CITATION: 2017 ONSC 782
DIVISIONAL COURT FILE NO.: 377/14
DATE: 2017-02-07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, RADY and THORBURN JJ.
B E T W E E N :
WILBERT PEART Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES AND THE HUMAN RIGHTS TRIBUNAL OF ONTARIO Respondents
– and –
AFRICAN CANADIAN LEGAL CLINIC, INDUSTRIAL ACCIDENT VICTIMS GROUP OF ONTARIO AND SOUTH ASIAN LEGAL CLINIC OF ONTARIO Interveners
Counsel:
Raj Anand and S. Priya Morley, for the Applicant
Daniel Huffaker, for the Respondent, Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services
Margaret Leighton and Jason Tam, for the Respondent the Human Rights Tribunal of Ontario
Runako Gregg, for the Intervener African Canadian Legal Clinic
Maryth Yachnin, for the Intervener Industrial Accident Victims Group of Ontario
Karin Baqi, for the Intervener South Asian Legal Clinic of Ontario
HEARD at Toronto: November 7, 2016
DAMBROT AND THORBURN JJ.:
[1] This is an application for judicial review of the decision of Vice-Chair Hart of the Human Rights Tribunal of Ontario (the “Tribunal”) reported at 2014 HRTO 611, [2014] O.H.R.T.D. No. 625, dismissing the applicant’s application alleging discrimination with respect to services, filed pursuant to s. 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). The applicant alleged that s. 10(5) of the Coroners Act, R.S.O. 1990, c. C.37 (the “Act”) discriminates against migrant farm workers employed under the Seasonal Agricultural Workers Program (the “SAWP”) on the basis that it denies them the benefit of a mandatory inquest into workplace deaths that is currently extended to workers in the mining and construction industries.
Nature of Proceeding:
[2] The applicant’s underlying complaint was filed with the Ontario Human Rights Commission (the “OHRC”) on August 9, 2005, after the Office of the Chief Coroner declined a request to conduct a discretionary inquest into the workplace death of Ned Peart, a SAWP worker.
[3] An inquest is not conducted into every death in Ontario. Some provisions of the Act make it mandatory for a coroner to hold an inquest. Most of these concern deaths in custodial settings. Of importance here, however, s. 10(5) of the Act provides:
Where a worker dies as a result of an accident occurring in the course of the worker’s employment at or in a construction project, mining plant or mine, including a pit or quarry, the person in charge of such project, mining plant or mine shall immediately give notice of the death to a coroner and the coroner shall hold an inquest upon the body.
[4] A coroner also has a discretionary power to hold an inquest. Where a coroner is informed that a body is in his jurisdiction and there is reason to believe that the person died under circumstances that may require an investigation, the corner is required by s. 15(1) of the Act to examine the body, undertake an investigation, and determine whether or not an inquest is necessary. When making that determination under s. 15(1), s. 20 of the Act requires the coroner to have regard to whether the holding of an inquest would serve the public interest, taking into consideration: (a) whether the answers to the “five questions” described in s. 31(1) are known (who the deceased was, and how, when, where, and by what means the deceased died); (b) the desirability of the public being fully informed of the circumstances of the death through an inquest; and (c) the likelihood that a jury on an inquest might make useful recommendations directed to the avoidance of death in similar circumstances.
[5] The Tribunal rejected the applicant’s claim that s. 10(5) of the Act discriminates against migrant farm workers in Ontario who are employed under the SAWP by denying them the benefit of mandatory inquests into preventable workplace fatalities.
[6] In his application for judicial review, the applicant requests the following relief:
a) An order quashing the final decision of the Tribunal;
b) A declaration that the mandatory inquest provisions under s. 10(5) of the Act discriminate against migrant farm workers in Ontario who are employed under the SAWP on the basis of race, ancestry, place of origin, colour, ethnic origin, and citizenship, and are therefore inconsistent with s. 1 of the Code;
c) An order directing the Ministry of Community Safety and Correctional Services (“MCSCS”) to administer s. 10(5) of the Act in accordance with the Code and hold an inquest into the workplace death of Ned Peart; or, in the alternative
d) An order remitting the applicant’s complaint to a differently constituted panel of the Tribunal to be dealt with in accordance with this Court’s reasons and decision.
[7] The applicant’s request is supported by the interveners the African Canadian Legal Clinic, the Industrial Accident Victims Group of Ontario and the South Asian Legal Clinic of Ontario.
Background Facts:
The Circumstances of Ned Peart’s Death
[8] The applicant is the brother of a Jamaican migrant farm worker, Ned Livingstone Peart (“Mr. Peart”). Mr. Peart was killed in a workplace accident in August 2002. He was working on a tobacco farm in Ontario when he was crushed by a 1,000-pound tobacco bin that toppled onto him. He was 39 years old, and left behind in Jamaica six children and an aged mother for whom he was caring at the time of his death.
[9] The police investigated the incident. Their report indicates that one of Mr. Peart’s co-workers was operating a bin lift to load a tobacco bin into a drying kiln. The bin was filled and upright. Mr. Peart and his co-worker attempted to roll the bin to the rear of the kiln. The bin tipped over backwards onto Mr. Peart. He was pinned between the bin and the bin lift. Ambulance units attended the scene and took him to a hospital where he died from his injuries.
[10] The police notes taken on the day of the accident record that the farm equipment was in good working order. Notes tendered by MCSCS record that the farm met standards and had trained Mr. Peart, but that he had not followed the training he received.
Request for a Coroner’s Inquest
[11] On September 30, 2002, the United Food and Commercial Workers Canada (“UFCWC”) wrote to the Office of the Chief Coroner to draw Mr. Peart’s death to the Chief Coroner’s attention and to request that consideration be given to the plight of migrant farm workers in determining whether to hold an inquest. The request was supported by the Canadian Labour Congress.
[12] The Coroner’s Office investigated the matter, held a multi-disciplinary case conference, provided an overview of its preliminary findings to counsel, and invited and received submissions from counsel for the estate of the deceased about whether an inquest should be held.
The Coroner’s Decision
[13] On December 30, 2003, the Regional Supervising Coroner for the Niagara Region advised counsel in writing that an inquest would not be held. He concluded that the deceased had been made aware of the procedures for performing his task but had chosen to perform it in a less safe way. He further concluded that an inquest jury would not make recommendations that would be likely to enhance the avoidance of death in similar circumstances.
[14] On December 21, 2004, Justicia for Migrant Workers wrote to the Chief Coroner and urged him to reverse the Regional Supervising Coroner’s decision. By letters dated February 11 and 28, 2005, the Chief Coroner, after reviewing the matter, confirmed that in his opinion the requirements for an inquest were not met. He accepted the conclusion that the workers at the farm had been trained on safety procedures and that these procedures were not followed. He acknowledged that migrant farm worker safety is an important issue. However, he accepted the validity of the reasons given by the Regional Supervising Coroner for denying an inquest and determined that it was not in the public interest to hold an inquest into Mr. Peart’s death.
Complaint to the Tribunal
[15] On June 29, 2009, the applicant filed an application under s. 53(5) of the Code alleging discrimination with respect to services. The application was based on the applicant’s 2005 complaint filed with the OHRC alleging that s. 10(5) of the Act discriminates against migrant farm workers with respect to services on the basis of their race, ancestry, place of origin, colour, ethnic origin and citizenship. The applicant claimed that it does so by denying migrant farm workers the benefit of mandatory inquests into workplace deaths while extending this benefit to workers in the mining and construction industries.
The Tribunal Hearing
[16] The Tribunal heard testimony from a number of witnesses, eight of whom were experts. It also received many documents including academic papers, expert reports and statistical data on working conditions, injuries and workplace fatalities of migrant farm workers and workers in other industries, as well as on Canada’s immigration policies and the racial segmentation of the Canadian labour market.
The Decision of the Tribunal:
[17] The Tribunal began its analysis by noting that, having regard to the decision of this Court in Ontario (Attorney General) v. Ontario (Human Rights Commission) (2007), 2007 56481 (ON SCDC), 88 O.R. (3d) 455, 288 D.L.R. (4th) 138 (“Braithwaite”), there could be no dispute that the holding of a coroner’s inquest is a “service” within the meaning of s. 1 of the Code.
[18] Next, consistent with the position of the parties, and in reliance on the decision of the Court of Appeal in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, 102 O.R. (3d) 97, the Tribunal applied the discrimination analysis used in the context of challenges to legislation under s. 15(1) of the Canadian Charter of Rights and Freedoms. As a result, the Tribunal applied an analysis based on the two-step s. 15 discrimination test developed in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, namely, by asking: (1) whether the law, on its face or in its apparent effect, creates a distinction based on a prohibited ground of discrimination set out in s. 1 of the Code; and (2) whether, having regard to the relevant context, the law perpetuates disadvantage or prejudice or stereotyping. (See also: Withler v. Canada, 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 61.)
[19] However, the Tribunal recognized that there are differences between the Code and the Charter, and that the nature of the evidence required to establish discrimination and the stringency of the test for discrimination may depend on the context.
Part 1 of the Kapp test: Whether the law, on its face or in its apparent effect, creates a distinction based on an enumerated ground
[20] The Tribunal noted that SAWP workers are drawn either from Caribbean countries or from Mexico and are predominantly black or Hispanic. As a result, the Tribunal acknowledged that SAWP workers are a racialized and non-citizen group identified by personal characteristics protected under the Code. It also accepted the considerable evidence before it demonstrating that SAWP workers are a uniquely vulnerable group.[^1]
[21] The Tribunal found, however, that the exclusion of SAWP workers from the mandatory inquest requirements under s. 10(5) of the Act does not, on its face, create a distinction based upon a prohibited Code ground; rather, s. 10(5) draws a distinction on the basis of occupation, which is not a prohibited ground.
[22] The Tribunal then considered whether s. 10(5) results in “constructive” or “adverse effect” discrimination. Constructive discrimination may occur where a requirement that is neutral on its face results in the exclusion, restriction or preference of a group protected under the Code.
[23] To determine whether the requirement in s. 10(5) that a person be employed at a mining or construction site in order to receive the benefit of a mandatory inquest results in constructive discrimination, the Tribunal invoked the analysis described by the Supreme Court in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 652 (SCC), [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1. In that case, two groups that were defined by the neutral rule or requirement were compared to assess whether the rule disproportionately excluded, restricted, or gave preference to a protected group.
[24] The Tribunal reviewed Census and other data and concluded that there were significantly more vulnerable people who were non-resident and racialized workers in the agricultural industry than in the mining and construction sectors. The Tribunal therefore concluded that the applicant had satisfied the first step of the Kapp test, that is, that s. 10(5) of the Act had a disproportionate impact on SAWP workers, who are identified by prohibited grounds of discrimination, and in particular, citizenship and race.
Part 2 of the Kapp test: Whether, having regard to the relevant context, the law perpetuates disadvantage or prejudice or stereotyping
[25] The Tribunal then addressed the second part of the Kapp test: whether the distinction drawn by s. 10(5) of the Act creates disadvantage by perpetuating prejudice or stereotyping. The Tribunal acknowledged that in answering this question, it had to begin by determining the purpose of s. 10(5) of the Act – that is, the purpose of extending the benefit of a mandatory inquest to particular groups – from its context within the entire scheme of the Act.
[26] The applicant relied on the legislative history of the provision in making his submissions about its purpose, but after reviewing that history, the Tribunal found it to be of little value: it did not assist in understanding the purpose behind the requirement for mandatory inquests in mining and construction to the exclusion of other sectors, including agriculture.
[27] The Tribunal then considered the decision of this Court in Brathwaite and concluded that the Court identified three rationales for mandatory inquests: (1) the vulnerable circumstances of the deceased’s living or working conditions; (2) the lack of routine public oversight; and (3) the risks or dangers faced by the deceased. To this, the Tribunal added a fourth rationale: the extent to which the requirement to hold a mandatory inquest furthers the purpose of an inquest: answering the five questions; informing the public of the circumstances of the death; and obtaining the jury’s recommendations to avoid similar deaths.
The Tribunal then examined the exclusion of agricultural workers from s. 10(5) in light of these rationales. It put little weight on the first two considerations (the vulnerability of the group and lack of routine oversight). In the Tribunal’s view, these two considerations do not meaningfully distinguish mining and construction workers from agricultural workers.[^2]
[28] The Tribunal held that the most relevant factors in this case relate to the risk or dangers confronted by the relevant groups and the purposes served by the requirement to hold a mandatory inquest. The Tribunal began this part of the analysis with an examination of risk.
[29] In assessing the relative risk confronted by the relevant groups, the Tribunal was of the view that it should focus on the risks or dangers that could trigger the requirement to hold a mandatory inquiry under s. 10(5), and should therefore not consider deaths that did not occur as a result of an accident or acute event, deaths that did not occur within the Act’s territorial jurisdiction (Ontario), and deaths that did not occur at or in the worksite.
[30] The Tribunal examined the evidence led before it and compared the traumatic fatal injury rates among construction and mining workers with the traumatic fatal injury rate among SAWP workers. The Tribunal found that the traumatic workplace death rate among SAWP workers was markedly lower than the rate in the construction and mining industries and also lower than in the agricultural sector as a whole.
[31] In the absence of studies specific to SAWP workers in Ontario or Canada, the Tribunal placed little weight on international studies that showed that death rates among migrant farm workers were higher than those among their domestic counterparts. The Tribunal also noted that this evidence compared the risk of death between migrant and domestic farm workers rather than comparing migrant farm workers’ fatality rates to fatality rates for construction and mining workers.
[32] The Tribunal also refused to accept comparative data about non-fatal injuries to migrant farm workers in other countries and in Canada, as they were held to be irrelevant to an inquiry regarding s. 10(5) the Act, which is invoked on the basis of death, not injury.
[33] The Tribunal then turned to the second factor that it considered to be most relevant to the rationale for mandatory inquests in s. 10(5): the purposes served by the requirement to hold a mandatory inquest. The Tribunal focused specifically on the providing of recommendations to prevent future deaths in similar circumstances.
[34] The Tribunal began by noting that the number and wide variety of causes of death in the construction and mining industries was striking. As a result, the requirement for an inquest into every workplace death in the construction and mining industries would likely result in a variety of useful recommendations to prevent future deaths in similar circumstances.
[35] In the agricultural sector by contrast, there is less variety in the cause of workplace deaths. For example, tractor roll-overs resulted in 126 deaths (almost 25 percent of agricultural workplace fatalities) over 18 years. The holding of 126 mandatory inquests into tractor roll-over fatalities would be of “limited utility.”
[36] The Tribunal went on to note that in light of the nature of the work performed specifically by migrant farm workers, there is likely even less variance in the specific causes or mechanisms of death among migrant workers compared to owner/operators and full-time workers.
[37] The Tribunal concluded that a requirement for an inquest into every workplace death in the agricultural sector would be less likely to result in a variety of useful recommendations to prevent future deaths in similar circumstances than the requirement relating to workplace deaths in the construction and mining industries does. Therefore, the Tribunal concluded that the purposes underlying the requirement in s. 10(5) for mandatory inquests into accidental workplace deaths in mining and construction, but not in agriculture, are non-discriminatory.
[38] The Tribunal rejected the applicant’s submission that it is sufficient that migrant farm workers, a vulnerable group identified by personal characteristics protected under the Code, are excluded from the mandatory inquest provision in s. 10(5) of the Act and would benefit from such a requirement (as it would address their unique characteristics and vulnerabilities and prevent future deaths), and that the Tribunal should not be conducting a comparison with groups that do receive the benefit of mandatory inquests. Upon a review of the case law, the Tribunal concluded that where indirect discrimination is alleged, as in this case, in order to properly conduct the adverse impact analysis, there needs to be a correspondence between the definition of the group that receives the benefit (namely persons employed at or in a mine, pit or quarry or construction project) and the group that is excluded (persons employed at or in an agricultural work site). At this step, comparison may bolster the contextual understanding of the claimant’s place in the scheme and society at large, and help to determine whether the impugned law perpetuates disadvantage or stereotyping. This contextual inquiry will typically focus on whom the legislature intended to benefit and why. Comparison can be an evidentiary tool to identify substantive discrimination.
[39] The Tribunal also recognized that it had to consider whether the effect of the legislation undermined substantive equality by perpetuating disadvantage or prejudice or by stereotyping in a way that does not correspond to actual characteristics or circumstances. More specifically, the Tribunal considered whether s. 10(5) had the “impact or effect” of violating the norms of substantive equality by not extending the requirement for mandatory inquests into workplace deaths of migrant farm workers. When considered in the overall context of the provision, it was not clear to the Tribunal that it did.
[40] The Tribunal observed that s. 10(5) recognizes the greater degree of risk or danger of traumatic workplace fatalities in the mining and construction industries and, given the variety of mechanisms that can cause death in those industries and the variety of settings in which those fatalities can occur, the greater likelihood that a mandatory inquest requirement will result in useful recommendations to promote safety in those industries. Subsection 10(5) does not operate as an indication that the lives of migrant workers are of lesser value or that their safety is less worthy of protection.
[41] The Tribunal concluded that it could not find that the exclusion of SAWP workers from the mandatory inquest requirement under s. 10(5) of the Act results in substantive inequality for this group when the purposes and context of this provision are taken into account.
The Issues:
[42] The applicant raised the following issues in his factum:
What is the appropriate standard of review of the Tribunal’s decision?
Did the Tribunal apply the appropriate test for discrimination under s. 1 of the Code in the context of legislated services provided by the provincial government?
Was the Tribunal’s discrimination analysis incorrect, or in the alternative, unreasonable?
Did the Tribunal err in law by failing to comply with s. 45.5(2) of the Code?
Analysis:
1. The appropriate standard of review
[43] The Court of Appeal has determined that reasonableness is the appropriately deferential standard of review on an application for judicial review of a conclusion concerning discrimination made by the Tribunal (see Shaw v. Phipps, 2012 ONCA 155, 347 D.L.R. (4th) 616, at para. 10; Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 80, at para. 132; and Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495, 126 O.R. (3d) 481, at paras. 39-42). Similarly, in Hay v. Ontario (Human Rights Tribunal), 2014 ONSC 2858, 121 O.R. (3d) 103, this Court stated, at paragraph 76 (citations omitted):
There is no dispute that the standard of review on an application for judicial review of the decision of the Tribunal with respect to determinations of fact and the interpretation and application of human rights law is reasonableness. To succeed on judicial review in this case, it is necessary to show that the Tribunal could not have reasonably arrived at the decision it did. In deferentially considering the Tribunal’s decision, a reviewing Court should analyze whether the outcome was within the range of reasonable outcomes in light of the evidence …
[44] Accordingly, an exhaustive review is not required in this case to determine the proper standard of review. The analysis required is already deemed to have been performed and need not be repeated (see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 57).
[45] Despite the settled state of the law on this issue, the applicant argued that because this human rights claim is “almost exactly identical” to a claim under s. 15 of the Charter, the Tribunal’s analysis is not based on expertise that is superior to that of the reviewing court and a standard of correctness should be applied. It is clear, however, from the decision in Taylor-Baptiste, at paras. 63-70, that this consideration does not alter the degree of deference owed to the Tribunal when it is determining what constitutes discrimination within the meaning of s. 1 of the Code. (See also The Queen v. W.B., 2011 ONSC 288, 280 O.A.C. 45 (Div. Ct.).)
[46] The applicant also points to the Supreme Court’s decision in Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, as support for the proposition that it would be inconsistent for this court to apply a deferential standard on judicial review in this case when the same legal question would be decided de novo if it was brought to a court at first instance.
[47] We do not agree. This case is distinguishable. Rogers Communications dealt with a statutory scheme that gave concurrent jurisdiction to courts and the Copyright Board to decide the same questions of law under the same statute: the Board when establishing a tariff for streaming copyrighted works of music, and the courts in proceedings for copyright infringement. By way of contrast, the courts do not have concurrent original jurisdiction to apply the provisions of the Code. Similarities between the Code and the Charter do not make the Tribunal less expert in the application of the Code.
[48] For these reasons, we find that the standard of review in this case is reasonableness, except where the interpretation of the provisions of the Act is in issue.
2. Did the Tribunal apply the appropriate test for discrimination under s. 1 of the Code in the context of legislated services provided by the provincial government?
[49] Section 1 of the Code provides:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
[50] Subsection 15(1) of the Charter provides:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[51] As noted above, the Supreme Court in Kapp confirmed a two-step test for establishing discrimination in s. 15 Charter cases. The test is particularly apt in Code challenges to government benefit plans or legislative schemes.
[52] The applicant does not dispute the applicability of the Kapp test, but argues that the Tribunal did not apply it appropriately, having regard to the decision of the Court of Appeal in Tranchemontagne. While the Court in Tranchemontagne held that there is “no principled reason for adopting a different meaning for the term discrimination as it appears in s. 1 of the Code than has been ascribed to that term in the Charter context,” it nonetheless noted that there are differences between the Code and the Charter. These differences include the fact that one has constitutional status while the other does not, one has a broad equality guarantee while the other creates a limited right, and one creates certain exemptions while the other does not (Tranchemontagne, at paras. 84-88). The Court held that, “[b]ecause of these differences, the precise nature of the evidence to be led and the stringency of the test to be applied to establish discrimination may vary and ultimately will depend significantly on the context” (Tranchemontagne, at para. 89)
[53] The applicant argued that while the Tribunal made reference to Tranchemontagne, and paid lip service to the words just quoted, it went on to apply too stringent a test for establishing discrimination under the Code. In particular, the Tribunal did not sufficiently discuss the importance of the contextual evidence led by the applicant regarding pre-existing disadvantage and the impact of the law on SAWP workers.
[54] We would not give effect to this argument. The Court of Appeal’s decision in Tranchemontagne, when read in context, does not suggest a less stringent test should be applied when dealing with discrimination under the Code, but rather, that the evidence required to establish discrimination will vary from case to case and the test may be applied more or less stringently depending on the circumstances. In the end, the weight to be given to the evidence was a matter for the Tribunal, provided that it was acting reasonably. The applicant’s real complaint is that the Tribunal did not accord the significance to some of the applicant’s evidence that the applicant hoped it would. We take no issue with the Tribunal’s approach to this evidence. It undertook the sort of nuanced inquiry necessary in this case to properly assess whether the distinction relied on by the applicant actually engaged the right to equal treatment under the Code in a substantive sense (see Tranchemontagne, at para. 91).
[55] For these reasons, we find that the appropriate test was employed to determine whether there was discrimination, and we are of the view that it was appropriately applied.
3. Was the Tribunal’s discrimination analysis incorrect, or in the alternative, unreasonable?
[56] Under this heading, the applicant covered a great deal of ground. Without attempting to rehearse his submissions exhaustively, the following is, we hope, a fair summary of his argument.
[57] He began by acknowledging that s. 10(5) of the Act, on its face, is a seemingly neutral rule. He argued, however, that the effect of this rule creates a distinction based on various prohibited Code grounds that, in turn, creates disadvantage for the SAWP claimant group. This disadvantage includes the heavy burden that SAWP workers and their families must endure in persuading the Coroner’s Office to hold discretionary inquests into accidental workplace fatalities on farms. The groups protected under s. 10(5) bear no such burden. This disadvantage is exacerbated because SAWP workers have historically been disadvantaged in Canada, and they have not yet received the benefit of an inquest for any workplace fatality. The odds that a SAWP worker will receive a discretionary inquest are poor, given that at least 75 percent of inquests that take place in Ontario are mandated by the Act.
[58] The applicant further noted that there is no requirement that a claimant prove stigma, prejudice, stereotyping, the perpetuation of historical disadvantage, or a negative impact on human dignity to establish a s. 15 breach, although these factors can be indicia of substantive discrimination where they are present, as they are in the SAWP claimant group’s case.
[59] He then argued that the Tribunal misconstrued the role of comparison under the second step of the Kapp discrimination analysis. He reminded us that in Withler, the Court held that particular contextual factors relevant to the substantive equality inquiry at the second step of the Kapp analysis will vary with the nature of the case, that all factors that are relevant to the analysis should be considered, and that in determining whether there is discrimination, it is important to look not only at the impugned legislation that has created the distinction in issue, but also to the larger social, political, and legal context.
[60] In the applicant’s submission, the Tribunal did not consider all relevant contextual factors during the second step of its discrimination analysis. It placed undue emphasis on ascertaining whom the legislature intended to benefit and why, and focused on a rigid and formalistic comparison of death rates across industry sectors, without considering what the actual effect of the law is for the SAWP claimant group. The applicant argued that this mirror comparator group analysis failed to capture substantive inequality, and failed to recognize that the s. 15 Charter right to equality can be violated when a public service provider fails to address needs related to disadvantage.
[61] Finally, the applicant argued that the Tribunal’s analysis under s. 11 of the Code was also incorrect or unreasonable. The Tribunal focused on whether its own calculated workplace fatality rate amongst SAWP workers met or exceeded a certain threshold, instead of focusing on whether the group’s exclusion from s. 10(5) was reasonable and bona fide in the circumstances, pursuant to ss. 11(1) and (2) of the Code.
[62] We do not accept the applicant’s argument. In our view, it is little more than an invitation to ignore the deference owed by us to the decision of the Tribunal, conduct our own analysis, assign our own view of the weight to be given to contextual considerations, and reach a different conclusion than the one reached by the Tribunal. On the contrary, we conclude that the Tribunal exhibited a clear understanding of the test it was to apply, made no error in applying it, and came to an entirely reasonable conclusion. There is no basis for us to interfere.
[63] We agree with the applicant, as did the Tribunal, that the approach to this allegation of discrimination by the government under the Code should be contextual. The focus of the substantive equality analysis must be on the effect of the impugned provision (Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61, at para. 333). As noted in Withler, a contextual comparison between groups that receive the benefit and groups that are excluded from this benefit remains appropriate, but that analysis should include more than mere formulaic reliance on mirror comparator groups.
[64] However in our view, the Tribunal conducted a contextual inquiry that included an appropriate comparative analysis and did not merely rely on formulaic mirror comparator groups. The Tribunal considered volumes of information concerning the relevant context, including data regarding the individuals engaged as SAWP workers, their disadvantage, the occupational hazards of their work, and international comparators. The Tribunal compared and contrasted the circumstances of SAWP workers with those engaged in mining, construction, and the agriculture industry more generally. After doing so, the Tribunal concluded that the distinction drawn by s. 10(5) is not discriminatory. The Tribunal accepted that s. 10(5) of the Act has a disproportionate effect on SAWP workers. However, the Tribunal did not accept that this distinction created a disadvantage by perpetuating prejudice or stereotyping contrary to s. 1 of the Code. The Tribunal found that the distinction drawn by s. 10(5) corresponds to the actual circumstances of SAWP workers, as the evidence before the Tribunal was that SAWP workers face a lower risk of workplace fatality from a lesser variety of hazards than construction and mining workers included in s. 10(5) of the Act.
[65] The Tribunal reasonably concluded that the high rate of traumatic fatalities and the wide variety in the causes of death among construction and mining workers, particularly as compared with SAWP workers, justified the need for an inquest in the case of every workplace death of a construction or mining worker but not of every SAWP worker.
[66] The Tribunal accepted that for the years 1990 to 2008, the rate of traumatic fatality was 6.3 per 100,000 construction workers, between 16.8 and 24.0 per 100,000 mining workers, and only 2.4 per 100,000 SAWP workers.
[67] The Tribunal acknowledged that the annual traumatic fatality rate for workers in agriculture generally for that period was between 14.9 and 25.6 fatalities per 100,000 workers. However, the Tribunal rejected the applicant’s submission that the higher traumatic fatality rate in agriculture as a whole established that there was discrimination against SAWP workers.
[68] The Tribunal noted the requirement for a flexible and contextual inquiry and explained why it was choosing to focus on the fatal risks or dangers present for SAWP workers and the purposes of holding mandatory inquests. This approach is consistent with the Supreme Court’s approach in Withler.
[69] Furthermore, the Tribunal did not err by failing to cite Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624, 151 D.L.R. (4th) 577, at para. 78, as that case is distinguishable from the facts in this case. Eldridge involved the failure of the government to ensure that deaf persons benefitted equally from a service offered to everyone, whereas the present case deals with a very targeted benefit granted to only a few groups.
[70] Finally, we disagree with the applicant’s submission that the Tribunal’s analysis under s. 11 of the Code was flawed.[^3] The Tribunal considered whether the applicant had established that s. 10(5) results in adverse effect discrimination. Having found that he did not, the Tribunal was not required to consider whether SAWP workers’ exclusion from s. 10(5) was reasonable and bona fide under s. 11 of the Code.
[71] We do view with some concern the fact that there has never been a single discretionary coroner’s inquest into a SAWP worker death in Ontario. However, on the evidence before the Tribunal, the workplace fatality rate among SAWP workers is much lower than the rate for construction and mining workers, and the causes of workplace death among SAWP workers are not as varied as they are for construction and mining workers. There is therefore good reason to conduct an inquest into all workplace construction and mining deaths but not all SAWP workplace deaths.
[72] The Tribunal’s conclusion that it is not discriminatory not to require an inquest for every SAWP workplace fatality was therefore reasonable.
4. Did the Tribunal fail to comply with s. 45.5(2) of the Code?
[73] The applicant argues that the Tribunal failed to abide by s. 45.5(2) of the Code (which requires it to consider a policy approved by the OHRC if a party to a proceeding requests that it do so) when it failed to recite the OHRC’s Policy and Guidelines on Racism and Racial Discrimination in its reasons.
[74] While there is a statutory requirement that the Tribunal consider an OHRC policy in a proceeding if requested by a party, there is no statutory requirement that the policy be expressly mentioned in the Tribunal’s reasons. Adjudicators and judges are presumed to have considered all the parties’ submissions and materials. Reasons need not include all arguments, statutory provisions, and jurisprudence referred to in parties’ submissions in order for the decision to be reasonable as long as it is clear from the reasons that the Tribunal considered the principal elements of the applicant’s submissions (Newfoundland and Labrador Nurses’ Union, at para. 16).
[75] In this case, the Tribunal took a broad and contextual view of the effects of racial discrimination, even if it did not specifically cite the OHRC’s policy on that topic.
Summary of Conclusions:
[76] The applicant seeks judicial review of the decision of the Tribunal dismissing his complaint that s. 10(5) of the Act discriminates against migrant farm workers employed under the SAWP on the basis that it denies them the benefit of a mandatory inquest into workplace deaths that is currently extended to workers in the mining and construction industries.
[77] The standard of review on an application for judicial review of a conclusion concerning discrimination made by the Tribunal is reasonableness.
[78] The two-step test for discrimination in s. 15 Charter cases confirmed by the Supreme Court of Canada in Kapp applies to Code challenges to government benefit plans or legislative schemes. However, as noted in the decision of the Ontario Court of Appeal in Tranchemontagne, because of the differences between the Code and the Charter, the precise nature of the evidence to be led and the stringency of the test to be applied to establish discrimination may vary and ultimately will depend significantly on the context.
[79] In this case, the Tribunal applied the appropriate test, and was reasonable in its approach to the evidence. It undertook the sort of nuanced inquiry necessary in this case to properly assess whether the distinction relied on by the applicant actually engaged the right to equal treatment under the Code in a substantive sense and reached reasonable conclusions.
[80] The Tribunal accepted that SAWP workers are a vulnerable group identified by prohibited grounds of citizenship and race and concluded that s. 10(5) of the Act had a disproportionate impact on them. However the Tribunal did not accept, having regard to the relevant context that this distinction created a disadvantage by perpetuating prejudice or stereotyping contrary to s. 1 of the Code.
[81] The Tribunal acknowledged that the annual traumatic fatality rate for workers in agriculture generally was high but held that the higher traumatic fatality rate in agriculture as a whole did not establish discrimination as the group identified by the applicant as entitled to the protection afforded by s. 1 of the Code was SAWP workers, more specifically.
[82] The distinction drawn by s. 10(5) of the Act not to include SAWP workers corresponds to the actual circumstances of SAWP workers, as SAWP workers face a lower risk of fatal workplace injury from a lesser variety of hazards than do construction and mining workers, who are included in s. 10(5) of the Act.
[83] The Tribunal therefore reasonably concluded that the exclusion of SAWP workers from the statutory provision requiring an inquest was not discriminatory. This conclusion was based on an extensive review of the factual context relating to SAWP workers and by comparing those circumstances with the circumstances of the employment conditions of construction and mining workers, whose deaths in the course of employment require an inquest.
[84] The Tribunal found no prima facie discrimination and there was therefore no need to consider a defence under s. 11 of the Code.
[85] For the reasons set out above, we find that the Tribunal’s analysis and conclusions are reasonable.
[86] The application for judicial review is dismissed.
Costs:
[87] The respondents do not seek costs, and none are ordered.
DAMBROT J.
THORBURN J.
I agree.
RADY J.
RELEASED: February 7, 2017
CITATION: 2017 ONSC 782
DIVISIONAL COURT FILE NO.: 377/14
DATE: 2017-02-07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, RADY and THORBURN JJ.
B E T W E E N :
WILBERT PEART Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES AND THE HUMAN RIGHTS TRIBUNAL OF ONTARIO Respondents
– and –
AFRICAN CANADIAN LEGAL CLINIC, INDUSTRIAL ACCIDENT VICTIMS GROUP OF ONTARIO AND SOUTH ASIAN LEGAL CLINIC OF ONTARIO Interveners
REASONS FOR JUDGMENT
DAMBROT and THORBURN JJ.
RELEASED: February 7, 2017
[^1]: The Tribunal accepted that although they are covered by the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 and the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, SAWP workers face significant barriers in accessing protections under these Acts. These barriers include SAWP workers’ fear of being fired and repatriated or being excluded from participation in the SAWP in subsequent years; their lack of knowledge and understanding about their statutory rights; language and cultural barriers; and the difficulty in proceeding with statutory claims given the limited time these workers spend in Canada. The Tribunal also noted that the vulnerability of migrant farm workers stems primarily from the “closed” nature of their employment relationships, whereby a worker can only work for one employer under the terms of his or her work permit and transfers to other employers are very difficult and require new work permit applications. As a result, employers wield disproportionate power over the workers – well beyond what is experienced by Canadian citizens and permanent residents in their employment relationships. The Tribunal recognized that due to their fear of being repatriated, migrant workers are often exposed to health and safety risks and are unable to demand safer working conditions.
[^2]: The Tribunal held that these factors are more significant in the context of the other exceptional circumstances requiring an inquest, for example, deaths in prisons or psychiatric facilities.
[^3]: Subsections 11(1)-(2) of the Code provide as follows:
(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.