CITATION: 642518 Canada Inc. v. Vetricek, 2012 ONSC 5546
DIVISIONAL COURT FILE NO.: 152/11
DATE: 20121017
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU, SWINTON AND SLOAN JJ.
BETWEEN:
642518 CANADA INC., DBA ALGONQUIN CAREERS ACADEMY
Applicants
– and –
STEVE VETRICEK and HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
Terrance J. Green, for the Applicants
James Schneider, for the Respondent, Human Rights Tribunal of Ontario
Bay Ryley, for the Respondent, Vetricek
HEARD at Toronto: October 1, 2012
ORAL REASONS FOR JUDGMENT
SWINTON J. (orally)
[1] The applicant 642518 Canada Inc. seeks judicial review of a decision of the Human Rights Tribunal of Ontario, dated April 6, 2010 and a Reconsideration Decision, dated June 30, 2010.
[2] The Tribunal found that the applicant had discriminated against the respondent Steve Vetricek, a former employee, on the basis of disability, as his shoulder injury was a factor in the termination of his employment.
[3] Reasonableness is the standard of review to be applied to a Tribunal’s decision applying the provisions of the Human Rights Code, R.S.O. 1990, c. H.19 respecting discrimination (see s.45.8 and Shaw v. Phipps, 2012 ONCA 155 at para. 10).
[4] The applicant argues that the employee’s condition was not a disability within s.10(1)(a) of the Code. However, the definition of disability is a broad one, and the Tribunal could reasonably conclude on the medical and other evidence before it that the employee suffered from a disability because of his shoulder condition.
[5] The Tribunal gave reasons explaining why it made adverse findings respecting Mr. Soye’s credibility. While the Tribunal made some errors of fact, some of which were referred to in the Reconsideration Decision, we are satisfied that these errors were not material and would not have affected the outcome of the decision. There is a line of analysis in the reasons, and the finding that disability was a factor in the termination was reasonable based on the evidence before the Tribunal. We note that no issue was taken before the Tribunal with respect to the calculation of lost wages.
[6] The applicant also alleges that the Tribunal was biased in favour of the employee because the Tribunal made so many findings of fact that supported the employee’s application. This, by itself, does not raise a reasonable apprehension of bias. There is no evidence in the record that meets the test for a reasonable apprehension of bias as set out in Committee for Justice and Liberty and Canada v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369 at 394-395.
[7] Accordingly, the application for judicial review is dismissed.
COSTS
PARDU J.
[8] On behalf of the panel, I have endorsed the Application Record, “Application dismissed for reasons delivered orally. Costs to the respondent Vetricek fixed at $5,000 inclusive of HST and disbursements.”
SWINTON J.
PARDU J.
SLOAN J.
Date of Reasons for Judgment: October 1, 2012
Date of Release: October 17, 2012
CITATION: 642518 Canada Inc. v. Vetricek, 2012 ONSC 5546
DIVISIONAL COURT FILE NO.: 152/11
DATE: 20121001
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU, SWINTON AND SLOAN JJ.
BETWEEN:
642518 CANADA INC., DBA ALGONQUIN CAREERS ACADEMY
Applicants
– and –
STEVE VETRICEK and HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: October 1, 2012
Date of Release: October 17, 2012