CITATION: Adams v. Human Rights Tribunal of Ontario, 2012 ONSC 6119
DIVISIONAL COURT FILE NO.: 355-10
DATE: 20121123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, TOSCANO ROCCAMO and DUCHARME JJ.
B E T W E E N :
GILLIAN ADAMS cob DUNEDIN HOUSE BED & BREAKFAST
Applicant
(Respondent)
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondent
(Respondent)
THOMAS RICHARD ARNOLD and PETER GRAV
Applicants before the HRTO
Martha Cook
for the Applicant
(Respondent)
Andrea Cole
for the Respondent Human Rights Tribunal of Ontario
Thomas Arnold and Peter Grav
in person
HEARD in Toronto: October 19, 2012
TOSCANO ROCCAMO J. (ORALLY):
[1] This is an application for judicial review of a decision of the Ontario Human Rights Tribunal (“HRTO”) dated February 11, 2010, in which Adjudicator, Caroline Rowan, found the Applicant Gillian Adams, carrying on business as Dunedin House Bed and Breakfast, discriminated against Thomas Arnold and Dr. Peter Grav on the grounds of sexual orientation and marital status contrary to s. 1 of the Human Rights Code R.S.O. 1990, c.H.19. Subsequent Reconsideration by Adjudicator Rowan did not change the Decision.
[2] The Applicant seeks an order quashing both the Decision and Reconsideration Decision, dismissal of the complaint and costs throughout the procedure.
standard of review
[3] The parties agree that the standard of review applicable to this case is reasonableness. The Ontario Court of Appeal in Shaw v. Phipps, 2012 ONCA 155 at paragraph 10 determined that the appropriate standard of review for a decision of the HRTO is reasonableness with the highest degree of deference.
[4] The Court of Appeal affirmed that this high degree of deference is owed to the HRTO’s determinations of fact and interpretation and application of human rights law, and that this deference is owed due to recognition of the Tribunal’s specialized expertise, unless the decision is not rationally supported.
[5] The Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraphs 46 to 47 set out the content of the standard of reasonableness on an application for judicial review. The Supreme Court held that reasonableness as a standard is animated by the principle that certain questions that come before administrative tribunals do not lend themselves to one specific particular result. Instead, they may give rise to a number of possible reasonable conclusions.
[6] In judicial review, reasonableness is concerned with the existence of justification, transparency and intelligibility within the decision-making process and whether a decision comes within the range of possible, acceptable and defensible outcomes.
[7] The Supreme Court in Dunsmuir identified four contextual factors relevant to the determination of the appropriate standard of review:
The presence or absence of a privative clause;
The purposes of the tribunal, as determined by interpretation of its enabling legislation;
The nature of the question at issue, and;
The expertise of the tribunal.
[8] The Code contains a strong privative clause at s.45.8 which states that:
… a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.
[9] The specialized expertise of the Tribunal in the interpretation and application of human rights law and determinations of fact and the exercise of discretion associated with the interpretation and application of the law was recognized by the Court of Appeal in Shaw v. Phipps at paragraphs 37 to 38 and 41 to 42.
[10] The Supreme Court of Canada in Canadian Human Rights Commission v. Canada (Attorney General), 2011 SCC 53 at paragraph 25 recently confirmed that this deference is still owed even where the issue before the Tribunal is one related to the application of a common law doctrine or general principle of law.
submissions of the applicant AND THE RESPONDENT
[11] The Applicant submits the Decision and Reconsideration Decision of the Tribunal should be quashed on the basis that:
Adjudicator Rowan failed to require the plaintiffs to establish a prima facie case of discrimination under s.1 of the Code in the sense of withholding a benefit available to others or imposing a burden not imposed on others;
She unreasonably inferred differential treatment, and
Finally, she unreasonably assumed that the claimants suffered disadvantage.
[12] At the heart of the Applicant’s case at first instance was the argument that she did not have a room for rent at the material times, but after friendly conversation with Dr. Grav felt disposed to assist him by offering him a smaller, unlicensed room. She withdrew her offer after learning that the doctor would be accompanied by his partner, Thomas Arnold.
[13] She argued that, because the room was unlicensed, bed and breakfast services in respect of the room would not have been made available to the public; therefore, the claimants would be unable to establish a prima facie case of disadvantage based on differential treatment on a ground prohibited by the Code.
[14] At the Reconsideration, the Applicant refined these submissions by reliance on the common law doctrine of illegality. She argued that expressly prohibited services such as the renting out of unlicensed rooms are, by definition, not available to other members of society and therefore cannot be the basis of the claim for relief under the Code.
[15] The Tribunal takes no position on the merits but asks that the matter be remitted to the Tribunal if the application is successful.
ANALYSIS
[16] We have concluded that the Applicant’s submission hinged on how the Tribunal weighed the evidence before her. Adjudicator Rowan found that the Applicant only advised Dr. Grav that the room was unlicensed after she heard that he was to be joined by his same sex partner, Mr. Arnold. It was open to her to reject the Applicant’s evidence that the question of the licence was raised earlier in conversation with Dr. Grav and to conclude, as Adjudicator Rowan did, that bed and breakfast services available to others were withdrawn due to their sexual orientation and marital status.
[17] Having made a finding of differential treatment based on a prohibited ground, it is true that the Adjudicator did not expressly discuss the further requirement that this created “a disadvantage by perpetuating prejudice or stereotyping” as addressed by the Ontario Court of Appeal in Ontario (Director of Disability Support Program) v. Tranchemontagne (2010), 2010 CarswellOnt. 6821 at paragraph 84. However it is clear that, on the record before the adjudicator, an inference of stereotyping or perpetuating disadvantage could be drawn.
[18] In assessing this submission it is important to note that the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 has recently determined that “inadequacy of reasons” is not a stand alone basis for reviewing a decision; rather, as Justice Abella explained at paragraphs 14, 15 and 16:
It is a more organic exercise – the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.
In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard for facts and the law”. This means that courts should not substitute their own reasons but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.
Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allowed 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.
[19] Adjudicator Rowan’s chain of reasoning was clear, justified on the basis of tenable findings, transparent and intelligible. The result falls within the range of possible acceptable and defensible outcomes and, therefore, accords with the standard of reasonableness set out by the Supreme Court in Dunsmuir. The Decision and Reconsideration are therefore entitled to the highest of deference.
[20] In the result, the Application for judicial review is dismissed. The Tribunal seeks no costs in the Application; therefore, we make no order as to costs.
KITELEY J.
TOSCANO ROCCAMO J.
DUCHARME J.
DATE OF REASONS FOR JUDGMENT: October 19, 2012
DATE OF ORIGINAL RELEASE: November 23, 2012
DATE RE-RELEASED: December 11, 2012 to correct typographical errors
CITATION: Adams v. Human Rights Tribunal of Ontario, 2012 ONSC 6119
DIVISIONAL COURT FILE NO.: 355-10
DATE: 20121123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, TOSCANO ROCCAMO and DUCHARME JJ.
B E T W E E N :
GILLIAN ADAMS cob DUNEDIN HOUSE BED & BREAKFAST
Applicant
(Respondent)
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondent
(Respondent)
THOMAS RICHARD ARNOLD and PETER GRAV
Respondents
(Applicants before the HRTO)
REASONS FOR JUDGMENT
TOSCANO ROCCAMO J.
DATE OF REASONS FOR JUDGMENT: October 19, 2012
DATE OF RELEASE: