CITATION: Fortune v. Ontario Human Rights Commission, 2011 ONSC 2161
DIVISIONAL COURT FILE NO.: 129/09
DATE: 20110405
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON, SWINTON AND LOW JJ.
BETWEEN:
FERDINAND FORTUNE Applicant
– and –
ONTARIO HUMAN RIGHTS COMMISSION, WORKPLACE SAFETY AND INSURANCE BOARD, C.U.P.E. LOCAL 1750, TRISH BLANCHARD, PAUL GILKINSON and LOU SMARGIASSI Respondents
Ernest J. Guiste, for the Applicant
Cathy Pike, for the Respondent, Ontario Human Rights Commission Jean-Denis Bélec, for the Respondents, WSIB, Trish Blanchard, Paul Gilkinson and Lou Smargiassi James K. McDonald, for the Respondent, C.U.P.E. Local 1750
HEARD at Toronto: April 5, 2011
SWINTON J. (orallY)
[1] The applicant seeks judicial review of a decision dated September 23, 2008 of the Ontario Human Rights Commission (“the Commission”) declining to refer his complaint against the Workplace Safety and Insurance Board, his employer, and against his Union, CUPE, Local 1750, to the Human Rights Tribunal. On December 16, 2008, the Commission dismissed a request for reconsideration.
[2] The applicant claims he was denied natural justice because the Commission failed to interview five to seven witnesses who might support his claim and, in the reconsideration decision, failed to consider information that bolstered his claim of systemic discrimination.
[3] The Commission refused to refer the complaint because there was insufficient evidence to support the complaint of discrimination on the basis of race, colour or ethnic origin.
[4] In the Case Analysis provided to the applicant, he had full notice of the facts and arguments upon which the Commission relied in making its decision. He had ample opportunity to provide the Commission with whatever information he believed to be relevant in his response and in his application for reconsideration.
[5] With the exception of Mr. Ramdewar, the witnesses were not put forward as persons who had direct knowledge of the job competition or the Union’s handling of the applicant’s complaint about the job competition. It was not a breach of procedural fairness for the Commission to decline to interview witnesses who could not reasonably be expected to possess relevant evidence.
[6] With respect to Mr. Ramdewar, there was no breach of procedural fairness in failing to interview him. The investigator attempted to locate Mr. Ramdewar but was not successful. In any event, the evidence before the Commission established that Union officials did in fact examine the job competition process and perform a comparative analysis. As well, the Commission investigator performed a comparative analysis of the applicant’s test scores and those of other candidates.
[7] While the applicant argues that the Commission failed to consider his evidence of systemic discrimination at the time of reconsideration, he provided no facts to support his allegation.
[8] The applicant received an adjusted grade of 63 in the competition, 12 points below the required threshold. His identity on the written part was not known to the markers. The oral part of the interview was scripted and the answers recorded to promote objectivity. Therefore, the Commission’s decision that there was insufficient evidence to support the complaint of discrimination was reasonable in the circumstances.
[9] The application for judicial review is dismissed.
COSTS
J. WILSON J.
[10] For oral reasons given today, the application for judicial review is dismissed.
[11] It is not appropriate for this Court to make any recommendation with respect to any future proceeding before the Tribunal.
[12] The request by WSIB for costs is dismissed, as no request for costs was made in their factum.
[13] In our view, it is not appropriate to award costs to the Ontario Human Rights Commission given their role of neutrality in a proceeding such as this.
[14] Costs fixed payable to CUPE 1750 in the amount of $500, plus HST.
SWINTON J.
J. WILSON J.
LOW J.
Date of Reasons for Judgment: April 5, 2011
Date of Release: April 20, 2011
CITATION: Fortune v. Ontario Human Rights Commission, 2011 ONSC 2161
DIVISIONAL COURT FILE NO.: 129/09
DATE: 20110405
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON, SWINTON AND LOW JJ.
BETWEEN:
FERDINAND FORTUNE Applicant
– and –
ONTARIO HUMAN RIGHTS COMMISSION, WORKPLACE SAFETY AND INSURANCE BOARD, C.U.P.E. LOCAL 1750, TRISH BLANCHARD, PAUL GILKINSON and LOU SMARGIASSI Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: April 5, 2011
Date of Release: April 20, 2011