is not necessary to engage in an analysis of the standard of review.
[5] The adjudicator in the reconsideration decision stated at para. 17 that she had informed the parties at the outset of the hearing that she had a copy of the radio interview. In particular at para. 17, the adjudicator wrote the following:
Specifically with respect to the issues raised by the respondents, the radio interview was in evidence as set out in paragraph 31 of the Decision. I specifically advised the parties at the outset of the hearing that I had listened to the interview portion of the recording that was sent in but did not listen once the call in portion of the show began as I did not feel it was appropriate to listen to others' opinions. There were no objections other than that the applicants' representative asked that I listen to the interview with Ms. Salsman that appeared after some of the call in portion, and the respondents' then counsel agreed with the request.
[6] Given the adjudicator's statements at paragraph 17, we find that it is unnecessary to consider the affidavit of Mr. Kikkert filed in this application. Despite the fact that there is no transcript, the record deals with this issue as it is addressed by the adjudicator in her reasons.
[7] With respect to procedural fairness, we find that the Rule in Browne v. Dunn does not apply in the present circumstances. That is, Mr. Kikkert and his counsel were informed at the stati of the hearing that the adjudicator had a copy of the radio interview, and thus Mr. Kikkert and his counsel were aware that it would or could be used by the adjudicator in coming to her decision.
[8] With this knowledge, Mr. Kikkert and his counsel did not object to the admission of the radio interview into evidence. In fact, they agreed that the adjudicator should listen to more of the radio interview.
[9] Furthermore, Mr. Kikkert testified at the hearing knowing that the adjudicator had admitted the radio interview into evidence, yet Mr. Kikkert chose not to comment on or explain the statements that he made in the interview.
[10] We find that there is no procedural unfairness in light of Mr. Kikketi's oppmiunity to object to the admissibility of the evidence, and his opportunity to explain that evidence. Mr. Kikkert chose not to avail himself of those opportunities, and therefore cannot now come to this court by way of judicial review to complain about a lack of procedural fairness.
[11] Regarding the second ground, the quantum of damages, the jurisprudence is clear that the quantum of damages awarded by the Human Rights Tribunal lies at the heart of the Tribunal's expertise, and therefore such awards are entitled to an extremely high degree of deference. We find nothing in the adjudicator's decisions as to damages that would cause us to conclude that the amounts awarded are unreasonable.
[12] Regarding the third ground, the personal liability of Mr. Kikkert, the standard of review on this issue is reasonableness. In consideration of the principle that the person who is the cause of the discrimination should be the person who is held accountable for the discrimination, we find nothing in the adjudicator's reasons that are unreasonable.
[13] Accordingly, this application for a judicial review is dismissed. I have endorsed the back of the application record. For reasons given orally by Henderson J., this application is dismissed. The respondents are entitled to their costs of this application, which we fix in the amount of $10,000, all inclusive.
I
Date of Reasons for Judgment: November 17,2015 Date of Release: _
CITATION: London Sales Arena Corp. v. Judith Salsman, 2015 ONSC 7243
DIVISIONAL COURT FILE NO.: 14-2094
DATE: 20151117
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, J. HENDERSON AND TAUSENDFREUND JJ.
BETWEEN:
London Sales Arena Corp. and Edward Kikkert
Applicants
-And-
Judith Salsman, Falicity Chartrand, Daniella Freeman, and Karen Clarke-McLlwain
Respondents
ORAL REASONS FOR JUDGMENT
Date of Reasons for Judgment: November 17,2015 Date of Release: D.e ( e lY\ b·cr 3' ' abIS: