CITATION: Murray v. Human Rights Tribunal of Ontario, 2018 ONSC 2953
DIVISIONAL COURT FILE NO.: 166/17 JR
DATE: 20180510
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. HORKINS, CONWAY and C. MACLEOD JJ.
BETWEEN:
CLAIR B. MURRAY
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO, TORONTO ELECTRIC MODEL AVIATION CLUB AND M. ROGOZINSKY
Respondents
William Doodnauth, for the Applicant
Brian A. Blumenthal, for the Respondent, Human Rights Tribunal of Ontario
Michael Rogozinsky, acting in person
HEARD at Toronto: May 10, 2018
C. MACLEOD J. (Orally)
[1] This is an application for judicial review of a decision by the Human Rights Tribunal of Ontario (“The Tribunal”). On December 29th, 2016 a Vice-Chair of the Tribunal dismissed the applicant’s claim in which he sought a remedy for age discrimination and reprisal. On March 9th, 2017 the Vice-Chair also dismissed a request for reconsideration.
[2] The application for judicial review asserts lack of procedural fairness, error of law on the face of the record, errors in admitting and weighing of evidence, insufficient reasons and bias.
Background
[3] By way of background, the applicant was the Chief Flight Instructor for the Toronto Electric Motor Aviation Club (“TEMAC”), a position he had held for several years. TEMAC is an incorporated not-for profit hobby club. It is a volunteer organization and is affiliated with provincial and national associations of model aircraft flying enthusiasts. Besides his role with TEMAC, the applicant was also the president of the regional model aircraft organization, EMFSO.
[4] For various reasons it appears the applicant was in conflict with other members of the model aircraft flying community. For purposes of this decision, it is not important why there was conflict or how serious it was though the Vice-Chair believed it was related to the deep concern the applicant had for safety and his view that others did not take the issue seriously.
[5] On July 26th, 2012 the applicant was advised in an e-mail by the President of TEMAC that the applicant would be replaced as Chief Flying Instructor by the Assistant Chief Flying Instructor. The e-mail contained the assertion that the Board was actively pursuing the promotion of younger members of the club to positions of responsibility. The letter went on to thank him for his contributions and advised that the future of the club depended heavily on building on the “fine start” made by the applicant.
[6] This e-mail was the basis of the complaint to the Human Rights Commission. Following his initial complaint, one of the personal respondents apparently posted comments on a website which were critical of the applicant, critical of his personality and critical of his recourse to outside authorities including the police and the Human Rights Commission. The applicant then complained to the Commission that this was reprisal for his attempt to exercise his rights under the Ontario Human Rights Code.[^1]
[7] Ultimately the applicant was granted a hearing before the Tribunal. Following the inquiry, the Vice Chair concluded that although the e-mail of July 26th, 2012 referred to promotion of younger members and could have been construed as age discrimination, the applicant’s age was not the reason for removing him from his volunteer position.
[8] The Vice-Chair found that the executive of TEMAC wished to remove the applicant from his position of authority because of the internal conflict in the organization and it also wished to promote the Assistant because they feared he would otherwise quit the club. More importantly, the Vice Chair concluded that the applicant was well aware that his age was not what motivated the decision. He found that the applicant knew this at the time and he certainly knew this when he elected to continue his human rights complaint before the Tribunal.
[9] The Vice-Chair concluded that the applicant could not show that he experienced discrimination on the basis of age. In fact he ruled that the complaint had initiated and pursued the complaint in bad faith.
[10] Section 8 of the Code forbids reprisals against an individual for claiming and enforcing his or her rights under the Code. The Vice-Chair referred to previous decisions of the Tribunal holding that the protection of s. 8 applied even to unsuccessful claims but did not extend to making malicious claims. He held that on the facts of this case the applicant was not entitled to the protection of s. 8 because he knew his claim was not legitimate. Because he did not actually believe his rights under the Code were being infringed and was proceeding in bad faith, criticism posted on the internet was not a prohibited reprisal and the applicant was not entitled to the protection of s. 8 of the Code.
[11] As a consequence of these findings, the Vice-Chair dismissed the allegation of age discrimination and dismissed the allegation of unlawful reprisal.
[12] The applicant attacks these findings by way of an application for judicial review.
The Application for Judicial Review
[13] As summarized in the introduction, this court is asked to find a failure of procedural fairness and natural justice, bias, and errors of law. The errors alleged in the Notice of Judicial Review and itemized at pages 4 & 5 of the factum may be summarized as follows:
a. There are a series of complaints relating to the conduct of the hearing. Specifically the applicant complains that the Vice-Chair did not exclude witnesses, that he failed to control the process such that at least one witness was intimidated, that he limited the applicant’s submissions and he spoke to the applicant about mediation without the respondent being present.
b. There are complaints about evidence. Specifically the applicant complains that the Vice-Chair admitted hearsay over his objection and gave improper weight to that evidence.
c. There is a complaint about bias. The applicant contends there was a reasonable apprehension of bias arising from the preliminary hearing on January 9th, 2015.
d. The applicant contends that it is a reviewable error of law to find that the prima facie violation of the code in the July 26, 2012 e-mail removing the applicant from his volunteer position was justifiable because of conflict between the parties.[^2]
e. The applicant also contends there is an error of law due to inadequate reasons. Specifically the applicant complains that the Vice-Chair failed to acknowledge or address all evidence submitted or heard in the course of the hearing.
[14] There was no transcript of the hearing before the Tribunal. The record before this court consisted of the reasons given by the Vice-Chair and affidavit evidence tendered on behalf of the applicant. Those affidavits were admitted to deal with the issues of procedural fairness raised by the applicant.
Standard of Review & the Statutory Framework
[15] No “standard of review analysis” is engaged by considerations of procedural fairness and natural justice. That is to say that it is the function of the reviewing court to examine the record and to determine if there has been a failure of justice. The reviewing court considers whether or not fairness has been achieved in accordance with the tribunal’s own procedures and the factors identified in Baker v. Canada (Minister of Citizenship and Immigration)[^3]. Ordinarily if the tribunal hearing was procedurally unfair or violated the requirements of natural justice, the proceeding will be set aside.[^4]
[16] Substantive review of a Tribunal decision is different. Findings of fact and interpretations of law attracts deference and require the analysis set out in Dunsmuir v. New Brunswick.[^5]
[17] In both instances, context is important. The court must have regard to the statutory scheme, the nature of the tribunal, the nature of the rights in issue and other factors identified in the jurisprudence.
[18] The Human Rights Tribunal of Ontario is a specialized tribunal entrusted with the adjudication of complaints under the Ontario Human Rights Code. That is the Tribunal’s sole function. It has specialized expertise and procedures for which the legislature has mandated the highest level of deference.[^6]
[19] There is no appeal from decisions of the Tribunal and pursuant to s. 45.8 of the Code this court may only alter or set aside a decision by way of judicial review if the decision of the Tribunal is found to be unreasonable.[^7]
[20] In addition to the s. 45.8 privative clause, s. 43 (8) of the Code provides that the court may not set aside a decision of the Tribunal for failure to comply with procedural rules or for an exercise of discretion unless the failure or exercise of discretion “caused a substantial wrong which affected the final disposition of the matter”. This double privative clause restricts court intervention to the clearest of cases.
[21] The Tribunal is afforded great discretion in adopting efficient and effective procedures and it is not required to function like a court. While the Statutory Powers Procedure Act[^8] (“SPPA”) applies to the Tribunal it does so only insofar as the provisions of the Act do not conflict with the Code, the regulations or the Tribunal’s own rules of procedure. The Tribunal is specifically empowered to enact rules that override the SPPA.
[22] Those rules are important because they empower the Tribunal to determine its own procedure, to tailor the procedure to the nature of the matter before it and to use procedures other than traditional adjudicative or adversarial procedures.[^9] They also specifically empower a Tribunal member to offer mediation and in some instances to attempt to mediate. Finally, in common with all tribunals in Ontario, the Human Rights Tribunal of Ontario may admit any evidence at a hearing whether or not it is sworn and whether or not it would be admissible in a court.[^10]
Analysis
[23] The above factors are important to situate the work of the Tribunal within the Baker analysis.[^11] As the Supreme Court has indicated, the duty of procedural fairness is flexible and variable and depends on the context of the statute as well as the particular rights affected.
[24] It is misguided to suggest that admission of hearsay, failure to exclude witnesses, an informal or interrogatory style of hearing or reliance on unsworn documents is sufficient to raise an inference that there has been a failure of natural justice. The legislation permits the Tribunal to adopt an informal procedure and does not require that it confine itself to admissible evidence. This does not empower the Tribunal to deny procedural fairness but the core requirement of that duty is to ensure that the parties affected by the decision have a meaningful opportunity to present their case and to have it fully and fairly considered. Although the reviewing court is entitled to determine if the requisite degree of procedural fairness has been afforded, fairness is neither an immutable set of requirements nor a requirement of perfection.
[25] We see no merit to the allegation of bias. There is nothing to support the allegation in the record and only a bald assertion in the affidavit filed on this application. Moreover it does not appear this was raised at the hearing. The Vice-Chair was not asked to recuse himself.
[26] We do not regard the reasons as inadequate. The Clifford case cited by the applicant is authority for the fact that reasons need to be assessed functionally. The reasons must be adequate to explain the basis for the decision and to logically link this basis to the decision. This does not require a tribunal (or a court for that matter) to refer to every piece of evidence or set out every finding or conclusion in the process of arriving at a decision. In this case the reasons leave no doubt as to the basis for the decision.
[27] There is room for concern about lack of civility and permitting witnesses to be rude to each other at a hearing. A person presiding at a hearing has a duty to control the process and to maintain order and civility but of course emotional outbursts and lack of civility do sometimes occur. This does not ordinarily invalidate the process or rise to the level of denial of natural justice. It does not appear that any submissions were made to the Vice-Chair about this issue and notwithstanding that one of the witnesses swears he felt intimidated, the applicant has not shown that any evidence was actually suppressed.
[28] We do not find that the applicant was prevented from presenting his case. The central finding that the applicant did not experience discrimination based on age is anchored in evidence that the applicant knew the basis for the decision to replace him, admitted to another witness that he knew that it was not about his age and his persistence in bringing the complaint forward despite this knowledge.
[29] These findings of fact articulated in the reasons are entitled to deference. We do not agree that the record supports a failure of natural justice. In any event, the evidence the applicant contests has largely to do with the reasons for the interpersonal conflict and who was at fault. This is not relevant to the basis for the Tribunal’s decision. The Tribunal did not determine that the applicant was treated fairly. It only held that he was not a victim of discrimination within the ambit of the Code and was not protected by s. 8.
[30] The applicant has misunderstood the basis for the Tribunal’s finding. The applicant casts this as a finding that there was prima facie discrimination but it was justified because of the conflict. That is not the finding. The finding was that although the e-mail used language that could have been interpreted as discrimination on the basis of age, in fact the removal was because of the conflict and the desire to keep the Assistant Flying Instructor in the club. The critical finding for the adjudicator was his finding that the applicant knew it was not about his age and that he proceeded with the complaint in bad faith.
[31] We conclude that the Tribunal’s decision was reasonable.
Conclusion
[32] For the record, we note that only the Tribunal filed responding material. The individual respondent, Mr. Rogozinsky was present in court. The President of the corporate defendant was also present. Neither were represented by counsel and they made no submission.
[33] For the reasons given above, the application for judicial review is dismissed.
C. HORKINS J.
[34] I have endorsed the Application Record for Judicial Review as follows: “This appeal is dismissed for oral reasons delivered today. On consent the title of proceeding shall be amended as follows: “Social Justice Tribunals of Ontario” is deleted and replaced with “Human Rights Tribunal of Ontario”. No costs are ordered.”
___________________________ C. MACLEOD J.
I agree
C. HORKINS J.
I agree
CONWAY J.
Date of Reasons for Judgment: May 10, 2018
Date of Release: May 14, 2018
CITATION: Murray v. Human Rights Tribunal of Ontario, 2018 ONSC 2953
DIVISIONAL COURT FILE NO.: 166/17 JR DATE: 20180510
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. HORKINS, CONWAY and C. MACLEOD JJ.
BETWEEN:
CLAIR B. MURRAY
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO, TORONTO ELECTRIC MODEL AVIATION CLUB AND M. ROGOZINSKY
Respondents
ORAL REASONS FOR JUDGMENT
C. MACLEOD J.
Date of Reasons for Judgment: May 10, 2018
Date of Release: May 14, 2018
[^1]: RSO 1990, c. H.19 [^2]: This is a misstatement of the ruling which we will discuss momentarily [^3]: 1999 699 (SCC), [1999] 2 SCR 817 [^4]: Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670; 98 OR (3d) 210 (C.A.) [^5]: 2008 SCC 9 [^6]: See Big Inc. v. Islam, 2015 ONSC 2921 (Div. Ct.) [^7]: The statute reads “patently unreasonable” but it was enacted prior to Dunsmuir in which the Supreme Court collapsed the meaning of “patently unreasonable” and “unreasonable” into a single standard of reasonableness. [^8]: RSO 1990, c. S.22 [^9]: Human Rights Code, RSO 1990, c. H.19 as amended, ss. 40, 41& 43 and the HRTO Rules of Procedure [^10]: Statutory Powers Procedure Act, RSO 1990, c. S.22 as amended, s. 15 [^11]: Baker v. Canada 1999 699 (SCC), [1999] 2 SCR 817