Court File and Parties

CITATION: City of Toronto v. Grange, 2016 ONSC 869

DIVISIONAL COURT FILE NO.: 135/15

DATE: 20160208

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: CITY OF TORONTO, MARK LAWSON, ANN ULUSOY, LUCY TROISI, ARTHUR BEAUREGARD, DONNA KOVACHIS, KATHY WIELE and DAN BOYLE, Applicants

AND:

FAY GRANGE, Respondent

BEFORE: J. WILSON, STEWART, THORBURN JJ.

COUNSEL: Amandi Esonwanne, for the Applicants Osborne G. Barnwell, Maxine Palomino, for the Respondent Linda H.C. Chen, for the Human Rights Tribunal of Ontario / Social Justice Tribunal of Ontario

HEARD at Toronto: February 2, 2016

ENDORSEMENT

[1] The Applicants, the City of Toronto and the named individuals, seek judicial review of two interim decisions of the Human Rights Tribunal of Ontario (“HRT”) dated May 5, 2014 and November 17, 2014 (the “May Decision” and the “November Decision”). These decisions concern the Respondent’s application alleging a series of discriminatory workplace incidents extending over a decade.

[2] The May Decision denied the Applicants’ request to dismiss the Respondent’s application for (i) being outside the limitation period set out in s. 34(1)(b) of the Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”) and (ii) having no reasonable prospect of success.

[3] The November Decision was a review of the May Decision heard pursuant to s. 45.7 of the Code. Only final decisions can be reviewed. The adjudicator concluded that she did not have jurisdiction to review the May Decision because it was interlocutory.

[4] In this judicial review application, the Applicants challenge the analysis and conclusions reached on the limitation issue in the May Decision and the interpretation of finality in the November Decision.

Jurisdiction of the Divisional Court

[5] The Divisional Court has jurisdiction to review decisions of the HRT pursuant to ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

Prematurity

[6] The Respondent, Fay Grange, and the Intervener, the HRT, challenge whether the Divisional Court should hear this application as the decisions under review are not final. They argue that these are interlocutory decisions and that there are no exceptional circumstances to justify judicial review at this stage of the proceeding.

[7] The Applicants argue that the May Decision is a final decision as it dealt definitively with the limitation defence. Alternatively, if the May Decision is interlocutory, the Applicants argued that there are exceptional circumstances to justify this Court judicially reviewing the May Decision.

[8] For the reasons outlined, we conclude that this application for judicial review is premature as these are both interlocutory decisions and there are no exceptional circumstances justifying judicial review at this early juncture.

[9] If the application for judicial review is not premature, the Applicants challenge the May Decision as unreasonable due to its interpretation of “a series of incidents” in s. 34(1)(b) of the Code.

[10] In light of our conclusions on the question of prematurity, it is not appropriate for this Court to consider the other arguments raised by the Applicants.

Standard of Review

[11] The parties agree that the applicable standard of review for decisions of the HRT is reasonableness.

[12] In Shaw v. Phipps, 2012 ONCA 155, [2012] O.J. No. 2601, the Court of Appeal confirmed, at para. 10:

All counsel agree that the Divisional Court properly identified “reasonableness” as the appropriately deferential standard of review on an application for judicial review of the Adjudicator’s conclusion of discrimination…. 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 that it did (at para. 85).

The Dispute

[13] The Applicants are the City of Toronto (“the City”) and individuals who are current or former employees of the City.

[14] The Respondent, Fay Grange, is an employee of the City’s Parks and Recreation department. She has been on medical leave since January 2010.

[15] She is a woman of African descent. She alleges that her career and health were detrimentally affected by workplace incidents spanning from 2001 to 2010 that arose from the Applicants’ systemic discrimination against her. She argues that her experiences form a “series of incidents” that, taken together, reflect a culture of systemic discrimination.

The Issues on Prematurity

1. Are the decisions interlocutory or final?
2. If interlocutory, are there exceptional circumstances that would warrant judicial review at this preliminary stage in the application?

The May Decision

[16] The Applicants argued that the nature of the Respondent’s allegations and the temporal gaps between the alleged incidents were such that the incidents pre-date the one year limitation period in s. 34(1)(b) of the Code.

[17] The last incident of discrimination is alleged to have occurred in September, 2010 while the Respondent was on medical leave. The Respondent alleges that the City posted a job opening with the major responsibilities for the posting being the exact duties previously performed by the Respondent. The job was awarded to a white employee at a higher job classification and wage rate while the Respondent was still on leave. She claims this is a separate incident of discrimination.

[18] The Applicants argued before us, and before the HRT, that the limitation period for bringing any claim has long expired.

[19] They argue that the September 2010 job posting does not constitute an independent incident of discrimination capable of anchoring prior allegations of discrimination for the purpose of the one year limitation period stipulated in s. 34(1)(b) of the Code.

[20] The HRT adjudicator did not accept the Applicants’ arguments and made specific factual findings that the last alleged incident was independent, was brought within the one year limitation period, and could underpin a finding of discrimination for the historic allegations. These findings of fact and conclusions are found at paras. 20 and 39 of her reasons:

[20] The last incident in the series is alleged to have occurred in September, 2010, within one year prior to the filing of her application. The applicant alleges that while she was on leave in September or October 2010, she learned that a position had been posted by the respondent for a “Supervisor of Community Projects Funding”. The applicant alleges that the position was awarded to a White employee who was given partial responsibility for the applicant’s Recreation Grant program but at a higher classification and wage rate. The applicant alleges that the major responsibilities in the September 2010 posting are the exact duties that she carried out, at a lower pay grade, prior to her medical leave in January 2010.

[39] The case before me is that the various allegations, when considered in the full context of the applicant’s experience, will reveal a pattern of discriminatory treatment which has its roots in patterns of behaviour, policies or practices that are part of the structures of the organization. In a case like this, where the last incident in a series of incidents appears to be timely and can reasonably be viewed as an allegation of discrimination (as opposed to an allegation of something other than an act of discrimination), challenges to the nature and timing of the incidents alleged to fall within the series are best resolved by the hearing adjudicator who has the benefit of considering all of the available evidence before finding in favour of either party.

[21] The adjudicator interpreted the meaning of “a series of incidents of discrimination” in s. 34(1)(b) of the Code differently than in some prior HRT decisions and declined to embark on a detailed analysis of facts of each alleged incident at this preliminary stage in the proceeding. Once the final incident is found to be timely, all other incidents are presumed to be timely. The Applicants argue that the interpretation may be contrary to the principles and approach outlined in Garrie v. Janus Joan Inc., 2012 HRTO 1955, [2012] O.H.R.T.D. No. 1900.

[22] She determined that systemic racial discrimination necessarily extends over time and is nuanced in its proof. The adjudicator concluded, (at para. 25) that the inquiry into a detailed analysis of the facts going to the merits was appropriately made in the context of the full hearing:

I cannot stress enough that this Interim Decision arises at the earliest stage in the hearing process, where my role is not to make assessments of credibility or findings of fact. In this case, the applicant's allegations are alleged to find their connection in systemic discrimination. The Ontario Human Rights Commission defines systemic discrimination as "patterns of behaviour, policies or practices that are part of the structures of the organization and perpetuate disadvantage" on the basis of one or more prohibited grounds under the Code.

[23] She concluded as well that there was no compelling reason to inquire into the timeliness of the various historic allegations prior to hearing evidence on the merits of the Respondent’s claim.

[24] The adjudicator also concluded that if the allegations were proved as alleged, the Respondent’s claim for systemic discrimination had a reasonable chance of success. She therefore dismissed the Applicants’ motion to dismiss the claim on the merits.

The November Decision

[25] The Applicants sought a review of the May Decision pursuant to s. 45.7 of the Code.

Rule 26.1 of the Rules confirms that a party may request reconsideration of a final decision of the HRT.

[26] The adjudicator applied the test for whether a decision is final or interlocutory established by the Divisional Court in Ontario Human Rights Commission v. Ontario Teachers’ Federation, 1994 10578 (ON SC), [1994] O.J. No. 1585:

(i) Does the decision finally dispose of a claim or issue?

(ii) Does the decision determine the real matter in dispute?

(iii) Does the decision dispose of a substantial issue between the parties?

[27] The adjudicator concluded that the May Decision was interlocutory since the three part test was not met. She therefore concluded that she did not have jurisdiction to review the May Decision.

The Applicants’ Arguments as to Prematurity

[28] The Applicants submit that this application is not premature for the following reasons:

(i) Courts may intervene where a decision that is interlocutory in most aspects finally determines a particular issue: Ackerman v. Ontario (Provincial Police), 2010 ONSC 910, [2010] O.J. No. 738 (Div. Ct.), at para. 11. The Applicants argue that despite the interlocutory nature of the May Decision, it finally determined the issue of timeliness and hence should be treated as a final decision.

(ii) Courts will intervene in ongoing proceedings that would otherwise result in the wasting of judicial resources and where there is jurisdictional defectiveness, such as a tribunal continuing to adjudicate a matter in the face of a statutory limitation period: Roosma v. Ford Motor Co. of Canada Ltd. (1998), 1988 5633 (ON SCDC), 66 O.R. (2d) 18 (Div. Ct.), at pp. 25-26.

(iii) Courts will fragment an administrative proceeding where exceptional circumstances warrant it: Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.), at pp. 798-799. The Applicants list the “numerous exceptional circumstances” that they argue warrant intervention in this case.

The Law on Prematurity

[29] The Supreme Court of Canada’s decision in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2010 SCC 10, [2012] 1 S.C.R. 364 is clear that a review of interlocutory decisions before the application has been completed is to be generally discouraged. Halifax represents a change in the judicial tolerance of prior practice.

[30] A clear statement of the courts’ reluctance to intervene in the course of administrative proceedings is found in Ontario College of Art, at p. 800:

For some time now, the Divisional Court has ... taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion.

[31] The Court in Ontario College of Art observed that it is preferable to consider the issues raised in the application for judicial review in light of a full record and with the benefit of the reasons and decision of the tribunal.

[32] Often, depending upon the ultimate outcome of the tribunal decision, the issue raised in the judicial review application may become moot.

[33] This court has limited discretion to hear interlocutory applications for judicial review and will do so only in exceptional circumstances. The only circumstances that would permit early judicial review are ones in which there is a clear lack of jurisdiction or where proceeding would result in an unfair hearing or a breach of natural justice: Ackerman, at para. 19.

Conclusions on Prematurity

[34] We find that the May Decision is an interlocutory decision. This is confirmed by the nature of the decision itself as well as a review of ss. 13(5) confirming a preliminary determination of a question of jurisdiction is not final, and 19 of the Code, which confirms that an order made under s. 19 is a “Request for an Order During Proceedings”.

[35] It must be remembered that the adjudicator made no findings of fact and no decision on the merits. The May Decision does not finally decide any matter between the parties, including the limitation period.

[36] It was conceded by both the Respondent’s counsel and counsel for the HRT that if the Respondent was unable to prove the facts underlying the allegations of discrimination in the last incident, the issue of the limitation period may be raised at the hearing.

[37] We conclude that the interlocutory May Decision with respect to the limitation period is reasonable.

[38] We also find that the November Decision concluding that the adjudicator did not have jurisdiction to review the May Decision as it was interlocutory is also reasonable.

Exceptional Circumstances

[39] The Respondents made arguments before us, that even if the decision is interlocutory, there are special circumstances warranting our intervention.

[40] We disagree.

[41] The present application, which raises an issue of statutory interpretation by a tribunal of its home statute, is not the kind of exceptional circumstance that justifies judicial review of an interlocutory decision before completion of the HRT proceedings. The fact that the decision considers limitation period issues is not a special circumstance.

[42] We are also of the view that the Applicants’ judicial review application serves to fragment and prolong the procedures contemplated in the Code and undermines the goal of speedy determination of human rights issues on the merits.

[43] As this is an application for judicial review that is premature, we decline to consider the reasonableness of the adjudicator’s interpretation and analysis of s. 34(1)(b) or s. 45.7(1) of the Code as compared with prior HRT decisions.

[44] For these reasons the Applicants’ request for judicial review is dismissed.

Costs

[45] At the conclusion of the argument on prematurity, we advised counsel of our decision and that reasons would follow. The parties agreed that the Applicants shall pay to the Respondent costs fixed in the amount of $7500.00 inclusive of HST and disbursements. The Intervener does not seek costs, and costs will not be ordered against the Intervener.

J. Wilson J.

Stewart J.

Thorburn J.

Date: Feb 8, 2016