COURT FILE NO.: 287/06

DATE: 20061211

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Gary Malkowski, Applicant -and- Ontario Human Rights Commission and Her Majesty the Queen in right of Ontario as represented by the Minister of Municipal Affairs and Housing, Respondents

HEARD: October 19, 2006

BEFORE: Lane, Ground and Aitken JJ.

COUNSEL: Scott Simser, for the Applicant Anthony D. Griffin, for the O.H.R.C. Sara Blake and Robin Basu for the Attorney General.

R E A S O N S F O R D E C I S I O N

LANE J.:

[1] This is an application for judicial review of two decisions of the respondent Human Rights Commission (“Commission”). The first was a decision on March 29, 2005 deciding not to refer the applicant’s complaint against the respondent Minister to the Human Rights Tribunal. The second was a reconsideration decision of August 31, 2005 refusing to alter the first decision.

Background

[2] The applicant is a deaf person. He is unable to comprehend spoken-word movies in theatres without the assistance of rear window captioning. Assistive listening devices, which are located in some movie theatres, cannot help him. They are wired equipment which hard of hearing persons and persons whose deafness responds to hearing aids can hang around their necks so that their hearing aids pick up the sound more efficiently. Some deaf persons, including the applicant, do not hear well enough to take advantage of such devices, but there is technology to help them. A rear window caption board (“RWC”) can be installed at the rear of a theatre such that a portable reflector, obtained on request from the box office and installed on the armrest, can be used to read the captions. Such devices have been available since 1997.

[3] Section 3.8.3.7 of Ontario’s Building Code, O. Reg. 403/97, requires that certain theatres be equipped with assistive listening devices. However, the Building Code does not require any theatres to be equipped with RWC, although nothing in the Building Code prevents it. The evidence is that very few theatres have done so. The court was informed that there is on-going litigation with theatre chains alleging that they are in breach of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) by failing to provide the service of RWC.

[4] Mr. Malkowski filed a complaint with the Commission against the Crown in Right of Ontario (the “Crown”) as Represented by the Ministry of Municipal Affairs and Housing (“MMAH”). He alleged that the failure of the Crown and MMAH to include a requirement in the Building Code that theatres be equipped with RWC amounts to discrimination in the provision of a service on the ground of disability, contrary to ss. 1 and 9 of the Code.

The Legislation

[5] The relevant sections of the Code are reproduced below:

Services

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

Infringement prohibited

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

Decision to not deal with complaint

34. (1) Where it appears to the Commission that,

(a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;

(b) the subject matter of the complaint is trivial, frivolous, vexatious or made in bad faith;

(c) the complaint is not within the jurisdiction of the Commission; or

(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 not to deal with the complaint.

Referred to Tribunal

36. (1) Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the Tribunal.

Notice of decision not to refer to Tribunal

(2) Where the Commission decides to not refer the subject-matter of a complaint to the Tribunal, it shall advise the complainant and the person complained against in writing of the decision and the reasons therefor and inform the complainant of the procedure under section 37 for having the decision reconsidered.

Reconsideration

37. (1) Within a period of fifteen days of the date of mailing the decision and reasons therefor mentioned in subsection 34 (2) or subsection 36 (2), or such longer period as the Commission may for special reasons allow, a complainant may request the Commission to reconsider its decision by filing an application for reconsideration containing a concise statement of the material facts upon which the application is based.

Notice of application

(2) Upon receipt of an application for reconsideration the Commission shall as soon as is practicable notify the person complained against of the application and afford the person an opportunity to make written submissions with respect thereto within such time as the Commission specifies.

Decision

(3) Every decision of the Commission on reconsideration together with the reasons therefor shall be recorded in writing and promptly communicated to the complainant and the person complained against and the decision shall be final.

Orders of Tribunals

41. (1) Where the Tribunal, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Tribunal may, by order,

direct the party to do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and

[reference to monetary awards omitted]

Act binds Crown

47. (1) This Act binds the Crown and every agency of the Crown.

Act has primacy over other Acts

(2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.

The Handling of the Complaint

[6] In accordance with its practice, the Commission notified the respondents of the complaint and received submissions from them and from the complainant in reply. In its material, the respondent requested that the Commission exercise its discretion under s. 34 of the Code to determine that the complaint ought to be dealt with under the Building Code Act rather than the Code, that the complaint lacked legal sufficiency and that the complaint was beyond the jurisdiction of the Commission. On February 23, 2004, the Commission decided not to exercise its s. 34 discretion and permitted the complaint to proceed through normal processing. Efforts were made to resolve the case by conciliation, but they were not successful. The Commission staff (“Staff”) then prepared a Case Analysis for the use of the Commission in determining whether the complaint should be referred to the Tribunal. The Case Analysis was completed and sent to the parties on January 31, 2005. The applicant responded on February 21, 2005 protesting against the Staff recommendation that the complaint not be referred to the Tribunal.

[7] On March 29, 2005, the Commission, pursuant to s. 36 (2) of the Code, decided not to refer the complaint to the Tribunal. The full text of the decision is as follows:

Pursuant to subsection 36(2) of the Human Rights Code, the Commission has decided not to refer the subject matter of this complaint to the Human Rights Tribunal of Ontario for the following reasons:

(1) There is insufficient evidence to indicate that the complainant was subjected to discrimination in services because of disability.

(2) The evidence does not indicate that the complainant was denied the provision of a service within the meaning of the Human Rights Code. The complainant does not allege any particular exercise of a statutory or regulatory power that can be investigated or considered.

For the above reasons, the Commission is of the view that the subject matter of this complaint not be referred to the Human Rights Tribunal of Ontario because the procedure is neither appropriate nor warranted by the evidence.

[8] The applicant objected and applied for reconsideration on the basis of further submissions. However the decision was upheld on re-consideration pursuant to s. 37 of the Code. The decision stated that the Commission remained of the views expressed in the first decision.

This Application

[9] The applicant seeks an order quashing the two decisions at issue and an order in the nature of mandamus requiring the Commission to refer the complaint to the Tribunal. He also served a Notice of Constitutional Question dated July 13, 2006. On receipt of this Notice, Ms. Chace-Hall of the Constitutional Law Branch of the Ministry of the Attorney General corresponded with counsel for the applicant as to whether the constitutional validity of the Building Code was properly before this court on this application. This correspondence resulted in common ground: the constitutional validity of the Ontario Building Code is not before this court nor does the applicant seek a remedy under s. 24 of the Charter on this application. Nevertheless, the applicant is entitled to refer to constitutional cases in support of his position that the Commission erred in deciding not to refer the complaint to the Tribunal.

[10] Mr. Basu, appearing for the Attorney General on the constitutional issues only, submitted that there was no issue involving the Charter in this litigation; the question is whether the Commission should have referred to the Tribunal the issue of whether the Building Code is in violation of the Code. He submitted that, while there is a certain degree of convergence between the cases on s. 15 of the Charter and those on Human Rights Codes, it was a convergence of principle and not a blurring of the real distinctions between the two instruments. While Charter jurisprudence is relevant to the issue of Building Code compliance with the Code, the Charter itself is not. He urged the court not to get into issues of compliance with the Charter as it was not before us and there was no s. 15 record nor a s. 1 record in the material. In particular, he mentioned the reference in the applicant’s materials to Tranchemontagne[^1] that the applicant appears to think shows that the Tribunal could, if the complaint were referred to it, consider whether the Building Code complies with the Charter. He submitted that the Tribunal could only consider the Building Code and the Code.

[11] In response to these submissions, Mr. Simser said that the constitutional cases were provided as background but there were no constitutional issues before us for decision and so he agreed with Mr. Basu.

The Standard of Review

[12] This Court has repeatedly held that, with respect to the Commission’s discretionary decisions under ss. 34, 36 and 37 of the Code, the standard of review is patent unreasonableness[^2]. The Commission is not under a public duty to proceed with every complaint; it has a discretion which it may exercise depending upon the circumstances.[^3]

[13] In McLean[^4], this Court explained how the patent unreasonableness standard is applied to the Commission’s decisions under these sections of the Code:

18. What does the phrase "patently unreasonable" mean? In Canada (Attorney General) v. Public Service Alliance, 1993 125 (SCC), [1993] 1 S.C.R. 941, Cory J. said:

"A patently unreasonable decision is one that is "evidently not in accordance with reason" or "clearly irrational".

19. This Court has also held in Hassaram v. Ontario (Human Rights Commission), [2005] O.J. No. 29, at paragraph 29 that "sections 34, 36 and 37 of the Code give the Commission discretionary powers that the Court should not interfere with or reverse a decision because it might have arrived at a different conclusion."

20. The application of the patently unreasonableness standard to the Commission's discretionary decisions reflects the deference that is owed to the Commission with respect to matters pertaining to its role and function under the Code, having regard to the Commission's well recognized expertise in fact-finding and processing complaints under the Code.

[14] In Losenno v. Ontario Human Rights Commission[^5], the Court of Appeal confirmed that the standard of review in dealing with decisions of the Commission under ss. 36 and 37 is one of patent unreasonableness. In exercising its jurisdiction under those sections to refer or not to refer a complaint to the Tribunal, the Commission is acting within its core jurisdiction and the standard is patent unreasonableness[^6].

[15] The applicant sought to distinguish Losenno because it dealt with whether a settlement offer could be taken into account. In my view, Losenno cannot be disposed of so neatly and is directly on point. The sections are gatekeeper sections and decisions as to referral engage the Commission’s core expertise. In Gismondi[^7], Blair R.S.J. wrote:

The Commission, whose relative expertise in fact finding and processing complaints in the human rights context is well-recognized, is engaging in a screening function, which is more administrative than quasi-judicial in nature.

[16] In Losenno, Rosenberg J.A. recognized that: “Some of the issues the Commission must consider in deciding whether to refer a complaint to a board of inquiry are of a specialized nature, especially in disability cases and in considering the question of accommodation.”

[17] The applicant submitted that the standard of review ought to be correctness because the Commission was deciding on issues such as the meaning of “services” in the Code and whether a factual situation was needed for the Tribunal to investigate. As to the first point, the submission misunderstands what the Commission was doing in this decision. In my view, it did not decide that law-making by amending the Building Code was not a service; it decided not to send that issue to the Tribunal. I will return to this point later. As to the latter point, deciding whether a fact situation exists which ought to be investigated is the very heart of the expertise of the Commission. In addition, the Commission is administering a very complex organization and is required to make administrative choices as to the matters on which it will expend its resources. I conclude that the standard of review is patent unreasonableness.

Analysis

[18] The central issue before the court is whether the Commission can be required to send the complaint to the Tribunal when it has exercised its discretion not to do so. The applicant appeared to believe that the Commission could not refuse to send to the Tribunal any case that had passed the test of s. 34. But the screening under s. 34 and that under s. 36 are entirely different functions. The s. 36 function is more broadly discretionary and the discretion is not subject to a correctness review, but to a reasonableness review. It is not necessarily unreasonable for the Commission to decide not to send even a good strong case to the Tribunal. The issue is whether the procedure is appropriate and the evidence warrants it. This case is an example of a case where the procedure was reasonably found inappropriate in the particular circumstances described below.

[19] Part of the Commission’s mandate is to make recommendations as to legislation that will bring that legislation into compliance with the Code. The applicant pressed the point that the Commission had previously advocated for recognizing RWC technology in future amendments to the Building Code, yet was now declining to refer the same matter to the Tribunal. But this cuts both ways: the Commission has already spoken on the subject and is entitled to allocate its resources bearing that in mind. It is not obvious that the referral procedure is appropriate where the Commission has already decided the issue sought to be referred. The present case is a gateway decision and not a substantive one. The Commission does not decide that the applicant’s desire for the amendments he seeks is unfounded, nor does it decide that law-making is or is not a “service”; it only decides not to refer the complaint to the Tribunal. As well, as counsel for the Commission points out in the factum[^8], these respondents did not enact the underinclusive legislation, and those who did are not parties. There is no claim by the applicant that a particular permit ought not to have been issued or the like which would bring a specific fact situation before the Commission which the Tribunal could investigate. The Commission supports the complainant’s position, but it has the discretion to determine whether the case is one where the procedure of referral to the Tribunal is appropriate and warranted by the evidence. Even where these factors exist, the referral remains discretionary: the Commission “may” refer the complaint.

[20] Returning to the point as to the meaning of “services”, the Commission decision did not define the term as used in the Code. It spoke only to this particular case, stating, in paragraph 2, that the evidence did not indicate that the complainant was denied a service within the meaning of the Code; he did not allege any particular exercise of a statutory or regulatory power that could be investigated or considered. The complainant focuses only on the first portion, but one must take paragraph 2 as a whole: the evidence does not disclose any occasion on which this complainant was denied a service within the meaning of the Code. The evidence discloses no occasion of denial at all, so that there is no inference that the Commission acted upon some definition of services.

[21] It is also necessary to examine the Commission’s somewhat terse decision in the light of the Case Analysis which sets out the considerations involved. Staff makes it clear that one of the issues that would be before the Tribunal is whether law-making constitutes a service within the Code. Staff does not attempt an answer to the question, but identifies it as an issue to be determined by the Tribunal if the matter is referred to it. In paragraphs 28 and 29, Staff refers to the Commission’s position in its statement to the respondent Ministry on desired amendments to the Building Code[^9]: that the Code’s primacy over the Building Code means that a member of the public could challenge the Building Code. Staff observes that in the present case there is no evidence of a specific instance in which the present complainant was denied a service by the present respondents. The case put forward is only that the lack of a requirement for RWC in the Building Code should be remedied; and that case raises the question of whether law-making can be regarded as a service.

[22] At paragraphs 30 to 32 of its Analysis, Staff considers the difference between the passage of under-inclusive legislation, which may not constitute a service, and the acts done pursuant to the legislation such as the issuance of a building permit, which could be a service. If that is so, then the issuance of a specific building permit allowing the construction of an inaccessible building could be in breach of the Code. The Tribunal could investigate that kind of situation. In the present case, there was no factual situation that could be investigated. Staff does not suggest any answer to the question of what is a service.

[23] At paragraph 33, Staff notes that the respondent Ministry has committed to consider the amendments proposed by the Commission in its presentation to the Ministry, including the RWC amendment sought by the Commission and the complainant.

[24] Finally at paragraph 34, Staff observes that it is not clear that the respondent Ministry would be the party responsible for any discrimination that might be found (presumably by the Tribunal) to have been suffered by the complainant.

[25] In summary, Staff provides several reasons for its recommendation that the matter not be referred to the Tribunal:

• the Commission has already supported the amendment which the complainant seeks;
• there is no incident or occurrence requiring fact-finding by the Tribunal;
• the respondent has already committed to study the proposed amendment;
• there is doubt whether the law-making function is properly regarded as a service within the meaning of the Code; is an under-inclusive statute a failure to provide a service?
• It is not clear that the respondent Ministry is the proper party responsible for any discrimination which might be identified.

[26] Having regard to the Case Analysis, the Commission’s brief endorsement does not turn on deciding whether the word ‘services’ can include the failure to pass the legislation sought by the complainant. In my view, there is no decision on the meaning of the word and therefore no question of law requiring the review of the decisions on a correctness basis.

[27] There is a further point in considering the reasonableness of the Commission’s decisions. The applicant seeks referral to the Tribunal in the hope that the Tribunal will require the amendment to be made or simply read the necessary language into the Building Code as if the amendment had been made. If the Tribunal does not have these powers, there is no utility in such a referral. For the reasons that follow, I am of the opinion that the Tribunal does not have the power to do as the applicant wishes.

[28] The applicant submits that in offering the service to the public of issuing building permits under the authority of the Building Code, the Province has undertaken the obligation, pursuant to its own legislation, the Code, which expressly binds the Crown and prevails over other Provincial legislation, to ensure that the Building Code does not authorize the issuance of a building permit which enables a person to construct a building which discriminates against persons with disabilities. The applicant submitted that underinclusiveness of legislation constitutes a legislative act for the purposes of a human rights review: Vriend v Alberta.[^10] In his Supplementary Factum, the applicant repeated his reliance on Vriend and also referred to Battlefords v Gibbs.[^11] Certainly Vriend, in particular, makes it clear that underinclusiveness can, and failure to legislate at all may, offend the Charter, and lead, as in that case, to the reading in to the prohibited ground of discrimination an additional factor applicable to the applicants. These cases are of limited assistance. Vriend is a Charter case, with a different constitutional status. No one argues that the Building Code is not underinclusive; as noted, the Commission supports that view in its discussions with the Ministry. So far as the power of the Commission and the Tribunal to remedy underinclusiveness is concerned, none of these cases supports the court going as far as the applicant would have it go in this case.

[29] The applicant relied heavily upon the decision of the Honourable Peter Cory, sitting as the Tribunal, in Braithwaite[^12], where the issue was whether an inquest was a service within the Code, and if so, whether s. 10 of the Coroners Act[^13] contravened s. 1 of the Code. Section 10(1) provided for compulsory inquests for prisoners who died in police custody or in penal institutions, but under s. 10(2) an inquest was discretionary where the deceased was an involuntary patient in a designated psychiatric facility. The applicants sought to require an inquest into the deaths of their relatives who had been involuntary patients.

[30] It was submitted that an inquest was not a benefit or service to an individual. The Tribunal disagreed, finding that an inquest provides a benefit. There was evidence as to the importance to the family of hearing the truth about the death of their family member. The Tribunal discussed the many acts that have been held to be a service, ranging from a Mayor’s Proclamation to the provision of policing. None of the examples given are in the same category as the request before us: the use of the Code as justification for reading in of language to enlarge the requirements of the Building Code: in short, the de facto passage of new legislation. The Tribunal in Braithwaite also discussed Tranchemontagne[^14], to which the applicant referred us, and concluded that:

For the reasons given in [Tranchemontagne], it is apparent that the Tribunal does not have jurisdiction to set aside legislation on the Constitutional grounds that it offends the Canadian Charter of Rights and Freedoms, supra. However it is within the jurisdiction of the Tribunal to say that, for the purpose of this case, subsection 10(2) of the Coroners Act will not be applied in this case. The result of this will be, that Coroners Inquests will be directed into the deaths of [the deceased] and the discretion of the Chief Coroner will not be exercised.

[31] This decision demonstrates both the wide jurisdiction of the Tribunal and its limits. Not being a fully constitutional document, the Code stops short of setting aside legislation, but the Tribunal can exercise the power specifically given to it to apply the Code as prevailing over the actual enactment in the Coroners Act, where the latter has a discriminatory effect. However, the Code does not authorize the addition to legislation of words that are not there in order to bring the Building Code into compliance with the Code.

[32] The Tranchemontagne decision[^15] draws a distinction of importance. Bastarache J. observes at paragraph 31, speaking of the Code:

The Code emanates from the Ontario legislature. As I will elaborate below, it is one thing to preclude a statutory tribunal from invalidating legislation enacted by the legislature that created it. It is completely different to preclude that body from applying legislation enacted by that legislature in order to resolve apparent conflicts between statutes.

[33] Continuing the analysis at paragraph 36, Bastarache J. said:

Thus whether a provision is constitutionally permissible and whether it is consistent with the Code are two separate questions involving two different kinds of scrutiny. When a tribunal or court applies s. 47 of the Code to render another law inapplicable, it is not “going behind “ that law to consider its validity, as it would be if it engaged in the two activities denied the SBT by s. 67(2) of the OWA. It is not declaring that the legislature was wrong to enact it in the first place. Rather it is simply applying the tie-breaker supplied by, and amended according to the desires of, the legislature itself. The difference between s.47 of the Code and s. 52 of the Constitution Act, 1982, is therefore the difference between following legislative intent and overturning legislative intent.

[34] These passages highlight the distinction in the present case between the Tribunal ruling that an existing provision of the Building Code cannot prevail over the Code, on the one hand, and the Tribunal purporting to add words to the Building Code that were not put there by the legislature, on the other hand. In the first case, the Tribunal is following the direction of the legislature in applying the supremacy of the Code over the language of the other Act. In the latter case, the Tribunal would be overturning the legislative intent not to place those words in the Building Code, a function which only the Charter can authorize.

[35] This conclusion is consistent with Newfoundland and Labrador[^16] where at para. 38, the Newfoundland Court of Appeal held that the Board of Inquiry had “no power to read down or read in legislative changes to ensure compliance with the Human Rights Code.” It is also consistent with the same conclusion reached by the Manitoba Court of Appeal in Gale Estate[^17], that Human Rights Acts: “were never intended to address or provide a mechanism to deal with allegedly discriminatory provincial legislation”. Both cases dealt with the effect of “primacy clauses” similar to s. 47 of the Code.

[36] The Code is not a constitutional document. It has been described as quasi-constitutional, and as more important than all others (save for the constitutional laws[^18]), but it falls short of being a constitutional document entitling the Tribunal or the Courts to disallow legislation or require changes to it. The farthest that the Code goes in this direction is s. 47 (2) which provides:

Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.

[37] The language of the last clause of this section indicates that the Legislature has reserved to itself, and to those it empowers to make regulations, the right to decide the relationship between the Code and particular legislation. This is incompatible with any right in the Tribunal to make that decision.

[38] Section 9 of the Code prohibits any “person” from infringing a right under Part I of the Code. That is a prohibition directed to conduct just as s. 47 (2) is directed to conduct. There is no person before the Court or the Commission whose conduct is in question; the complaint is that the law itself infringes the Code. The remedy sought is that the Commission send the complaint to the Tribunal so that the Tribunal can require the law to be changed. For the above reasons, this objective can only be achieved through a Charter challenge, for only the Charter, as a part of the constitution, enables the court to strike down legislation or to read in provisions to make the law as written comply. It is one thing to find that the Code prevails over a discriminatory provision in another provincial Act or Regulation, but it is an entirely different matter to read in provisions that are not there. The Legislature is sovereign and it would take clear language to establish any tribunal with authority to add language to what the Legislature has done. The Charter is such a document, but the Code is not. To read the Code as the applicant asks is to grant to the Tribunal the power to amend legislation to bring it into conformity with the Code. I cannot find that power in this language.

Summary and Disposition

[39] Reviewing the Commission’s decisions on a reasonableness basis, there is no doubt that the considerations in the Case Analysis amply support the discretionary refusal to refer the complaint to the Tribunal under s. 36 and the refusal to alter that decision on the s. 37 application. The above analysis indicates that there would be little utility in a referral, just to have the Tribunal repeat the position of the Commission that the amendment the applicant seeks should be made.

[40] The Commission was engaged in a gate-keeping function, with both administrative and judicial content. There are no facts about RWC requiring an investigation by the Tribunal, since the facts relevant to the applicant’s proposed change in the Building Code are all known. There was no incident in which the complainant was denied services and therefore no facts to investigate. The Commission has already determined that the amendments ought to be made and has made representations to those managing the Building Code to that effect. The actual amendment sought by the applicant is not within the power of the Tribunal to grant, although it might make a declaration with persuasive effect. Indeed, the Commission has already done that. The decision not to refer the complaint to the Tribunal was eminently reasonable. I would dismiss the application for judicial review. As the parties have agreed on the costs, no costs order is necessary.

Lane J.

Ground J.

Aitken J.

DATE: December 11, 2006

[^1]: Tranchemontagne v. Ontario (Director Disability Support), 2006 SCC 14, [2006] 1 S.C.R. 513. [^2]: Gismondi v. Ontario (Human Rights Commission (2003), 2003 21371 (ON SCDC), 169 O.A.C. 62 at paras. 23-25 (Div. Ct.); Hassaram v. Ontario (Human Rights Commission), [2005] O.J. No. 29 at para. 29 (Div. Ct.); McLean v. Ontario (Human Rights Commission), [2006] O.J. No. 1216 at para. 18 (Div. Ct.) [McLean]. [^3]: Brome v. O.H.R.C., 1999 15060 (ON SC), [1999] O.J. No. 760 (Div. Ct.); leave to appeal denied [1999] O.J.No. 2537 (C.A.) [^4]: Footnote 2, supra. [^5]: (2004), 2004 10123 (ON SCDC), 242 D.L.R. (4th) 550 (Div. Ct.), aff’d (2005), 2005 36441 (ON CA), 78 O.R. (3d) 161 (C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 531. [^6]: Losenno, supra at para. 9 (C.A.), Rosenberg J.A. [^7]: Gismondi, supra at para. 24. [^8]: Factum of the Commission at paras. 8-9. [^9]: Case Analysis Report; Application Record p. 36 at p. 40. [^10]: 1998 816 (SCC), [1998] 1 S.C.R 493 at paras. 50 to 64. [^11]: 1996 187 (SCC), [1996] 3 S.C.R. 566. [^12]: Braithwaite v. Ontario (Chief Coroner), [2005] O.H.R.T.D. No. 31 (interim decision); [2006] O.H.R.T.D. No. 15. [^13]: R.S.O. 1990, c. C.37 [^14]: Supra, note 1 [^15]: Supra, note 1. [^16]: Newfoundland and Labrador (Human Rights Commission) v. Workplace Health, Safety and Compensation Commission (2005), 2005 NLCA 61, 259 D.L.R. (4th) 654 (C.A.) [^17]: Gale Estate v. Hominick (1997), 1997 2561 (MB CA), 147 D.L.R. (4th) 53 (C.A.) para. 15; leave to appeal refused: 150 D.L.R. (4th) vii. [^18]: See University of British Columbia v. Berg (1993), 1993 89 (SCC), 102 D.L.R. (4th) 665 at 677-8 (S.C.C.); Insurance Corp. of British Columbia v. Heerspink (1982), 1982 27 (SCC), 137 D.L.R. (3d) 219 at 229 (S.C.C.).