COURT FILE NO.: 269/07
DATE: 20080219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, CUMMING AND ECHLIN JJ.
B E T W E E N:
ANTHONY COOTE
Applicant
- and -
ZELLERS, HBC, BOARD OF DIRECTORS, BILL WARD, CHRIS LUCKY, GORD CAMPBELL, SEAN MACDONALD, THOMAS HAIG, BRENDA LANG, DEBBIE FORD, LINA BARBOSA, GARY KLESSEN, VICE PRESIDENT OF HUMAN RESOURCES, all persons at the retreat, et al.
Respondents
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ONTARIO HUMAN RIGHTS COMMISSION, BARBARS HALL, KEN NORTON, ROXANNE KALIMOOTOO, NANCY AUSTIN, NEIL EDWARDS, PART TIME COMMISSIONERS, DINA WAIK, SHANNON LEE-MEADOWS et al.
Respondents
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HER MAJESTY THE QUEEN, MR. MICHAEL BRYANT, PREMIER MCGUINTY, DEPUTY ATTORNEY GENERAL (MURRAY SEGAL), PROVINCE OF ONTARIO et al.
Respondents
Counsel:
In Person
Rachel A. Turnpenney, for the Respondents, Zellers Inc. and HBC et al.
Sharon Ffolkes Abrahams, for the Ontario Human Rights Commission
Lynne McArdle, for the Respondents, Her Majesty the Queen et al.
HEARD at Toronto: February 19, 2008
CUMMING J.: (Orally)
BACKGROUND TO THE APPLICANT’S MOTION TO SET ASIDE THE DECISION OF HIMEL J., DATED OCTOBER 30, 2007 WHICH STRUCK SOME OF THE RESPONDENTS FROM THE APPLICANT’S APPLICATION FOR JUDICIAL REVIEW AND WHICH STRUCK HIS AFFIDAVIT AND RELATED MATERIAL
[1] On March 8, 2004, the self-represented applicant, Anthony Coote, filed a complaint with the Ontario Human Rights Commission (“Commission”) against his former employer, the respondent Zellers Inc., alleging that he had been treated unequally on the basis of race, ancestry or colour and that his right to be free from reprisal had been infringed in contravention of the Ontario Human Rights Code (“Code”).
[2] The Commission found that there was insufficient evidence to indicate the applicant was treated unequally or to indicate that a reprisal occurred. Consequentially, the matter was not referred to a Human Rights Tribunal for a hearing.
[3] The applicant sought reconsideration of the decision. The Commission upheld its decision of the first instance.
[4] The applicant then launched an application for judicial review of the decisions of the Commission dismissing his complaint against his former employer under sections 36 and 37 of the Code. Her Majesty the Queen, the Commission and other respondents brought motions to strike portions of the applicant’s claim, his affidavit, documents referred to in the application record and certain named respondents from the application record. Himel J. granted the Commission’s request. The applicant now moves for an order before this panel of the Divisional Court to set aside the decision of Himel J.
THE DECISION APPEALED FROM
[5] There are four issues germane to this motion by the applicant. They relate to whether Himel J. was correct when she granted the respondent Commission’s and Crown’s motions.
(i) Striking a number of respondents as parties to the application for judicial review;
(ii) Striking documents from the applicant’s application record;
(iii) Striking out the affidavit of the applicant affirmed July 3, 2007; and
(iv) Striking all claims, except the claim for setting aside the decision of the Commission.
[6] Pursuant to subsection 21(5) of the Courts of Justice Act, a panel of the Divisional Court has the power to set aside or vary an order of a single judge of the Divisional Court made on a motion.
THE FIRST ISSUE – THE STRIKING OF A NUMBER OF RESPONDENTS AS PARTIES TO THE APPLICATION FOR JUDICIAL REVIEW
[7] Himel J. granted the motions with respect to the Crown and the Commission employee respondents. She quashed the application for judicial review against them on the basis that they are not proper parties to the application. The Crown respondents and the employees respondents of the Commission were not parties to the complaints before the Commission. The Commission was the sole decision maker in each decision-making instance. The Commission is the sole statutory body having the authority to exercise a statutory power under the Ontario Human Rights Code.
[8] The Court of Appeal has ruled that the Divisional Court is a statutory Court and has only the jurisdiction conferred upon it by the Judicial Review Procedure Act. Such powers come from s.2 of that Act.
[9] The applicant does not seek any relief against the Crowns’ and Commission employee respondents that can be granted by way of his application for judicial review.
[10] Accordingly, we find Himel J. was correct in her decision on the first issue.
THE SECOND ISSUE – STRIKING DOCUMENTS FROM THE APPLICANT’S APPLICATION RECORD
[11] In addition to filing an application for judicial review, the applicant filed an affidavit and numerous documents including correspondence, emails, statements, reports and decisions.
[12] The primary evidence upon which the Divisional Court basis its review of a tribunal’s decision, is the record that was before the tribunal. When a notice of application for judicial review is served on a tribunal, it is required to file with the court for use on the application the “record of the proceedings in which the decision was made”: s.10 Judicial Review Act.
[13] The Divisional Court has held that the record before the Court should essentially be the material that was before the Court whose decision is being reviewed.
[14] The applicant is seeking an order quashing two specific decisions of the Commission: a decision made pursuant to s.36 of the Code and the decision made pursuant to s.37 of the Code. The Commission has filed with the Court the complete record of proceedings. This encompasses the material that was before the Commission in making those two decisions. Additional documentary evidence is not admissible for the purpose of challenging the tribunal’s findings unless it was also put before the tribunal. Where the issue is not one of jurisdiction, evidence beyond the record before the tribunal should not be admitted.
[15] Affidavit evidence is not to be received in an attempt to establish that the tribunal drew incorrect inferences from the evidence before it or which is essentially argumentative and restates positions and arguments made before the tribunal.
[16] Nor is intrinsic evidence admissible on the question of whether a tribunal’s decision is patently unreasonable, being the standard of review of the exercise of discretion by the Commission. Such a question must be answered based upon the material that was before the tribunal of first instance. If not so limited, it would be open to parties to file further evidence which would result in the Court reviewing the decision based upon an extraneous record rather than the actual record before the tribunal.
[17] The Commission’s evaluation of the evidence as to whether it appears to the Commission that the evidence warrants referral to a Human Rights Tribunal is a question squarely within the Commission’s jurisdiction.
[18] In our view, and we so find, Himel J. was correct in her finding on the second issue.
THIRD ISSUE – STRIKING THE APPLICANT’S AFFIDAVIT
[19] The applicant’s affidavit material was not before the Commission when it made its decisions under the Code.
[20] Affidavit evidence contrary to the rules, is properly to be struck. The affidavit material in question opines as to whether or not evidence supports the referral of the applicant’s complaint to a tribunal and asserts legal argument and allegations on controversial matters in dispute between the parties.
[21] The affidavit material also contain statements of information and belief with respect to facts that are contentious, contrary to Rule 39.01(5) of the Rules of Civil Procedure.
[22] Affidavit evidence which is essentially argumentative and amounts to a restatement with elaboration of the positions and arguments made before the administrative tribunal is not properly permitted before the Divisional Court on an application for judicial review.
[23] In our view, and we so find, Himel J. was correct when she struck the applicant’s affidavit material.
FOURTH ISSUE – STRIKING ALL CLAIMS EXCEPT THE CLAIM FOR JUDICIAL REVIEW
[24] The applicant has sought remedies that are not available by way of judicial review. The applicant seeks damages from the Commission and Commission staff amongst other legal and non-legal remedies that are outside of the jurisdiction of the Divisional Court on judicial review.
[25] The applicant also seeks judicial review of the investigator’s conduct as opposed to the Commission’s decision.
[26] There is no jurisdiction to seek a judicial review of the investigation itself as opposed to the Commission’s decisions as the investigation is not in the nature of the exercise of a statutory power of decision. Indeed, the Commission need not follow the recommendation of the investigating officer in making its decision regarding referral to a tribunal.
[27] Further, the applicant seeks to review Bill 107 amending the Ontario Human Rights Code as well as the repeal of the Employment Equity Act. The Divisional Court is without jurisdiction to consider these issues on the judicial review in this matter.
[28] In our view, and we so find, Himel J. is correct in her finding on the fourth issue.
[29] The applicant alleges there were factual, evidentiary, procedural, jurisdictional, constitutional and legal irregularities and errors on the part of Himel J. in making her decision. We find there is no merit to these allegations.
[30] It is also implicit to her reasons for decision that she dismissed the applicant’s own motion before her which, in our view, was in substance a defending response to the motions of the Crown and the Commission.
DISPOSITION
[31] For the reasons given, the motion of the applicant to set aside the decision of Himel J. and for other relief as referred to in his factum, is dismissed.
COSTS
[32] Costs should normally follow the event.
[33] We see no good reason in the instant situation to depart from this principle.
[34] The successful parties seek very modest costs. The Ontario Human Rights Commission seeks $1,000 costs and the Crown seeks $1,000 costs.
[35] The applicant seeks costs himself in the amount of $3,000.
[36] In our view, costs are properly awarded to the successful parties. We award costs to the Ontario Human Rights Commission in the amount of $1,000 inclusive of GST and all disbursements. We award costs to the Crown in the amount of $1,000 inclusive of GST and all disbursements. These costs are payable within 30 days.
FERRIER J.
[37] The motion is dismissed for oral reasons delivered this day. No costs to Zeller’s et al. For oral reasons delivered, costs to OHRC in the amount of $1,000; costs to the Crown in the amount of $1,000, payable within 30 days.
CUMMING J.
FERRIER J.
ECHLIN J.
Date of Reasons for Judgment: February 19, 2008
Date of Release: February 26, 2008
COURT FILE NO.: 269/07
DATE: 20080219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, CUMMING AND ECHLIN JJ.
B E T W E E N:
ANTHONY COOTE
Applicant
- and -
ZELLERS, HBC, BOARD OF DIRECTORS, BILL WARD, CHRIS LUCKY, GORD CAMPBELL, SEAN MACDONALD, THOMAS HAIG, BRENDA LANG, DEBBIE FORD, LINA BARBOSA, GARY KLESSEN, VICE PRESIDENT OF HUMAN RESOURCES, all persons at the retreat, et al.
Respondents
- and -
ONTARIO HUMAN RIGHTS COMMISSION et al.
Respondents
- and -
HER MAJESTY THE QUEEN et al.
Respondents
ORAL REASONS FOR JUDGMENT
CUMMING J.
Date of Reasons for Judgment: February 19, 2008
Date of Release: February 26, 2008