Citation and Court Information
CITATION: Polman v. CPAO et al., 2019 ONSC 5333
DIVISIONAL COURT FILE NO. DC-19-2470
DATE: 20190924
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Aston, S.T. Bale, Favreau JJ.
BETWEEN:
Nina Polman Appellant
– and –
Chartered Professional Accountants of Ontario (CPAO) Respondent
– and –
Certified General Accountants of Ontario Respondent
– and –
Human Rights Tribunal of Ontario Respondent
Self-represented
Peter James Osborne, Counsel for the Respondents Chartered Professional Accountants of Ontario and Certified General Accountants of Ontario
Brian Abraham Blumenthal, Counsel for the Respondent Human Rights Tribunal of Ontario
HEARD at Ottawa: September 13, 2019
Oral Reasons for Judgment
Aston J. (Orally)
[1] The Applicant seeks judicial review of the decision of the Human Rights Tribunal dated October 10, 2018, in which the Tribunal found that the Applicant had not been discriminated against by the Respondent Chartered Professional Accountants of Ontario (CPAO).
[2] The root of this Application is the failing grade the Applicant received after writing one of her final examinations in the process of becoming a Certified General Accountant (CGA).
[3] During the period the Applicant was enrolled in her studies, the accounting profession was in a period of flux. The CGA merged with the CPAO. Students who had not completed the CGA program could bridge into the CPAO program to complete their studies.
[4] The Applicant did not want to bridge into the CPAO program. Instead she opted to accelerate her studies and finish all of her CGA courses by the September 2015 deadline. In the event that the Applicant did not finish all her required courses by the September 2015 deadline, she would have still been permitted to bridge into the CPAO program afterwards.
[5] The Applicant failed the last sitting of one of her final CGA examinations in September 2015. The Applicant did not seek any accommodation prior to writing the examination in question. Rather than bridging into the CPAO program, the Applicant contested her examination results.
[6] She brought an application to the Tribunal alleging that she had been discriminated against. In particular, she submitted that: (1) the accelerated process was difficult for her because English was her second language; (2) the additional time should have been provided to her to complete the exam that she failed because that exam drew more heavily on English language skills than any other exams that she had written; (3) it was discriminatory not to allow her to rewrite the exam.
[7] The Tribunal found that the Applicant’s previous record of academic success demonstrated that she did not suffer any disadvantage related to the exam and even if she had, that disadvantage was not connected to her ethnic origin.
[8] Language ability is not a separate ground of discrimination under the Human Rights Code, R.S.O., 1990, c. H-19. The Tribunal found that even if the Applicant’s language abilities unfairly disadvantaged her during the exam process, she did not request any accommodation prior to writing the exam.
[9] The Tribunal found that the Applicant did experience a disadvantage by the accelerated process she undertook but the consequences of failing the exam were significantly mitigated by the ability to bridge into the CPAO program, which she chose not to do.
[10] In any event, the Tribunal held that the Applicant failed to show that any disadvantage she suffered from the accelerated program or deadlines was related to her ethnicity or place or origin.
[11] The Tribunal also dismissed an application for reconsideration.
[12] The issues before this Court are, first, whether the hearing was procedurally fair, and second, whether the Tribunal’s decision is reasonable.
[13] The appropriate standard of review is reasonableness. The Adjudicator’s decision arose from a highly specialized administrative regime in which the Adjudicator has expertise and it is protected by two clear privative clauses.
[14] In addition, prior jurisprudence has established a reasonableness standard of review while affirming that the highest degree of deference is owed. See Shaw v. Phipps, 2010 ONSC 3884, affirmed on this point by the Court of Appeal for Ontario, 2012 ONCA 155.
[15] The first question is whether the hearing was procedurally fair. The Respondent submits that the proceedings below were procedural fair because the Tribunal gave the Applicant numerous indulgences. In particular, the Respondent notes that the Tribunal extended time limits for accepting evidence, allowed the Respondent to make submissions in writing, and generally accommodated her requests as a non-legally trained litigant.
[16] Today the Applicant challenges the sufficiency of the reasons as a separate denial of procedural fairness. In Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 14, the Supreme Court of Canada made it clear that the inadequacy of the reasons does not result in a breach of a duty of procedural fairness. The adequacy is considered as part of the substantive review of the decision, when the court is considering the reasonableness, or in some cases the correctness, of the decision.
[17] The Applicant in this Court has failed to establish any of her allegations of procedural unfairness.
[18] Turning then to the question of whether the decision was reasonable, the Applicant submits that she proved a connection by showing her status as a ESL person was a factor related to her inability to pass her examination. In her material she cites: Liu v. Everlink, 2014 HRTO 202, to connect language ability to ethnic origin, a prohibited ground of discrimination under the Code.
[19] Today in oral submissions, the Applicant also asserts a reliance on the published policy of the Ontario Human Rights Commission. She submits that the Respondent set impossible deadlines for her to meet as a ESL student, withheld information relating to unification of CGA with CPAO and made false allegations about her exam performance. She further submits that the Tribunal failed to consider the evidence she presented about systemic racial profiling by the CGA. She submits she was racially profiled because the respondent was aware that she was an ESL student, gave changing explanations for her exam performance and graded her exam improperly, as well as failing to apply the published policy of the Ontario Human Rights Commission.
[20] The Respondent points out in its material that language ability is not a prohibited ground of discrimination under the Code. The Respondent submits that the holding of the Liu case was simply that using language ability as a pretext to fire an employee for their place of origin is prohibited. We accept that distinction.
[21] The Respondent further submits that there is no identifiable claim in the evidence for discriminatory harassment or racial profiling and that the Tribunal recognized that there was no evidentiary foundation for those claims.
[22] As noted in the Tribunal’s reasons, the principal point that the Applicant overlooks is the necessity for a nexus between language ability and ethnic origin. There’s nothing in the record to suggest that the Respondent targeted Russians or Russian speakers when it drafted examinations and examination procedures or decided how the merger between CGA and CPAO would take place.
[23] It is clear from the Tribunal’s reasons that the claim of discrimination is largely confined to “constructive discrimination”, which is sometimes called adverse effect discrimination, because the facts did not make out any direct discrimination by the Respondent. This form of discrimination has been codified in s. 11 by the Code. The Tribunal correctly articulated the test for constructive discrimination at paras. 7 and 30 of its reasons. Even if ESL speakers suffered in general from constructive discrimination by the Respondent as the Applicant alleges, it is not possible to connect to those speakers to a group of people identified by a prohibited ground under the Code.
[24] In short, the Tribunal identified the applicable law and applied it reasonably to the evidence. The reasons are lucid, rational and support the result.
[25] The Application is therefore dismissed.
___________________________ Aston J.
I agree
S.T. Bale J.
I agree
Favreau J.
Date of Reasons for Judgment: September 13, 2019
Date of Release: September 24, 2019
CITATION: Polman v. CPAO et al., 2019 ONSC 5333
DIVISIONAL COURT FILE NO.: DC-19-2470
DATE: 20190924
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Aston, S.T. Bale, Favreau JJ.
BETWEEN:
Nina Polman Appellant
– and –
Chartered Professional Accountants of Ontario (CPAO) Respondent
– and –
Certified General Accountants of Ontario Respondent
– and –
Human Rights Tribunal of Ontario Respondent
ORAL REASONS FOR JUDGMENT
Aston J.
Date of Reasons for Judgment: September 13, 2019
Date of Release: September 24, 2019