COURT FILE NO.: 608/03
DATE: 20050107
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, BROCKENSHIRE and HIMEL JJ.
B E T W E E N:
DR. SHIRLEY HASSARAM
Amani Oakley, for the Applicant
Applicant
- and -
ONTARIO HUMAN RIGHTS COMMISSION, ST. MICHAEL‘S HOSPITAL and DR. LINDA M. SUGAR
Raj Dhir, for the Ontario Human Rights Commission
Brian P. Smeenk, for St. Michael’s Hospital and Dr. Linda M. Sugar
Respondents
HEARD AT TORONTO: November 12, 2004
HIMEL J.
[1] Dr. Shirley Hassaram seeks judicial review of two decisions of the Ontario Human Rights Commission deciding not to deal with her complaint which alleges discrimination by her former employer, the respondent Hospital. The application for judicial review raises two questions:
(1) Was there a breach of the requirement of procedural fairness when the Commission made its determinations not to refer the complaints filed under the Human Rights Code, R.S.O. 1990, c.H.19 (“the Code”) for consideration on the merits?
(2) Were the decisions of the Commission outside its jurisdiction and, therefore, in error? In the alternative, were those decisions so patently unreasonable as to justify the intervention of this court?
FACTUAL BACKGROUND:
[2] Dr. Shirley Hassaram is a medical doctor with a specialty in pathology who was employed by St. Michael’s Hospital, and worked under the supervision of the Acting Chief of Pathology, Dr. Linda M. Sugar. Dr. Hassaram became ill in 1999 with a condition that made it difficult for her to continue to work in her field. She was diagnosed with Arnold-Chiari Malformation which is a condition affecting the brain and spinal cord and makes walking and standing problematic. She had surgery on August 20, 1999 and returned to work in October on modified duties because she could not stand for long periods of time and had to attend physiotherapy sessions. Because she continued to have difficulty with her schedule, she was permitted to take a vacation day each week.
[3] The applicant’s complaint stated that in mid-December, 1999, she was advised by her physician that she had returned to full-time hours prematurely and should return to reduced hours. On December 20, she met with Dr. Sugar, and persons from the Hospital’s Human Resources department to discuss her hours of work and her return to full-time. The applicant says that Dr. Sugar expressed some concern that the applicant would not be able to cope, but the applicant was willing to try and Dr. Sugar concurred.
[4] A change in the location and arrangements of her office complicated the situation in January, 2000, increasing the physical aspects of her work. As well, the need for attendance at physiotherapy limited her production. She also had a concern that time was not allowed in her schedule for the academic aspects of her position. She spoke to Dr. Treger, the doctor in charge of scheduling, and asked whether she could be put on a schedule of working on alternate days. She was told that this could not be done, as the applicant was required to be available for work when other pathologists were not available.
[5] In February, Dr. Sugar commented that the applicant’s turn-around time was slow and the applicant replied that she was having difficulty coping with the workload and didn’t know what to do. Subsequently Dr. Treger said that the applicant’s days would be reduced where possible.
[6] Later, in March, the applicant met with Dr. Treger and Dr. Sugar who proposed a new assignment to help reduce the applicant’s heavy workload. She was to be assigned to “quick sections” for the next schedule period. The applicant told them that she could not do this work as it required too much standing and moving for her medical condition. Later in the month, Dr. Treger said the applicant would be assigned to “grossing” of specimens for three consecutive days in the week. The applicant said that she could not do this work because of the standing required. Dr. Treger told her to be more flexible.
[7] The applicant said that she now realized that she was having great difficulty attempting to work a full-time schedule and asked to switch to a part-time schedule. A meeting was held to consider this request and to review her medical condition. Concern was expressed by the Hospital representatives as to who would do the work if the applicant went on part-time, but the request was taken under consideration.
[8] In April, the applicant was examined by her physicians who concluded that, although Dr. Hassaram was making slow, but steady progress, her condition still required a modified schedule. A letter containing this appraisal was given to the respondent by Dr. Hassaram.
[9] On May 3, a meeting was held with Dr. Sugar and a Human Resources representative, Ms. Neale. Dr. Sugar complained that the applicant’s performance continued to lag, that other members of the department were suffering and said that the applicant would indeed be scheduled for grossing and to do rounds. The applicant said that she was not allowed to raise her concerns as to this schedule and that Ms. Neale took the attitude that the applicant’s quality of life was not the Hospital’s concern.
[10] On May 8, the respondent sent a letter to the applicant outlining the expectation that she would promptly improve her turn-around time and become more organized. The letter stated that the applicant’s physical restrictions:
… are in no way tied to the performance of these expectations. Your physical restrictions have been accommodated by freeing you from doing autopsies and covering the O.R. As well, you do not participate in weekend or evening on-call. You had concerns about your ability to complete your daily work because of fatigue and indicated a wish to work part-time. Your position as a full time academic Pathologist cannot be converted to a part-time position. Furthermore, since you are already having difficulty with turn-around time, working on a part-time basis would only further increase the delay in the reporting of your cases. As it is, your modified work program is having a negative impact on the other Pathologists in the department.
[11] The letter concluded with the statement that “…and any further deterioration of performance will be dealt with through progressive disciplinary action”.
[12] The applicant’s statement sets out how distressed she was at receiving this letter. It was clear that the respondent would not extend further accommodation to her for her medical problems, and regarded her work performance as unrelated to her health. Unwilling to risk being dismissed, as she was sure that a dismissal would severely prejudice applications in future for other positions, and convinced that she could not perform as expected, she felt that she had no option but to resign her position. She did so by letter dated June 5, 2000. She actually left the Hospital on September 8, 2000.
[13] At the same time, she applied for long-term disability benefits. The insurer advised her on March 15, 2001 that her application for disability benefits had been denied because she had been able to work on a full-time basis before she left her employment. Dr. Hassaram attended at the Ontario Human Rights Commission on March 23, 2001 and filed a complaint on April 12, 2001 alleging that St. Michael’s Hospital and her supervisor, Dr. Sugar, discriminated against her because of her disability and failed to accommodate her. No such allegation was ever made while Dr. Hassaram was an employee. The Hospital and Dr. Sugar maintain that extensive steps were taken to accommodate her disability.
[14] The Commission considered the complaint and, on March 3, 2002, rendered a decision to not allow the complaint to proceed. It invoked its discretion under Section 34 of the Code that it would not deal with the complaint as the applicant had filed her complaint more than six months after the events giving rise to it occurred. The applicant sought a reconsideration of the Commission’s decision under Section 37. Commission staff wrote a report that there had been delay of four months past the six month limit and that there was evidence of substantial prejudice to the respondent. The applicant made further submissions and Commission legal staff wrote a further report outlining that the delay in filing the complaint was really only one month past the six month limit and that there was no evidence of substantial prejudice. The Commission upheld its original decision not to deal with the complaint based upon the complaint being out of time by four months and that the delay was not occasioned in good faith. The Commission determined that the application was outside the six months and exercised its discretion not to consider the complaint.
POSITIONS OF THE PARTIES:
[15] The applicant argues that the decisions of the Commission made under Section 34 and 37 of the Code were incorrect. In the alternative, she takes the position that the decisions were patently unreasonable and that this court should interfere with the exercise of discretion and refer the matter back to the Commission to be considered on its merits.
[16] The applicant argues that the six month period does not apply as she filed her complaint within weeks of learning that the insurer was denying long-term disability benefits and that the exercise of discretion under Section 34 was not even triggered. Moreover, the Commission erred in finding that the applicant was not acting in good faith. In the alternative, the complainant argues that if the exercise of discretion is triggered, the Commission’s decision was patently unreasonable.
[17] The applicant also challenges the Commission’s decisions on the basis of lack of procedural fairness:
(1) the applicant’s reply submissions to the response to the complaint were not placed before the Commission;
(2) the applicant’s submission to the first Reconsideration Report was not placed before the Commission; and
(3) there was a report attached to the respondent’s submission including the first Reconsideration Report of staff, and that report should not have been before the Commission.
[18] The Commission, supported by St. Michael’s Hospital and Dr. Sugar, take the position that there was procedural fairness and that the Commission fulfilled its duty of fairness by providing notice of the case to meet and that the applicant was given an opportunity to make submissions. The Commission and the employer also take the position that the Commission exercised its discretion in accordance with Section 34 of the Code and that this court should not interfere with the exercise of discretion unless it was patently unreasonable. In their submission, the Commission had properly exercised its discretion in refusing to refer the complaint for consideration on its merits because the complaint was filed outside the six month period.
ANALYSIS:
[19] The application for judicial review raises two questions:
(1) Were the rights of the applicant to procedural fairness infringed because two documents submitted by the applicant were not placed before the Commission and the earlier Reconsideration Report was placed before the Commission?
(2) If there was procedural fairness, were the decisions of the Commission made on March 13, 2002 and February 5, 2003 to not refer the complaint for consideration on its merits incorrect or patently unreasonable?
[20] The right of procedural fairness includes that the complainant and parties affected be given notice of the facts, arguments and considerations upon which the decision is to be based and an opportunity to make submissions: see Payne v. Ontario (Human Rights) Commission). [2000] O.J. No. 2987 (C.A.); Pritchard v. Ontario (Human Rights Commission) [2001] O.J. No. 2788 (Div.Ct.); F.W.T.A.O. v. Ontario Human Rights Commission (1988) 67 O.R. (2d) 492 (Div.Ct.); Gismondi v. Ontario Human Rights Commission (2003), 169 O.A.C. 62 (Div.Ct.).
[21] In this case, the following procedure took place:
(1) Dr. Hassaram filed her complaint alleging discrimination on April 12, 2001;
(2) The Hospital and Dr. Sugar responded;
(3) Dr. Hassaram filed reply submissions;
(4) Commission staff prepared a Case Analysis Report under Section 34 and served it upon Dr. Hassaram who was given the opportunity to respond;
(5) The applicant and the Hospital and Dr. Sugar made further submissions which were given to the Commission.
(6) The Commission rendered its decision not to consider the complaint under Section 34;
(7) Dr. Hassaram filed a Request for Reconsideration under Section 37;
(8) Commission staff prepared a further revised Reconsideration Report dated December 5, 2002 recommending the Commission reverse its original decision under Section 34 and deal with the complaint.
(9) Dr. Hassaram did not file any submission in response;
(10) The Hospital and Dr. Sugar made written submissions and attached the Initial Reconsideration Report of staff which said that the complainant did not provide a reasonable explanation for the cause of delay.
(11) The Commission’s decision of February 5, 2003 did not reverse the decision under Section 34 to not deal with Dr. Hassaram’s complaint. The Commission was of the view that the events giving rise to the complaint occurred in June 2000 and that it was not satisfied that the delay was incurred in good faith.
[22] The applicant’s documents, except the reply submissions, were submitted to the Commission for consideration. In our view, failing to forward the reply submissions to the Commission does not offend the duty of fairness. Dr. Hassaram was given a full opportunity to respond and made extensive submissions which were given to the Commission through the original complaint and in response to the Section 34 Case Analysis Report.
[23] As for the submissions to the Reconsideration Report, the Commission staff did not forward this report but forwarded a new Reconsideration Report which was an appropriate procedure. The applicant had an opportunity to respond but chose not to do so.
[24] While the Report of the Initial Reconsideration panel of the Commission was attached to the submissions of the Commission staff, that Report did not in any way bind the Commission which had the right to make its own independent decision.
[25] We find that there was procedural fairness and that Dr. Hassaram was given a full opportunity to respond and make submissions. The decisions were reached by the Commission acting in accordance with the principles of natural justice and we see no reason to interfere on this basis. In Gismondi v. Ontario (Human Rights Commission) supra, the court said at 75:
Where the statutory authority has been exercised in good faith and in accordance with the principles of natural justice and where reliance has not been placed upon extraneous or irrelevant considerations, the courts should not interfere: “Maple Lodge Farms Ltd. v. Canada (1982), 137 D.L.R. (3d) (S.C.C.) at 562, Jazsairi v. Ontario (Human Rights Commission) (Div.Crt.), supra. Such is the case here.
[26] As for the decision of the Commission made under Sections 34 and 37, the applicant argues that the Commission exceeded its jurisdiction and committed an error by invoking the six month rule when the delay was less than that. Her position was that the six months should run from the rejection of her claim from Sun Life. Section 34(1) of the Code provides:
Where it appears to the Commission that,
(d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay,
the Commission may in its discretion, decide to not deal with the complaint.
[27] We are of the view that the Commission was entitled to make its own finding of fact regarding the timing of the complaint and when the six month period is triggered. In our view, it cannot be said that the Commission exceeded its jurisdiction and was in error.
[28] In our view, this exercise of discretion made by the Commission should only be set aside if we find that the Commission’s decision was patently unreasonable. In Baker v. Canada (Minister of Citizenship and Immigration) [1999] S.C.J. No. 39, the court held that it will not interfere with the exercise of a discretionary power by a statutory authority unless the decision made was patently unreasonable. In Re Maple Lodge Farms Ltd. and Government of Canada et al. (1982), 137 D.L.R. (3d) 558, the court said at 362:
It is, as well, a clearly established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[29] The standard of patent unreasonableness has been applied to decisions of the Ontario Human Rights Commission made under Sections 34, 36 and 37: see Gismondi v. Ontario (Human Rights Commission), supra. The courts have recognized the deference owed to the Commission on matters relating to its role and function under the Code and its expertise in fact finding and processing complaints under the Code. Sections 34, 36 and 37 of the Code give the Commission discretionary powers and the court should not interfere with or reverse a decision because it might have arrived at a different conclusion. The burden of establishing patent unreasonableness is a high one on an application for judicial review.
[30] The Commission based its decision on the facts including those outlined at the beginning of these Reasons. It is reasonable on those facts to conclude that any failure to accommodate the applicant’s disability occurred at the latest in May 2000 culminating in Dr. Hassaram’s resignation on June 5, 2000, effective September 8, 2000. It was reasonable for the Commission to reject Dr. Hassaram’s position that the delay in filing the complaint was due to her continuing discussions with Sun Life of Canada concerning long term disability benefits and that the triggering event was the decision to reject her application for coverage which was communicated on March 15, 2001. The Commission did not consider these negotiations with Sun Life to be relevant to the allegations in the complaint regarding the employer. Furthermore, the Commission was not satisfied that the delay in filing this complaint was incurred in good faith. It was reasonable for the Commission to conclude that the events giving rise to the complaint ended in September, 2000 and that the complaint was filed more than six months after the events. That finding was reasonable in light of the objectives of the Code and the specific factual context. There was evidence capable of supporting the Commission’s findings and it is not this court’s role to weigh the evidence and arrive at its own conclusions.
[31] In light of the standard of review and the facts upon which the decision was based, we find there was a rational basis for the Commission to conclude that the critical events giving rise to the complaint occurred before September 8, 2000 and that the insurer’s decision to deny long term disability benefits did not have any bearing upon the allegations concerning St. Michael’s Hospital and Dr. Sugar.
[32] We do not find the exercise of discretion by the Commission under section 34 to not deal with the complaint and on a reconsideration under Section 37 to be patently unreasonable or unreasonable simpliciter. It was open to the Commission to hold that it was not satisfied that the delay was incurred in good faith. The complainant offered no reasonable explanation for the delay. There are valid policy reasons for the Legislature to create a discretionary power in the Commission, which it can exercise in certain circumstances to decide which complaints should proceed. There is no reason to interfere with the Commission’s exercise of discretion in this case.
RESULT:
[33] The application for judicial review of the decisions of the Ontario Human Rights Commission is dismissed. If the parties are unable to agree on the question of costs, they may file written submissions within thirty days of the release of this judgment.
LANE J.
BROCKENSHIRE J.
HIMEL J.
Date of Release:
COURT FILE NO.: 608/03
DATE: 20050107
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, BROCKENSHIRE and HIMEL JJ.
B E T W E E N:
SHIRLEY HASSARAM
Applicant
- and -
ONTARIO HUMAN RIGHTS COMMISSION, ST. MICHAEL‘S HOSPITAL and DR. LINDA M. SUGAR
Respondents
REASONS FOR JUDGMENT
Date of Release: January 7, 2005