CITATION: Ontario Human Rights Commission v. Farris, 2012 ONSC 3876
DIVISIONAL COURT FILE NO.: 494/11
DATE: 20120629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Sachs and Wilton-Siegel JJ.
B E T W E E N:
Ontario Human Rights Commission
Applicant
- and -
Katherine Farris, Staubach Ontario Inc., Harry McKeague, Michel Leonard and the Human Rights Tribunal of Ontario
Respondents
Cathy Pike, for the Applicant
Katherine Farris on her own behalf
Arie Gaertner, for the Respondents, Harry McKeague and Michel Leonard
Brian Blumenthal, for the Respondent, the Human Rights Tribunal of Ontario
HEARD at Toronto: May 23, 2012
H. Sachs J.
Overview
[1] The Ontario Human Rights Commission (the "Commission") seeks judicial review of two decisions of the Human Rights Tribunal of Ontario (the "Tribunal") concerning a complaint by Katherine Farris against Harry McKeague, Michel Leonard and Staubach Ontario Inc. ("Staubach").
[2] The complaint arises out of Ms. Farris' employment with Staubach. Mr. McKeague and Mr. Leonard were the principals and managers of Staubach and the only shareholders of the holding company that owned Staubach. By the time the complaint was adjudicated, Staubach was inoperative.
[3] On May 20, 2011, the Tribunal found that Ms. Farris had been subjected to a poisoned work environment and discriminated against because of her sex. The Tribunal also found that Mr. McKeague and Mr. Leonard failed to recognize and address this poisoned work environment and terminated Ms. Farris' employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"). Despite these findings, the Tribunal made only Staubach, an inoperative company, liable for damages. The Tribunal declined to impose any personal liability on Mr. McKeague and Mr. Leonard.
[4] On September 29, 2011, the Tribunal dismissed the Commission's and Ms. Farris' requests for a reconsideration of its May 20, 2011 decision.
[5] For the reasons that follow, I would allow the application for judicial review. The Tribunal's decisions do not disclose any reasonable basis for its failure to find Mr. McKeague and Mr. Leonard jointly and severally liable for any of the damages that it awarded against Staubach.
The Tribunal's Factual Findings
[6] The Tribunal made a number of factual findings that are significant for the purpose of this application. None of these findings were contested on the hearing before us.
[7] Staubach is a company that represents commercial tenants in real estate transactions. Staubach hired Ms. Farris as a real estate agent in 1997. She continued to work there until her employment was terminated in 2003.
[8] Ms. Farris worked in the Toronto office of Staubach, which was managed by Mr. McKeague. Mr. Leonard managed the Montreal office.
[9] The Tribunal found that during the course of her employment, Ms. Farris became aware that she was the subject of a persistent, disparaging rumour that she was having an affair with Mr. McKeague. This rumour was discussed by most, if not all, other employees. The rumour was false and demeaning. Further, it was directly related to Ms. Farris' gender.
[10] The Tribunal also found that other agents at Staubach referred to Ms. Farris in language that disparaged her on the basis of her sex, both among themselves and in front of support staff. They called her a number of offensive terms, including "bitch""Farrasite" (a term that was meant to signal that Ms. Farris engaged in "parasitic behaviour")"psycho""crazy" and "HSC" (an acronym for "hateful spiteful cunt").
[11] According to the Tribunal, these offensive comments, when coupled with the false rumour that Ms. Farris was having an affair with Mr. McKeague, resulted in a poisoned work environment for Ms. Farris based on her gender.
[12] In the middle of 2001, Ms. Farris began to raise her concerns about her work environment with Mr. McKeague and Mr. Leonard. They responded by retaining a psychologist to investigate and make recommendations. Based on the psychologist's recommendations, Staubach implemented two "Codes of Conduct" outlining the need for respect, prohibiting any demeaning or discriminatory activity and setting out a process for resolving grievances.
[13] In spite of this action, the harassment continued. Ms. Farris continued to express her concerns. By December of 2001, Mr. McKeague and Mr. Leonard were aware that Ms. Farris was having a physical reaction to the harassment and that she was also feeling sexually intimidated.
[14] At the beginning of 2002, Ms. Farris became aware of the rumour about her affair with Mr. McKeague. She told Mr. McKeague, who disciplined the agent who had spread the rumour. In the Montreal office, Mr. Leonard raised the issue in a staff meeting and cautioned that staff should refrain from talking about the rumour. However, the rumour persisted and no further steps were taken.
[15] The Tribunal found that the failure to respond further exacerbated the poisoned nature of the environment in which Ms. Farris was operating, and that "starting in 2002 […] the workplace got worse and not better for the complainant" (Reasons of the Tribunal, May 20, 2011 at para. 184).
[16] In January of 2003 Ms. Farris requested a meeting with Mr. McKeague and Mr. Leonard. She asked that the psychologist who had previously been consulted act as a mediator. The meeting proceeded, but instead of being directed at the behaviour of those who were causing the problems for Ms. Farris, the focus became Ms. Farris herself and her alleged inappropriate behaviour. During the meeting, Mr. Leonard stated that Ms. Farris was the cause of the problem and if there wasn't a change he was ready to "write it off" implying that he was ready to let her go. The Tribunal found that this meeting "further exacerbated the poisoned work environment […]. The clear evidence about the meeting was that it was one-sided and the complainant's efforts to identify any different perspective of events, including how she was treated, were disregarded" (Reasons of the Tribunal, May 20, 2011 at para. 185).
[17] On June 18, 2003, Staubach terminated Ms. Farris' employment on a "without cause" basis. According to Mr. McKeague, Staubach had concluded that they either had to terminate Ms. Farris or let everyone else go. Given the choice, they opted to fire Ms. Farris.
[18] In November of 2004, Staubach's license to operate was revoked by the American company with whom they had a licensing agreement. Since that time Staubach has not been in operation.
History of the Proceedings Before the Tribunal
[19] Ms. Farris' complaint was filed with the Commission on December 1, 2003. Ms. Farris' complaint was against Staubach, Mr. McKeague, Mr. Leonard and several colleagues who worked with her at Staubach. In her complaint Ms. Farris alleged that: she was the subject of a poisoned work environment; management was unresponsive to her concerns; she was unfairly denied referrals (potential work opportunities); she was terminated contrary to the Code; and her termination was a reprisal for the fact that she had advised her employer that she was going to make a complaint to the Commission.
[20] The hearing on the merits of her complaint began on May 27, 2007. It concluded on October 6, 2009 after 58 days of evidence and extensive written submissions supplemented by a day of oral argument. On February 1, 2010, the Tribunal had a further hearing in response to a request that certain information not be disclosed in the Tribunal's decision.
[21] The Tribunal released its decision on May 20, 2011. In its decision the Tribunal accepted that Ms. Farris was subjected to a poisoned work environment and that management had failed to take adequate steps to deal with that environment. It also accepted that Ms. Farris had been terminated contrary to the Code. It was not satisfied that Ms. Farris had been discriminated against in the allocation of referrals or that she was terminated as a reprisal for indicating that she was going to lay a complaint with the Commission.
[22] The Tribunal ordered Staubach to pay Ms. Farris $30,000 as compensation for injury to dignity, feelings and self-respect. However, the Tribunal declined to order that Mr. McKeague or Mr. Leonard were jointly and severally liable with Staubach for damages or to order any separate remedies against any individuals named by Ms. Farris in her complaint.
[23] In June of 2011, the Commission and Ms. Farris filed their reconsideration requests, which included a request that the Tribunal reverse its conclusion that Mr. McKeague and Mr. Leonard were not liable to pay any damages. On September 29, 2011, the Tribunal dismissed the reconsideration requests.
The Issues on the Judicial Review Application
[24] This judicial review application raises two issues:
(i) Was the Tribunal's decision not to find Mr. McKeague and Mr. Leonard jointly and severally liable for the damages awarded against Staubach unreasonable?
(ii) If the answer to the first question is "yes" should the matter be remitted to the Tribunal for reconsideration or should this court make the order that Mr. McKeague and Mr. Leonard be held jointly and severally liable for the $30,000 awarded against Staubach?
[25] All parties agree that the standard of review with respect to the merits of the Tribunal's decision is reasonableness (Shaw v. Phipps, 2012 ONCA 155 at para. 10).
The Tribunal's Decision Respecting Whether Mr. McKeague and Mr. Leonard Should Be Held Jointly and Severally Liable for Damages
[26] The key portions of the Tribunal's decision on this issue are found in paragraphs 206 to 212 of its decision of May 20, 2011, which read as follows:
Liability
The Commission argues that this is an appropriate case for finding Staubach and its two principals, Mr. Leonard and Mr. McKeague, jointly and severally liable for all findings of discrimination, harassment and reprisal made by the Tribunal regarding their own conduct and any employees and agents of Staubach. The Commission states that Mr. McKeague is a principal in the corporation and Mr. Leonard is the broker of record. In addition, the Commission relies on the fact that they were the only two shareholders of the holding company which owns Staubach.
Further, the Commission asks that I find the other personal respondents jointly and severally liable with Staubach for any discriminatory acts that they are found to have done.
The rationale underlying the Commission's position is that the corporation is no longer operational and therefore, not likely in a position to accept legal or financial responsibility; the respective conduct of the individuals is central to the case; and third, given the egregious nature of the conduct, a personal remedy is warranted.
Given my findings in this case and the evidence before me, I am not convinced that this is an appropriate case for making the individuals jointly and severally liable, nor for ordering separate remedies against the individuals.
First, I note that I have not found that Ms. Papillon breached the Code by her role in the creation of the email.
With respect to the remaining respondents, when I consider my findings, what is key is that I have concluded there was a poisoned work environment that was not recognized and addressed by Mr. McKeague and Mr. Leonard and this environment was a factor in the complainant's subsequent termination. While the agents played a definite role in the creation of that environment, the agents who participated included agents that were not named as parties. In parsing out what occurred it becomes difficult to ascertain the role that each agent played such that the centrality of each agent's role can be determined in a manner that makes sense and would support an order finding the individual liable for damages. Ultimately, I find that the appropriate order is against the corporation.
I have considered the Commission's submission that there is a juridical reason for naming the individual respondents. However, I do not understand the corporation to be bankrupt, only that it is not operational. In these circumstances, I do not find it appropriate to make an order against individuals on the presumption that the corporation will not be able to pay.
[27] In its Reconsideration Decision of September 29, 2011, the Tribunal found that its decision not to find any of the individual respondents named in the complaint jointly and severally liable for the damages against Staubach did not meet the test for reconsideration – it was not in conflict with established jurisprudence and did not involve a matter of general or public importance.
[28] On the issue of whether the decision was in conflict with established jurisprudence, the Tribunal said:
I do not find that the decision is in conflict with established jurisprudence. While the Commission has relied on a number of cases spanning a number of years, I do not find it necessary to review each case in detail. What I would observe is that in the Tribunal's more recent cases, when addressing whether individual respondents are properly included as parties (for example, Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, referred to in Payette, supra at paragraph 44) and/or whether individual respondents should be the subject of a remedial order (for example, Payette, supra), the Tribunal has considered a number of factors, including the ability of the corporate respondent to respond to or remedy an alleged infringement, the nature of the alleged/found conduct and the extent to which an individual's conduct is a central issue (see, for example, Payette, supra and the cases cited at paragraphs 43 and 44 thereof).
It is thus not the case that applications (or complaints) will proceed against individual respondents simply because they have been named by an applicant/complainant or that liability will be always assessed against an individual respondent where a corporate respondent is found liable for a contravention of the Code. The Tribunal has the discretion to remove or add individual respondents to an application and to hold individual respondents personally liable in the event remedies are awarded. In the Decision, I concluded that this was not an appropriate case to make an order against the individuals, having regard to the nature of my findings, the difficulty in ascertaining the role that each agent played such that the centrality of each agent's conduct could be determined, and the presumption that the corporation might not be able to pay (see paras. 209 and following).
Having regard to the foregoing, I am not satisfied that there is any basis for concluding that the Tribunal's decision not to make the individuals jointly and severally liable in this particular case is in conflict with established jurisprudence. The Tribunal has a discretion to make an order against a party that infringed a right, and in this case, I exercised that discretion having regard to factors set out in the case law and the particular circumstances in the case before me.
Was the Decision Not to Find Mr. McKeague and Mr. Leonard Jointly and Severally Liable for the Damages Awarded Against Staubach Unreasonable?
The Legal Framework
[29] Section 5(1) of the Code provides that every person has the right not to be discriminated against in the workplace. It reads:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
[30] Section 7(2) states that every person has the right to be free from harassment because of sex in the workplace
7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.
[31] Section 46.3(1) of the Code provides for the vicarious liability of corporations for the acts of their officers, employees or agents. That section reads:
46.3(1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers' organization.
[Emphasis added.]
[32] Thus, under the Code, a corporation cannot be held vicariously liable for the acts of its employees, agents or officers when it comes to sexual harassment. Those complaints are to be brought against the individual who actually committed the harassment.
[33] Management employees who fail to take appropriate action to prevent discriminatory harassment in the workplace once they know of the offending conduct may be found personally liable for infringing an employee's right to a workplace free from sex discrimination under s. 5(1). Failing to deal with the harassment, thereby creating a poisoned work environment is a violation under s. 5(1) of the Code, a violation for which the corporation can be held vicariously liable. Furthermore, if the individual responsible for the harassment is a directing mind of the corporation, then the corporation can also be held liable for the individual act of harassment (see Moffat v. Kinark Child and Family Services (No. 5) (1999), 1999 35166 (ON HRT), 36 C.H.R.R. D/346 (Ont. Bd. Inq.); Naraine v. Ford Motor Co. of Canada (No.4) (1996), 1996 20059 (ON HRT), 27 C.H.R.R. D/230 (Ont. Bd. Inq.), aff'd (1999), 1999 18727 (ON SCDC), 124 O.A.C. 39 (Div. Ct.), rev'd on other grounds (2001), 2001 21234 (ON CA), 209 D.L.R. (4th) 465 (Ont. C.A.), leave to appeal ref'd [2002] S.C.C.A. No. 69).
[34] The fact that a corporate respondent may also be jointly and severally liable for the conduct of employees is not a basis to insulate the employees from personal liability (Drummond v. Tempo Paint and Varnish Co. (No.4) (1998), 1998 29860 (ON HRT), 33 C.H.R.R. D/175 (Ont. Bd. Inq.)). The purpose of s. 46.3 of the Code is to confirm the parallel statutory liability of corporations for the actions of their employees, not to replace it (Reyes v. Seepersaud, 2010 HRTO 933 at para. 7).
[35] Section 45.2 of the Code governs the grant of remedies. It provides that "the Tribunal may make one or more of [emphasis added]" a number of orders against a party to the application, including the payment of monetary compensation. The section is clearly discretionary.
[36] The aim of the Code is the removal of discrimination. The Code's main approach is not to punish the discriminator, but rather to provide relief to the victims of discrimination. Remedies must be effective and consistent with the "almost constitutional" nature of the rights protected (Ontario Human Rights Commission v. Simpson-Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536; Robichaud v. Canada (Treasury Board), 1987 73 (SCC), [1987] 2 S.C.R. 84).
Analysis
[37] On the application before us, Ms. Farris asserts that the Tribunal's decision is unreasonable because, after a complaint that took over seven years to process and a hearing that lasted over 58 days, she was left with no effective remedy even though she was found to be the victim of discrimination. Staubach, the only party against whom damages were awarded, has been non-operational since 2004. Furthermore, the Tribunal's reasons provide no reasonable explanation for not awarding damages against Mr. McKeague and Mr. Leonard. They owned the holding company that owns Staubach, they were found not to have recognized and addressed the poisoned work environment that factored into Ms. Farris' termination, and they were the ones who terminated her employment.
[38] The Commission also argues that, having found that Mr. McKeague and Mr. Leonard breached the Code, it was unreasonable and inconsistent with established human rights principles of personal and corporate liability not to hold them liable for the damages that flowed from those breaches. Imposing only corporate liability, when the corporation was known to be inactive, provided no meaningful remedy to Ms. Farris. This result is inconsistent with the fundamental purpose of the Code. According to the Commission, the Tribunal failed to give adequate reasons to explain its decision not to make Mr. McKeague and Mr. Leonard jointly and severally liable with the corporation for Ms. Farris' damages.
[39] Mr. McKeague and Mr. Leonard submit that a reasonable basis for the Tribunal's decision on this issue can be inferred from reading the decision as a whole. First, the Tribunal considered that the role of each of Mr. McKeague and Mr. Leonard was not central enough to support a finding of individual liability. Second, the Tribunal was not satisfied that the corporation would not be able to pay, even though it was inactive. Both these considerations were valid considerations under human rights law. The Tribunal's decision was a discretionary one and, as such, is entitled to the highest degree of deference from this court.
[40] The Tribunal assists the court with respect to the standard of review and the case law on the adequacy of reasons. In doing so, it argues that its decision is entitled to the highest degree of deference and that, as a reviewing court, we should be cautious about substituting our own view of the proper outcome by designating an omission as "fateful". Under a reasonableness analysis, a decision is not required to deal with every issue and every argument raised by the parties, nor is perfection the standard. The reasons must adequately explain the bases of the decision. However, the reasons must be read in light of the evidence, the submissions of the parties and the nature of the decision maker's statutory task (Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708).
[41] In this case, when it came to dealing with the personal liability of the individuals against whom Ms. Farris had complained, the Tribunal found that one of these individuals (Ms. Papillon) had not breached the Code. While the Tribunal does not go on to expressly state this, it is clear that, given this finding, there would be no remedy ordered against Ms. Papillon.
[42] With respect to the other individual respondents, the Tribunal pointed out its "key" conclusion "that there was a poisoned work environment that was not recognized and addressed by Mr. McKeague and Mr. Leonard and this environment was a factor in the complainant's subsequent termination." However, instead of then dealing with the implications of this finding when it came to Mr. McKeague's and Mr. Leonard's liability for damages (as managers and owners), the Tribunal moved to discuss the role of the agents who had been named in the complaint.
[43] With respect to the agents, the Tribunal, as indicated earlier, found as follows:
While the agents played a definite role in the creation of the environment, the agents who participated included agents who were not named as parties. In parsing out what occurred it becomes difficult to ascertain the role that each agent played such that the centrality of each agent's role can be determined in a manner that makes sense and would support an order finding the individual liable for damages.
[44] Thus, it is clear that the Tribunal was not prepared to make any of the agents liable for damages because of the difficulty in determining the centrality of each agent's role in what occurred. After articulating this reason for not making the agents liable, instead of returning to deal with the liability of the managers, Mr. McKeague and Mr. Leonard, the Tribunal stated"Ultimately, I find that the appropriate order is against the corporation."
[45] This failure to expressly articulate a reason why the managers should not be found personally liable for damages constitutes a gap in the Tribunal's reasons. We agree that the mere existence of such a gap does not in and of itself render the decision an unreasonable one. As Newfoundland and Labrador Nurses' Union, supra, makes clear, the reasons are not to be reviewed in a vacuum, instead "the result is to be looked at in the context of the evidence, the parties' submissions and the process" (para. 18).
[46] A decision-maker is not required to make an explicit finding on each element of his or her decision. As put by Abella J. in Newfoundland and Labrador Nurses' Union at paragraph 16:
In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
[47] In this case, however, the reasons do not allow a reviewing court to understand why the Tribunal made the decision it did on the issue before us. Nor do they allow the court to determine whether the conclusion that Mr. McKeague or Mr. Leonard should not be found jointly and severally liable for any portion of the damages awarded against the corporation is within the range of acceptable outcomes.
[48] If, as Mr. McKeague and Mr. Leonard submit, the Tribunal implicitly decided not to find them personally liable for damages because, as with the agents, it could not determine how central their conduct was in creating the situation that led to Ms. Farris' termination, this reasoning flies in the face of what the Tribunal identified as its "key" finding; namely that Mr. McKeague and Mr. Leonard did not recognize and address the poisoned work environment, an environment that was a factor in her subsequent termination.
[49] As already mentioned, not recognizing and addressing a poisoned work environment is in and of itself a violation of s. 5(1) of the Code. Furthermore, it was Mr. McKeague and Mr. Leonard who decided to terminate Ms. Farris' employment rather than address the poisoned work environment, a termination that the Tribunal expressly found to be contrary to the Code. Given their distinct and separate duties as managers to address the poisoned work environment and the fact that it was their decision to terminate Ms. Farris, any finding that their role was not "central" in what occurred would be unreasonable.
[50] Another reason that was suggested for why the Tribunal chose not to find Mr. McKeague and Mr. Leonard jointly and severally liable for any of the damages awarded against Staubach is that there was no need to do so – awarding damages against the corporation was sufficient. This rationale was articulated by the Tribunal at paragraph 212 of its reasons:
I have considered the Commission's submission that there is a juridical reason for naming the individual respondents. However, I do not understand the corporation to be bankrupt, only that it is not operational. In these circumstances, I do not find it appropriate to make an order against the individuals on the assumption that the corporation will not be able to pay.
[51] In assessing whether this reasoning would provide a rational basis for the outcome that is in dispute, it is important to keep in mind two of the fundamental principles of human rights law that were outlined earlier in these reasons. First, a finding of corporate liability is not meant to act as a shield against a finding of individual liability where the acts of the individual constitute a violation of the Code. Second, the focus of human rights legislation is to provide an effective remedy to the complainant. One measure of effectiveness is the degree to which the damages can be collected.
[52] Staubach had been inoperative for seven years when the Tribunal rendered its decision. For this reason there should be concern as to whether Staubach could pay any remedy in the form of damages. It is true that inoperative corporations may still have assets. However, after seven years, they often do not and if they do not their assets have likely been distributed to their owners. In this case those owners are Mr. McKeague and Mr. Leonard.
[53] Given the overriding purpose of human rights legislation, to provide a remedy to the complainant, it is on its face unreasonable for the Tribunal to have limited its remedial relief to an award of damages against an inoperative corporation without providing a reason that specifically addresses its finding regarding Mr. McKeague and Mr. Leonard. The risk was clear. Ms. Farris, after proceedings that lasted almost eight years and a hearing that stretched over more than 58 days, could find herself with nothing by way of a remedy in spite of the fact that the managers and owners of the company for which she worked were found to have personally violated the Code. Furthermore, in its submissions to the Tribunal, the Commission pointed out to the Tribunal that it was partly because of this risk that the Commission was asking that the individual respondents be found jointly and severally liable for damages with Staubach for the discriminatory acts that they committed.
[54] In its decision of May 20, 2011 and in its Reconsideration Decision of September 29, 2011, the Tribunal's reasoning on this point appears to be driven by the case law on whether individual respondents should be "named" in a human rights proceeding when a corporation is also named.
[55] However, this case law was developed in the context of complainants' motions to add respondent parties to a proceeding that had already been commenced. On such motions there is a two-part test to be applied, as noted in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at paragraph 7:
The first part of the test is whether there are facts alleged that, if proven, could support a finding that the proposed respondent violated the complainant's rights. The second part of the test is whether the addition of the proposed respondent would cause substantial prejudice to that party's ability to make full answer and defence to the allegations that cannot be alleviated by procedural orders of the Tribunal. [Citations omitted.]
[56] Generally, where there is no issue about a corporation's ability to pay or about its vicarious liability, human rights tribunals have displayed a reluctance to add personal respondents, for fear of unnecessarily augmenting the complexity of the proceedings and decreasing the prospects that the complaint will be resolved (Sigrist and Carson, supra at para. 42).
[57] It is difficult to see why this case law would be relevant to a situation where the issue is not whether the personal respondents should be named, but whether they should be found jointly and severally liable for damages. Once a proceeding is being adjudicated there is no longer a concern about increased complexity or about barriers to resolution. Furthermore, even if this case law were apposite to the situation at bar, in this case there is a real concern about the corporation's ability to pay.
[58] Thus, the Tribunal's reasons, considered as a whole and in light of the evidence, the parties' submissions and the nature of its statutory task, do not disclose a rational basis for failing to find Mr. McKeague and Mr. Leonard jointly and severally liable for some or all of the damages awarded against Staubach.
[59] In view of this finding, the Tribunal's decision not to find Mr. McKeague and Mr. Leonard jointly and severally liable for the damages awarded against Staubach must be set aside.
Should the Matter be Remitted to the Tribunal or Should This Court Make its Own Remedial Order Against Mr. McKeague and Mr. Leonard?
[60] The Commission and Ms. Farris urge us to make our own remedial order rather than remit the matter for reconsideration to the Tribunal. First, they argue that "enough is enough." Ms. Farris waited long enough for her first decision. To make her wait some more would be unfair and contrary to the interests of justice. Second, they submit that the result of remittance is "inevitable." Code breaches and quantum of damages have been established and are not challenged. Given this, there is only one reasonable result that could come from remitting the matter to the Tribunal – namely, that Mr. McKeague and Mr. Leonard would be found jointly and severally liable for the full amount of damages awarded against Staubach.
[61] Subsection 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, gives this court jurisdiction to substitute our own remedy.
[62] In Stetler v. The Ontario Flue-Cured Tobacco Growers' Marketing Board, 2009 ONCA 234 at para. 42, 93 Admin. L.R. (4th) 312 the Court of Appeal states:
While "[a] court may not substitute its decision for that of an administrative decision-maker lightly or arbitrarily", exceptional circumstances may warrant the court rendering a final decision on the merits. Such circumstances include situations where remitting the case would be "pointless", where the tribunal is no longer "fit to act", and cases where"in light of the circumstances and the evidence in the record, only one interpretation or solution is possible, that is, where any other interpretation or solution would be unreasonable": Giguère v. Chambre des notaires du Québec, 2004 SCC 1, [2004] 1 S.C.R. 3, at para. 66.
[63] This is not a case where only one solution is possible or reasonable. The Tribunal awarded Ms. Farris $30,000 for injury to dignity, feelings and self-respect arising out of the discrimination she experienced. This discrimination included not only Mr. McKeague's and Mr. Leonard's discriminatory acts, but also those of the agents who spread the rumour about her and called her disparaging names. It was the culmination of these acts that the Tribunal found created the poisoned work environment that Mr. McKeague and Mr. Leonard failed to address.
[64] Given these findings, it is possible that the Tribunal could reasonably choose to find Mr. McKeague and Mr. Leonard jointly and severally liable for only a portion of the damages that it awarded against Staubach.
[65] Therefore, deference to the administrative decision-making process requires that the matter of apportionment of joint and several liability of Mr. McKeague and Mr. Leonard be remitted to the Tribunal for reconsideration.
Conclusion
[66] For these reasons the Tribunal's decision not to find Mr. McKeague and Mr. Leonard jointly and severally liable for any portion of the damages awarded against Staubach is set aside and this issue is remitted to the Tribunal for reconsideration in accordance with these reasons.
[67] The Commission requested nominal costs to compensate it for its disbursements. Ms. Farris did not request costs.
[68] Costs in the amount of $1,000.00 are fixed and payable to the Commission by the Respondents, Harry McKeague and Michel Leonard.
H. SACHS J.
K. SWINTON J.
H. WILTON-SIEGEL J.
Released: June 29, 2012
CITATION: Ontario Human Rights Commission v. Farris, 2012 ONSC 3876
DIVISIONAL COURT FILE NO.: 494/11
DATE: 20120629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Sachs and Wilton-Siegel JJ.
B E T W E E N:
ONTARIO HUMAN RIGHTS COMMISSION
Applicant
- and -
Katherine Farris, Staubach Ontario Inc., Harry McKeague, Michel Leonard and the Human Rights Tribunal of Ontario
Respondents
REASONS FOR JUDGMENT
Released: June 29, 2012