CITATION: 2076831 Ontario Ltd. v. Qiu, 2018 ONSC 7295
DIVISIONAL COURT FILE NO.: 155/18 DATE: 20181205
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. HORKINS, CONWAY, and LABROSSE JJ.
BETWEEN:
2076831 ONTARIO LTD. o/a REDLINE AUTO SALES and SERGEY BARANDICH
Applicants
– and –
NAN QIU and HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
Counsel:
Nikolay Y. Chsherbinin, for the Applicant
Toby Young and Janina Fogels, for the Respondent Nan Qiu
Jason Tam, for the Respondent Human Rights Tribunal of Ontario
HEARD at Toronto: December 5, 2018
ORAL REASONS FOR JUDGMENT
CONWAY J. (Orally)
[1] The Applicants seek judicial review of the decision of Adjudicator Keith Brennenstuhl of the Human Rights Tribunal of Ontario dated October 31, 2017 and of his reconsideration decision dated December 14, 2017.
[2] 2076831 Ontario Ltd. o/a Redline Auto Sales (“Redline”) is a used car dealership owned and managed by Sergey Barandich. The Respondent Nan Qiu provided bookkeeping and accounting services to Redline from July 4, 2011 to December 9, 2015. On March 4, 2016, Ms. Qiu filed an application with the Tribunal alleging discrimination and harassment in employment on the basis of race, ancestry, ethnic origin and sex, contrary to s. 5(1) and s. 7 of the Human Rights Code, R.S.O. 1990, c. H.19, and reprisal contrary to s. 8 of the Code.
[3] Ms. Qiu’s application was heard on May 5, 2017. The Adjudicator found the Applicants jointly liable for the breach of the right to be free from discrimination in employment because of her sex, as set out in s. 5(1) of the Code. He also found that Redline had retaliated against Ms. Qiu for complaining about his sexualized comments and conduct by terminating her employment, constituting reprisal as set out in s. 8 of the Code. The Adjudicator awarded Ms. Qiu $30,000 in general damages as compensation for injury to her dignity, feelings and self-respect, taking into account the objective seriousness of the conduct and the effect on the particular applicant.
[4] The Adjudicator made two central findings. First, he found that the Applicants had breached s. 5(1) of the Code by creating a poisoned work environment, based on Mr. Barandich’s ongoing inappropriate touching, sexualized jokes and pictures, and derogatory comments about female clients and Ms. Qiu’s attire. Second, the Adjudicator found that the Applicants had retaliated against Ms. Qiu by terminating her employment as a result of her complaints about Mr. Barandich’s comments and conduct. The Adjudicator denied the Applicants’ request for a reconsideration of his decision.
[5] The standard of review of the Adjudicator’s decision is reasonableness: Shaw v. Phipps, 2012 ONCA 155, at para. 10. For procedural fairness, there is no standard of review – the question is whether the appropriate level of fairness has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817.
[6] The Applicants submit that the Adjudicator erred by awarding augmented damages on the basis of sexual harassment jurisprudence when he made no explicit finding of sexual harassment. I reject this submission. In my view, the Arbitrator exercised his remedial discretion, canvassed the range of damages in the case law, and applied the relevant legal principles to the specific facts of this case. His application of the case law was reasonable in light of his finding that it was Mr. Barandich’s sexualized comments and conduct that created the poisoned work environment and his finding that Ms. Qiu suffered reprisal for objecting to that toxic environment. I further note that at the hearing, the Applicants did not contest or address Ms. Qiu’s request for $30,000 in damages, or make any submissions with respect to the jurisprudence which she relied on before the Adjudicator.
[7] The Applicants submit that the Adjudicator erred by relying on colour as a discrimination factor without giving notice to the parties to make submissions. Since the Adjudicator did not make any findings of liability based on colour, this issue is moot.
[8] The Applicants challenge the Adjudicator’s findings of fact and his conclusion that Ms. Qiu was subjected to a poisoned work environment. These factual findings were based on the Arbitrator’s assessment of the parties’ credibility and reliability, and are entitled to deference. His conclusion that Mr. Barandich’s sexualized comments and conduct constituted a poisoned work environment was open to him on the record and was reasonable. These do not raise issues of procedural fairness as submitted by the Applicants.
[9] The Applicants submit that the Adjudicator erred by treating all incidents that Ms. Qiu complained of as forming part of a series of occurrences, rather than separate contraventions of the Code, as there was a gap of more than one year between the incidents. This argument pursuant to s. 34 of the Code was not raised before the Adjudicator or on reconsideration and cannot be raised for the first time before this court. In any event, the mere fact of a one year gap does not unilaterally sever what is otherwise a clear series of incidents: Association of Ontario Midwives v. Ontario (Health and Long Term Care), 2014 HRTO 1370, at para. 43. In this case, it was reasonable for the Adjudicator to treat Mr. Barandich’s conduct as an ongoing series of incidents. This does not raise a jurisdictional issue, as submitted by the Applicants, as it was clear that Ms. Qiu’s application was brought within the one year period set out in s. 34(1) of the Code.
[10] The Applicants submit that the Adjudicator’s reasons contained a reproduction of 85-95% of Ms. Qiu’s written closing submissions. In my view, while the Adjudicator may have reproduced portions of Ms. Qiu’s submissions with respect to the facts and the law, it is evident that his analysis, credibility assessments and factual findings were made independently. This was not a wholesale incorporation of Ms. Qiu’s materials showing that the Adjudicator did not put his mind to the issues and decide them independently and impartially: see Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at para. 72. There is nothing to displace the presumption of independence and impartiality that applied to the Adjudicator.
[11] The application for judicial review is dismissed.
C. HORKINS J.
[12] I have endorsed the Applicant’s Application Record as follows: “This appeal is dismissed. Oral reasons provided today. The moving party shall pay the respondent costs fixed at $7,000 all inclusive. The Tribunal does not seek costs.”
Conway J.
I agree
C. Horkins J.
I agree
Labrosse J.
Date of Reasons for Judgment: December 5, 2018
Date of Release: December 6, 2018
CITATION: 2076831 Ontario Ltd. v. Qiu, 2018 ONSC 7295
DIVISIONAL COURT FILE NO.: 155/18 DATE: 20181205
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. HORKINS, CONWAY, and LABROSSE JJ.
BETWEEN:
2076831 ONTARIO LTD. o/a REDLINE AUTO SALES and SERGEY BARANDICH
Applicants
– and –
NAN QIU and HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
ORAL REASONS FOR JUDGMENT
CONWAY J.
Date of Reasons for Judgment: December 5, 2018
Date of Release: December 6, 2018