Citation and Court Information
CITATION: 1147335 Ontario Inc., o/a Weston Property Management v. Torrejon, 2012 ONSC 1978
DIVISIONAL COURT FILE NO.: 406/10
DATE: 20120327
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KENT, JENNINGS AND SANDERSON JJ.
BETWEEN:
1147335 ONTARIO INC. o/a WESTON PROPERTY MANAGEMENT Applicant
– and –
ELSA TORREJON Respondent
Leroy A. Bleta, for the Applicant
Bruce Best and Michelle Mulgrave, for the Respondent, Elsa Torrejon
Margaret Leighton, for the Human Rights Tribunal of Ontario
HEARD at Toronto: March 27, 2012
Oral Reasons for Judgment
JENNINGS J. (orally)
[1] In a decision dated April 29, 2010, the Human Rights Tribunal of Ontario (“the Tribunal”) found the applicant had discriminated against the respondent on the basis of disability by terminating her after she had informed the applicant that she needed medical leave to receive treatment for her just diagnosed breast cancer.
[2] In a subsequent decision on remedy on July 12, 2010, the Tribunal awarded the respondent $20,000 in general damages for injury to dignity, feelings and self respect and $2,640 in special damages for loss of employment income.
[3] In its application for judicial review the applicant seeks review of only the remedy decision of July 12, 2010. However, its factum refers almost to exclusively to the findings of discrimination that lead to the April 29, 2010 decision. Counsel advised us that he intended to seek review of the findings of both orders. We accordingly agreed to treat the application as seeking review of the both decisions to which I have referred.
[4] The applicant filed, without leave, an affidavit of the two witnesses it called upon the two hearings. There is nothing in the affidavit that would permit us to overlook the jurisprudence that holds that only in rare cases, and for extremely limited purposes, will affidavit evidence be admitted on judicial review applications. Accordingly, we did not refer to the affidavit.
[5] The applicant does not address the standard of review. We accept the submissions of the Tribunal and the respondent that it is reasonableness, with high deference accorded to the Tribunal on decisions within its area of expertise as held by this Court in frequent decisions including Shaw v. Phipps, 2010 ONSC 3884 (Div. Ct.).
[6] In argument, counsel for the applicant accepted the reasonableness standard.
[7] In the April 29, 2010 decision, the Tribunal found as a fact that the respondent did not resign her position. In arriving at that conclusion, it preferred the evidence of the respondent to that of the two witnesses called by the applicant. The Tribunal must hear and weigh evidence. It has the power to accept some evidence and reject other evidence. There was ample evidence that it accepted to support the Tribunal’s conclusion that the respondent did not resign. That conclusion was reasonable.
[8] With respect to damages, the applicant’s chief complaint is that the psychiatric evidence of the effect upon the respondent of the termination of her employment was contained in two psychiatric reports upon which the author was not cross-examined. There is simply no merit to this complaint. The reports were filed with the applicant’s consent. The remedy hearing was conducted by telephone conference call to which the applicant consented. The applicant made no effort to cross examine the psychiatrist either before or during the hearing. There was no denial of procedural fairness.
[9] The parties agreed upon the amount of salary that was lost to the respondent.
[10] The general damages are towards the high end of the range. The assessment of damages is at the very heart of the expertise of the Tribunal. An extremely high degree of deference is owed (see ADGA Group Consultants Inc. v. Lane, 91 O.R. (3d) 649 (Div. Ct.)).
[11] In paragraphs 24 and 25 of its reasons, the Tribunal considered the relevant factors in assessing the quantum of general damages. We see no error in principle in that assessment.
[12] The damages assessed fall within the range, albeit near the top of what might reasonably be expected on the evidence the Tribunal heard. There are no grounds upon which we can interfere. Accordingly, the application must be dismissed.
COSTS
KENT J.
[13] Clearly, this is a case where the respondent is entitled to costs and counsel for the respondent has provided a costs outline and seeks costs in excess of $20,000. The panel is concerned that the issues, while important, must be addressed in a proportionate manner when one considers costs. For this reason, we are not prepared to accept the total sought by counsel for the respondent, considering the proportionality as we are required to do by the Court of Appeal decision in Boucher. We have arrived at a number and we fix costs in the amount of $7,000 all inclusive, to be paid by the applicant to the respondent.
JENNINGS J.
KENT J.
SANDERSON J.
Date of Reasons for Judgment: March 27, 2012
Date of Release: March 30, 2012
CITATION: 1147335 Ontario Inc. o/a Weston Property Management v. Torrejon, 2012 ONSC 1978
DIVISIONAL COURT FILE NO.: 406/10
DATE: 20120327
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KENT, JENNINGS AND SANDERSON JJ.
BETWEEN:
1147335 ONTARIO INC. o/a WESTON PROPERTY MANAGEMENT Applicant
– and –
ELSA TORREJON Respondent
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: March 27, 2012
Date of Release: March 30, 2012