CITATION: Davis v. Windsor (City), 2017 ONSC 176
DIVISIONAL COURT FILE NO.: 180/16 DATE: 20170109
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
NORDHEIMER, STEWART and LABROSSE JJ.
BETWEEN:
LOUIS DAVIS Applicant
– and –
THE CORPORATION OF THE CITY OF WINDSOR, and HUMAN RIGHTS TRIBUNAL OF ONTARIO, and CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 82 Respondents
Selwyn A. Pieters, for the Applicant Patrick T. Brode, for The Corporation of the City of Windsor Jason Tam, for Human Rights Tribunal of Ontario Matthew R. Todd for CUPE, Local 82
HEARD at Toronto: January 9, 2017
NORDHEIMER J. (orally)
[1] Mr. Davis brings this judicial review application from two decisions of the Ontario Human Rights Tribunal that dismissed his complaint about alleged discrimination. In essence, three issues are raised.
[2] First, the applicant complains that the Tribunal unfairly refused to conduct a hearing regarding three of his allegations. The Tribunal reached that conclusion because those three allegations involved another individual who had also complained to the Tribunal about the same matters. The Tribunal had held a hearing into those matters at which the applicant was a witness. The Tribunal found that the earlier hearing appropriately dealt with the substance of those allegations and consequently concluded that it would be inappropriate to re-litigate the same allegations.
[3] Within reasonable parameters, the Tribunal is entitled to determine the procedure that it will follow in deciding the matters that are before it: Human Rights Code, R.S.O. 1990, c. H.19, s. 41. I cannot find any fundamental flaw or fundamental unfairness in the Tribunal’s conclusion that it would be inappropriate to revisit matters that had already been the subject of a hearing, just because the applicant separately complained about those allegations. The issue before the Tribunal was a conclusion regarding the facts of those allegations and that is not affected by who brings the allegation forward. There is a general presumption that matters that have been adjudicated will not be re-litigated. It is the presumption that underlies the general principle of estoppel. It also underlies the authority given to the Tribunal under s. 45.1 of the Human Rights Code. The Tribunal’s decision in that regard cannot be found to be unreasonable.
[4] Second, the applicant complains that the Tribunal conducted its hearing by way of teleconference as opposed to in-person. There are two problems with this complaint. One is that the applicant’s representative agreed to the matter proceeding by way of teleconference when the suggestion was made by the Tribunal. The applicant does not get to resile from that agreement just because he is now unhappy with the result. The other is that there does not appear to have been any significant credibility issues involved in the matter that the Tribunal was hearing. Rather, the offensive statement was accepted as having been made. The issue was whether it had been adequately resolved at the time, such that the Tribunal should not intervene. In those circumstances, there is no compelling reason why an in-person hearing was necessary to fairly determine the issue. I am unable to find any unfairness that was visited on the applicant from proceeding in this fashion, especially given that the Tribunal accepted his version of what had occurred.
[5] The applicant submits that the Tribunal should never hear a matter by teleconference. I do not accept that submission. The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 expressly authorizes Tribunals to conduct hearings electronically, as do the rules of this Tribunal. It can be a useful tool for Tribunals to have to hold hearings fairly and expeditiously, especially given the size of this Province. There is no reason, or jurisdiction in this court, to remove such a tool that the Legislature has expressly authorized.
[6] Third, is a complaint that the Tribunal’s decision was unreasonable. Coupled with that complaint is a complaint about late disclosure of material. The latter issue was addressed by the Tribunal at the time and no further issue was raised by the applicant respecting it. Again, he does not now get to complain about something regarding which he did not raise an issue at the time. As for the complaint that the decision itself is unreasonable, there is no merit to that assertion. The Tribunal considered the evidence and reached a decision that is defensible on the facts that were before it. There is, consequently, no basis for this court to interfere with that decision.
[7] The application for judicial review is dismissed.
costs
[8] I have endorsed the Application Record as follows: “This Application is dismissed for oral reasons given today. The applicant shall pay the City of Windsor costs fixed in the agreed amount of $5,000 all inclusive. Neither the Tribunal nor CUPE sought costs.”
___________________________ NORDHEIMER J.
I agree
STEWART J.
I agree
LABROSSE J.
Date of Reasons for Judgment: January 9, 2016
Date of Release: January 10, 2017
CITATION: Davis v. Windsor (City), 2017 ONSC 176
DIVISIONAL COURT FILE NO.: 180/16 DATE: 20170109
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
NORDHEIMER, STEWART and LABROSSE JJ.
BETWEEN:
LOUIS DAVIS Applicant
– and –
THE CORPORATION OF THE CITY OF WINDSOR, and HUMAN RIGHTS TRIBUNAL OF ONTARIO, and CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 82 Respondents
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: January 9, 2017
Date of Release: January 10, 2017