DIVISIONAL COURT FILE NO.: 352/03

DATE: 20050121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J., SPEYER and JARVIS JJ.

B E T W E E N:

DEBORAH ERVINE

Peter J. Chapin, Dan Ublansky, for the Applicant

Applicant

• and -

ONTARIO HUMAN RIGHTS COMMISSION, ROYAL AND SUN ALLIANCE INSURANCE COMPANY OF CANADA and KEITH EVA

Cathy Pike, for the respondent, Ontario Human Rights Commission

Respondents

W.J. McNaughton, for the respondents, Royal and Sun Alliance Insurance Company of Canada and Keith Eva

HEARD: January 17, 2005

[1]. This application is brought for a judicial review of a decision of the Ontario Human Rights Commission dismissing the applicant’s human rights complaint without a hearing. This initial decision, dated September 28, 1999 was reconsidered and upheld in a decision dated February 3, 2003.

[2]. In September 1990, approximately six months after commencing employment with Royal and Sun Alliance Insurance Company (“Royal”), the applicant was diagnosed with depression and anxiety. She immediately received short term disability benefits. In August 1991, approximately one month prior to the termination of the short term benefits, Royal’s disability insurer wrote Ms Ervine’s treating physician indicating the company was prepared to provide her with a rehabilitation position as a programmer/analyst. There was no response to this proposal.

[3]. On September 20, 1991 the applicant began receiving Long Term Disability Benefits. The nature and duration of those benefits is important. Ms Ervine was eligible to receive LTD Benefits until January 20, 1993 on condition that she was totally unable to return to her former job as a data base analyst. It is particularly important to note the LTD Plan also provided for the continuation of benefits as long as the complainant was totally disabled from taking any employment.

[4]. In May 1993, Royal requested the applicant provide information about her current medical situation. No immediate response was forthcoming. However, on August 11, 1993, Ms Ervine’s physician submitted a report to the insurer. In response to the question of whether the applicant could work at her own occupation, the physician indicated on the form, “not at present”. Importantly, no answer was provided by the physician in response to the question of whether, in the physician’s view, the applicant could work at some occupation other than her own. The form was left blank by the physician in response to the question posed.

[5]. It is noted career counseling was provided to the applicant during the period of time she was receiving long term disability benefits and she was advised to undertake vocational retraining. She expressed an interest in pursuing a career as a teacher and indeed applied for entry at the Faculty of Education, York University for the fall of 1993. Although her application to the Faculty of Education was not accepted, she was admitted to a general programme.

[6]. On the 10th of September 1993 her employer terminated her employment and on September 20th her long term disability benefits ended. The applicant said she contacted a Human Resources representative of her employer on September 3, 1993 to discuss her possible return to work in an alternate position. The company, in its submission to the Commission, denied this stating she had only communicated with Human Resources with a view to having them look into what unemployment insurance benefits might be available.

[7]. The applicant filed her first complaint with the Human Rights Commission on June 7, 1994. That complaint contained the following paragraph:

On or about August 11, 1993 I had a psychiatric assessment conducted by Dr. P. Acharyya which indicates that although I was unable to perform the duties of my regular job I was able to return to work in an alternate position. Royal Insurance Canada was made aware of Dr. Acharyya’s conclusions.

[8]. The applicant’s amended complaint to the Human Rights Commission is dated May 10, 1999. In the amended complaint, some five years later, Ms Ervine repeats the same language quoted above that Dr. Acharyya had indicated that she was able to work in an alternate position.

[9]. Although the complainant indicates that Dr. Acharyya’s report was forwarded to the long term disability insurer, Royal Insurance takes the position that despite numerous requests, it never did receive a copy of Dr. Acharyya’s report. One thing is clear, the report, once it was produced, clearly showed that Dr. Acharyya had never written anything to indicate the complainant was able to return to work in an alternate position. As indicated on the August 11th medical report produced before us, the question as to whether the complainant was able to return to work in any occupation was left unanswered.

[10]. In the usual course of dealing with a complaint, a section 36 case analysis was prepared by staff. In its report dated July 9, 1999 staff recommended that the Commission decide to refer this complaint to a Board of Inquiry pursuant to s. 36(1) of the Code. Despite that recommendation, and after reviewing the case, the Commission, in a decision dated September 28, 1999, signed by the Chief Commissioner, decided not to refer this complaint to a board of inquiry for the following reasons:

1. the evidence indicates that the complainant was not subjected to unequal treatment in employment because of her handicap;
2. the evidence indicates that the complainant was unable to perform the essential duties of her position, although she was accommodated short of undue hardship.

[11]. It is the position of the complainant that the Commission erred in law in the following respects:

1. by misapprehending the law pertaining to the duty to accommodate;
2. by taking into account irrelevant evidence;
3. by weighing and drawing conclusions from the evidence before it, rather than merely screening the evidence to determine whether it was sufficient to warrant a hearing on the merits; and
4. by reaching a conclusion that was unreasonable and patently unreasonable.

[12]. Although the applicant sought to characterize the standard of review as one of correctness, we are all of the view that the appropriate standard of review in matters such as this is one of patent unreasonableness. As MacFarland J. stated in Campbell v. Ontario (Rights Commission), [2004] O.J. 530,

The applicant seeks judicial review of the decision of the Ontario Human Rights Commission dated November 21, 2000 whereby the Commission determined that the evidence in this case did not warrant referral to a Board of Inquiry and of the decision made July 17, 2002 where, on reconsideration the Commission remained of the view that the evidence did not warrant referral to a Board of Inquiry.

It is clear that the function of the Commission which is engaged under s. 36 and 37 of the Act is administrative in nature. See Pieters v. University of Toronto, [2003] O.J. No. 1316 (Div.Ct.), and Gismondi v. Ontario (Human Rights Commission), [2003] O.J. No. 419 (Div.Ct.).

Courts over and over again have recognized the fact-finding expertise of the Commission in matters of human rights. The standard of review is that of patent unreasonableness. The applicant must satisfy this Court that the decisions of the Commission are patently unreasonable. The evidentiary record demonstrates clearly that there was evidence capable of supporting the Commission’s decision. While the applicant points to some evidence and certain submissions which support her position, there is equally evidence contra.

In our view, the evidence as a whole is entirely capable of supporting the decisions of the Commission which are before us. We are not persuaded the decisions, two of them, are patently unreasonable. It was not for the Commission at either stage before this Court to make a finding of discrimination.

[13]. Madam Justice MacFarland’s comments are apposite to the present case.

[14]. The applicant argues that the Commission exceeded its jurisdiction by weighing and drawing conclusions from the evidence before it rather than merely performing a screening function. We disagree. In this case, the Commission had before it not only the complaint, but also the case analysis, the complainant’s submission with respect to the case analysis, the respondents’ submissions to the case analysis, and a legal opinion. On the basis of its review of all of that information and after exercising what we can only conclude was an appropriate screening, the Commission determined this was not a case to forward on to a board of inquiry. As indicated, the decision was reconsidered and in the reconsideration report staff concluded there was insufficient evidence to warrant referral of this complaint to a board of inquiry. The Commission then reconfirmed its earlier decision stating as follows, 1. the evidence indicates that the complainant was not subjected to unequal treatment in employment because of her handicap, and 2. the evidence indicates that the complainant was unable to perform the essential duties of her position, although she was accommodated short of undue hardship.

[15]. In argument before us, applicant’s counsel submitted that Royal demonstrated a lack of willingness to appropriately accommodate Ms Ervine with respect to a job within the company. We disagree. In our view, the employer accommodated the applicant in a number of ways prior to her termination. First of all, the employer made due with Ms Ervine’s absence for a period of almost three years. The employer also provided, though its insurer, vocational rehabilitation assessment after having the applicant assessed psychiatrically in 1992. This vocational assessment identified a strong interest on the part of the applicant in teaching and social services. As far as her employer was concerned, all of the applicant’s rehabilitation efforts were directed towards employment in another career and not towards a return to Royal Insurance.

[16]. In our view, in addressing the applicant’s complaint, the Commission acted well within its jurisdiction and expertise. After a consideration of all of the evidence before it, the Commission concluded the applicant did not wish to return to her employment with Royal Insurance. In the reconsideration report, the Commission stated that the evidence indicated the following:

1. Royal was aware that the applicant had expressed an interest in teaching;
2. the applicant had applied for admission to York University’s Bachelor of Education programme;
3. the applicant had failed to reply to Royal Insurance’s offer to reintegrate her into the work place in August 1991;
4. the medical information indicated she was not suited to continue employment with Royal Insurance and they concluded she was not interested in being reemployed.

[17]. After a thorough review of all of the evidence before the Commission, in its initial decision and in its reconsideration decision determined there was insufficient evidence for this matter to go before a tribunal. The evidentiary record, we are satisfied clearly demonstrates there was evidence capable of supporting these decisions by the Commission, and therefore these decisions cannot be in any way characterized as being patently unreasonable.

[18]. Having embarked on a fact-finding exercise to determine whether the applicant’s complaint should be referred to a board of inquiry, the Commission acted entirely within its expertise and jurisdiction and properly addressed the question of accommodation.

[19]. Accordingly, the application is dismissed.

[20]. At the conclusion of argument, Royal submitted that in the event it was successful in this application it would seek $15,000 in costs. The Commission sought the sum of $2,000 in the event of success. Mr. Chapin wished to reserve his submissions pending the outcome of the appeal. In the normal course, costs ought to follow cause. However, Mr. Chapin is given ten days to make short submissions in writing as to whether costs ought to be awarded to the respondents, and if so, in what amount. Each respondent shall have ten days to briefly reply.

Cunningham A.C.J.

Speyer J.

Jarvis J.

Released: January 21, 2005

DIVISIONAL COURT FILE NO.: 352/03

DATE: 20050121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J., SPEYER & JARVIS JJ.

B E T W E E N:

DEBORAH ERVINE

Applicant

• and –

ONTARIO HUMAN RIGHTS COMMISSION, et al.

Respondents

REASONS FOR JUDGMENT

Released: January 21, 2005