CITATION: 2017 ONSC 5712

COURT FILE NO.: DC-16-1011-JR

DATE: 20170926

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Lan v. Huawei Technologies Canada Co. Ltd and The Human Rights Tribunal Of Ontario

BEFORE: Michael G. Quigley J., W. Matheson J., M. Faieta J.

COUNSEL: Wenfang Lan, Applicant, Self-represented Madeleine Loewenberg, for the Respondent, Huawei Technologies Canada Co. Ltd. Brian A. Blumenthal, for the Human Rights Tribunal of Ontario

HEARD: At Oshawa, Ontario: September 25, 2017

E N D O R S E M E N T

Michael G. Quigley J.:

[1] The applicant, Wenfang Lan, applies for judicial review of the decision of the Human Rights Tribunal of Ontario (“the Tribunal” or “HRTO”), which dismissed his complaint under s. 34 of the Ontario Human Rights Code, R.S.O, c. H.19 (“the Code”).

[2] The respondent, Huawei Technologies Canada Co. Ltd, terminated the applicant’s employment on February 21, 2013. The applicant claims that termination was the product of a series of allegedly discriminatory events related principally to his age. He was 46 at the time of his dismissal.

[3] He complained to the HRTO. His initial appeal to the HRTO was dismissed for reasons given on July 8, 2016 (“the decision”). He requested reconsideration of that decision but that request was also denied for reasons dated December 12, 2016 (“the reconsideration decision”). He now seeks judicial review of those decisions before this court.

[4] The applicant was hired by the respondent on January 4, 2010 as a Business Management Specialist in the respondent’s Quality Operations Department. He testified that at a lunch of co-workers on March 24, 2012, in response to a question about having a daughter, he was asked his age and told Vice-President Sam Li that he had been born in the 1960s. He claims that disclosure commenced a series of events that resulted in his dismissal. The applicant was hired at the age of 44 and terminated at the age of 46.

[5] The applicant filed an application under s. 34 of the Code alleging he had been discriminated against with respect to employment on the basis of age, and reprisal. He lists a number of particulars of the alleged discrimination, including Mr. Li making discriminatory remarks with respect to his age, to him and in the presence of another employee, Mr. Wang Lei, and an alleged consequential drop in his annual performance rating which caused him to be placed on a supervised Personal Improvement Plan (“PIP). He claimed the PIP set out unrealistic performance expectations, that he was denied his request for transfer to another department, and that he was subsequently terminated, all for discriminatory reasons.

[6] In his July 8, 2016 decision, HRTO Vice-Chair, Douglas Sanderson, found on a balance of probabilities that the applicant had not established that his age had been a factor in the respondent’s decision to dismiss him from his employment. The applicant then requested reconsideration, but Vice-Chair Sanderson found that none of the criteria for reconsideration were met.

[7] Before us, the applicant claimed that Vice-Chair Sanderson’s decision contains reviewable errors of fact and of law. He also claimed the decision was unreasonable, or made in bad faith or for an improper purpose.

[8] There is no dispute that we have jurisdiction under ss. 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, to judicially review HRTO decisions, and to grant orders in the nature of certiorari and mandamus in respect of the HRTO’s exercise of its powers. Neither do the parties contest that reasonableness is the standard of review applicable to all three issues.

[9] Further, on a review like this where the decision under scrutiny involves determinations of fact and the interpretation and application of human rights law, which falls within the specialized expertise of the HRTO, I note that its decision is to be accorded the highest degree of deference. Indeed, the Code contains two privative clauses in s. 45.8 and 43(8) that show the extent of the deference that the legislature intended to be accorded to decisions of the Tribunal.

[10] Whether the Tribunal’s decision and the process that led it to that result were reasonable requires that we consider whether the decisions reached are justified, transparent and intelligible, both as to process and result. It requires us to determine against those tests whether the result falls within a range of possible, acceptable outcomes that are defensible in respect of the facts that were before the Tribunal and the applicable law.

[11] Even if we disagree with the way in which the Tribunal has weighed the evidence and reached its conclusions, we are permitted to intervene in its decision and substitute our own opinions only where the evidence, viewed reasonably, is incapable of supporting the Tribunal’s findings of fact. This is based in the sound proposition, emphasized in other decisions of this court, that the trier of fact, in this case the Vice-Chair, was the person who saw and heard the witnesses testify and who is thus best equipped to sort through conflicting evidence and interpretations of the documents tendered and the conflicting inferences that the parties may advocate for based on that evidence.

[12] The applicant’s first position and one ground for review is that the Vice Chair of the HRTO committed an error of law, but I am unable to see any error of law that the applicant has identified. The applicant’s supplementary document in his Application Record, called “Submission for Judicial Review” (“supplement”), does purport to list items under the heading “Error of Law,” but they all ought to have been characterized as alleged errors of fact. I specifically note in that regard that the applicant has not disputed Vice-Chair Sanderson’s statement of the applicable provisions of the Code, or of the evidentiary burden or standard of proof that had to be met. I can find no reviewable errors of law in this case.

[13] Turning to errors of fact, the applicant alleges several were made by the Vice-Chair in reaching his decision. He alleges that the Vice-Chair erred in finding that:

(i) Mr. Li was aware of the decision to terminate the applicant’s employment, but was not involved in making that decision (paras. 27 and 37 of the decision);

(ii) The applicant’s drop in performance rating was caused by, among other things, a change in the company’s reporting procedure and that caused Huawei’s Canadian businesses to experience a ratings decline across the board (para. 22 of the decision); and

(iii) The applicant needed significant coaching and supervision to perform adequately (paras. 23-24 of the decision.)

[14] The most important of these alleged factual errors is the first. The applicant refers to his cross-examinations of the respondent’s witnesses at the HRTO hearing, and emails from Mr. Wu found at p. 295 of the HRTO Record of Proceedings as supporting his contention that the Vice-Chair made an error of fact in his finding that Mr. Li was aware of the decision to terminate the applicant’s employment, but was not involved in making that decision.

[15] I reject this argument. First, the “cross-examinations” as found in the supposed “transcripts of evidence” in the applicant’s application record, and upon which he relies for his positions on the evidence are not reliable. They are not transcripts. They are called transcripts, but the applicant acknowledged before us that they were nothing more than his own notes from the cross-examinations, noted as he could, while he was conducting his cross-examinations or later. And they appear to often include only the Applicant’s questions without the witness’s answers. The applicant appears to have misconstrued conversations, yet relied upon his own misunderstandings or the obvious uncertainties and unreliability of his notes as a party to the dispute to bolster his own case and his claims that the Tribunal made factual errors in its findings.

[16] Moreover, among other things, the applicant’s “conclusion from the facts” depends on there having actually been a private meeting between Mr. Wu and Mr. Li between January 22, 2013, 5:01 pm, and January 23, 2013, 2:50 pm. During that period, the applicant claimed that Mr. Li pressured Mr. Wu to fire the applicant and “motivated him to change his mind” about the applicant’s prospects and to then send the email dated January 23, 2013, 2:50 pm.

[17] The problem is, regardless of whether the discussion Mr. Li and Mr. Wu are claimed to acknowledge in their evidence amounted to anything more than a hallway chat and was not the “private meeting” that the applicant contends took place, there is no evidence on the record that Mr. Li “imposed his opinion” on Mr. Wu. That is what the applicant believes. That is the inference the applicant says the Vice-Chair should have drawn from the evidence he heard, but they are simply the applicant’s preferred inferences and are not definitively founded in any of the evidence.

[18] Finally, the applicant contends that the Vice-Chair erred when he found, based on Mr. Wu’s evidence, that the applicant needed significant coaching and supervision to perform adequately. This was the conclusion that the applicant’s direct supervisor, Mr. Wu, reached according to his own un-impeached testimony, notwithstanding the applicant’s allegations of collusion and undue influence by Mr. Li. It was also a conclusion that the Tribunal accepted, but there is no evidence on record that suggests that the applicant’s conclusion ought to be preferred over the Tribunal’s.

[19] Stated simply, I can find no evidence that provides a foundation to disturb the Tribunal’s findings of fact. The applicant is dissatisfied with the Tribunal’s findings. That is why he has brought this judicial review, but the Tribunal’s findings were neither unfounded nor unreasonable on the evidence that was before the Vice-Chair. Accordingly, they are entitled to deference given the expertise of the Tribunal and the Vice-Chair. The Vice-Chair was entitled to reach the factual conclusions he did on the evidential record that was before him.

[20] Finally, the applicant argues that a number of elements of the HRTO’s decision were unreasonable, or made in bad faith, or for an improper purpose. There are five instances of alleged unreasonableness of the Tribunal’s decision raised in para. 9 of the applicant’s factum, with the specifics of the applicant’s argument located in the “supplement” at tab 5 of the applicant’s Application Record, at pp. 27-30, and numbered S/N 5 through to S/N 10. The respondent-Huawei argues that the applicant has not identified any aspects of the decision that might be regarded as unreasonable, made in bad faith, or for an improper purpose.

[21] While characterized as alleged unreasonable decisions, like the items listed in his allegations of legal error, items S/N 5 to S/N 10, properly construed, dispute findings of fact and ought to have been contested as errors of fact. In my view, however, none of these items demonstrate that the Tribunal’s decision fell outside the range of reasonable outcomes. For the sake of thoroughness, however, I will briefly address each item in turn:

(i) S/N 5: The Vice-Chair found that the headcount in the QOD was reduced and the applicant’s position combined with another position that was eliminated. Given the evidence on record, this finding was reasonable. The emails cited by the applicant support rather than undermine the Vice-Chair’s finding. The two additional pieces of evidence the applicant cites—namely the “real situation” in his department and the state of recruitment “right now”—are not based on any evidence on record, but rather are anecdotal and based only on his own opinion;

(ii) S/N 6: The Vice-Chair found that the applicant had been dismissed because a reduction in headcount was necessary for business reasons, and the applicant was only an average employee and therefore a natural candidate for termination. The applicant rebuts that on the basis of his claim that the business was performing well, so there was no genuine reason for management to reduce headcount. However, there is no evidence on record to suggest that management did not have a valid business case for reducing headcount in the applicant’s department.

The applicant says that his unit had ranked in the top four in July, 2013 and the top three in August 2013, but dismisses management’s “rolling forecast” globally that placed his unit at a more dismal level looking forward. He asserts that “was not bad at all for a new player”, but it is not his place to conclude that management was not entitled to view the performance of his department less favourably, and to have determined that reductions in headcounts were required to improve that unit’s performance viewed from a global perspective, based on global numbers and forecasting. In my view, it was open to the Tribunal to conclude that the alternate narrative put forth by the Applicant had a weaker basis in evidence than Respondent’s position, as accepted in the Vice-Chair’s findings;

(iii) S/N 7 and 8: The Vice-Chair found that the respondent employed many employees who were older than the applicant, and that many of them were continuing to do well in the company. However, the Applicant tried to himself distinguish between Chinese and non-Chinese employees, and asserted he was the oldest of all the Chinese employees. This does not respond to the Vice-Chair’s finding or demonstrate it was unreasonable. The applicant states that this decision “took lies from respondent, ignored the evidences [sic] I submitted indicating Mr. Li spoke out 2 discriminatory remarks about my age”, and that the decision “ignored evidence from my side.” There is no evidence on record to support the applicant’s assertion here, either that the Vice-Chair accepted “lies” from the respondent, much less that they were lies, or “ignored” the applicant’s evidence. The Vice-Chair did take all of the evidence before him, weigh it, and reached the conclusions that he did, but the assertion that he was wrong in doing so, or necessarily ought to have preferred the applicant’s view of the evidence or the inferences he preferred is without foundation and evidences a misunderstanding on the applicant’s part of the nature and role of this judicial review;

(iv) S/N 9: The answer to this contention is similar to the last two. Vice-Chair Sanderson held that the applicant provided no evidence indicating that Mr. Wu’s view of his performance was based on anything other than his perceptions of the applicant’s strengths and weaknesses. The applicant rebuts that finding by citing evidence to demonstrate that he was in fact a high performer, but this alleged evidence is irrelevant to the Vice-Chair’s actual finding: None of the evidence the applicant cited suggests that Mr. Wu’s evidence was based on anything other than his own subjective perception of the applicant’s ability.

Moreover, the performance evaluations of the Applicant from 2011 to 2013, as reflected at pages 277, 281 and 299 of the record, reflect a common theme. Those evaluations recorded consistent and continuing concerns respecting the applicant’s performance, which ultimately resulted in him being awarded a C+ C? grade, which is considered to be a failing grade. That downgrading of his status took place when the restructuring was in process and the Canadian Unit moved from an indirect HQ report through and under the United States umbrella, to a direct HQ reporting relationship. Importantly, this shows significant concerns about the applicant’s performance well before the alleged age discrimination comments arose and it undermines the applicant’s claim that his termination was caused by age discrimination;

and finally,

(v) S/N 10: The applicant alleges that the Vice-Chair’s decision concealed facts and mischaracterized evidence when, at para 24, the decision states that, “headcount in the QOD would be reduced by two.” This finding is based on Jay Dressler’s email dated January 7, 2013, 10:03 am. The applicant is correct that the email goes on to say that human resources will hire one replacement. The applicant takes this latter fact – the intention to hire one person after terminating two people – as “clearly indicat[ing] that the intention of dismissing [him] was not to reduce headcount.”

That does not follow. The applicant goes on to say that the headcount in the department did not change, but this assertion is unsupported, and in fact refuted by the evidence on record. In argument the applicant made reference to contract replacements which meant the headcount did not actually go down, and he sought to emphasize the respondent-Huawei’s allegedly poor retention record, with alleged multiple turnovers of replacements in only three years, but none of this is evidenced in the record.

[22] In summary, having reviewed the applicant’s factum and the supplement, and having heard his submissions, I am not persuaded that the Tribunal made errors of law, or errors of fact, nor am I persuaded that any of the decisions and factual findings of the Vice-Chair were unreasonable on the whole of the evidence that was before him. In light of my conclusions on all of the applicant’s allegations and submissions, it follows that the application for judicial review against the Tribunal’s decision denying the applicant’s claim under the Ontario Human Rights Code is dismissed.

[23] The Tribunal is not seeking costs and none are awarded, but the respondent-Huawei is seeking partial indemnity costs of $25,289.40 plus HST, together with disbursements of $1,095.59, based on the respondent’s written costs submissions provided to us and also to the applicant at the conclusion of the hearing.

[24] We have no doubt that the respondent did incur the costs claimed. However, taking into account the Applicant’s submissions in the exercise of our discretion, including his limited means and continuing difficult financial situation, while the respondent-Huawei is entitled to costs, we fix them at $2,500 plus HST together with disbursements of $1,095.59, payable within 60 days of the issuance and entering of a costs order by the respondents. Orders to go accordingly.

Michael G. Quigley J.

I agree ___________________________ W. Matheson J.

I agree ___________________________ M. Faieta J.

Released: September 26, 2017