CITATION: Wilkie v. Human Rights Tribunal, et al., 2020 ONSC 1569
DIVISIONAL COURT FILE NO.: DC-18-0000-2433-0000
DATE: 20201030
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Penny, Labrosse JJ.
BETWEEN:
Valerie Wilkie
Applicant
– and –
Human Rights Tribunal of Ontario and Ontario Nurses’ Association
Respondents
Andrew Lister, for the Applicant
Kate Hughes and Nicole Butt, for the Respondent Ontario Nurses’ Association and Jason Tam for the Respondent Human Rights Tribunal of Ontario
HEARD: in Ottawa February 27, 2020
Aston J.
[1] Ms. Wilkie’s judicial review application seeks to quash the September 17, 2018 decision of the vice-chair of the Human Rights Tribunal which found that her union, the Ontario Nurses’ Association (ONA), was not liable under the Human Rights Code RSO 1990 c. H. 19 as a party to discrimination. Her original application to the Tribunal alleged discrimination by both her employer, the Ottawa Fertility Clinic, and the ONA. She settled her claim against her employer but continued her application against the ONA.
[2] Much of the time spent on this application addressed the specific facts of the case, in particular Mr. Lister’s interpretation of the evidence, but we will limit our review of the facts to those at the heart of the decision.
Standard of Review
[3] Section 45.8 of the Human Rights Code provides 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”.
[4] Until the recent Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the decisions in Shaw v. Phipps, 2010 ONSC 3884 (Div Ct); upheld 2012 ONCA 155 were often quoted as the reference for the degree of judicial deference to be afforded to a decision of the Tribunal. That case balanced and reconciled the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9 with the language in s.45.8 of the Human Rights Code. It would appear from Vavilov that the question of the standard of review for this particular Tribunal is now open for re-examination. Indeed, counsel on this judicial review application all agreed that the new standard of review is “patently unreasonable”.
[5] Courts in British Columbia and Alberta have already reaffirmed the standard of “patently unreasonable” in those provinces, using the reasoning in Vavilov. See Trach v. Alberta (Transportation Safety Board), 2020 ABQB 21 and Team Transport Services Ltd. v. Unifor, 2020 BCSC 91.
[6] The Vavilov decision has raised the possibility that a “patently unreasonable” standard of review has been resurrected in Ontario for decisions of this particular Tribunal. In this case, counsel agree that it has been. However, they do not articulate a common understanding of the difference between “unreasonable” and “patently unreasonable”.
[7] We are given to understand that a panel of this court is reconsidering the standard of review for decisions of the Human Rights Tribunal in Intercounty Tennis Association v. Human Rights Tribunal of Ontario, Catherine Boyd, Cheryl Corness and Fiona Miller, Toronto Divisional Court file No. 077/19. However, in the absence of a decision on the point by the Court of Appeal for Ontario, we choose for now, to rely on the standard of review articulated in Shaw v. Phipps, being a standard of reasonableness with a contextual approach to deference. The range of possible acceptable outcomes will expand or contract depending on statutory language and the proximity of an issue to the decision maker’s expertise. For this particular Tribunal the highest degree of deference is to be accorded to determinations of fact, the interpretation and application of human rights law and to the Tribunal’s own practices and procedures. Deference is afforded unless the decision is not rationally supported.
[8] Some of the challenges to the Tribunal’s decision are framed as a breach of procedural fairness amounting to a denial of natural justice. When addressing these particular challenges, the court does not engage in a standard of review analysis. Rather, the court determines whether appropriate principles of procedural fairness have been breached. If so, the decision must be quashed no matter what standard of review is otherwise applicable. The “appropriate principles” will take into account the procedural choices of the decision maker, especially where the governing statute grants the decision maker the ability to regulate its own process and has expertise in determining what procedure is appropriate to discharge its mandate, including institutional restraints.
[9] As will be apparent in these reasons, the question of whether the Tribunal’s decision is “patently unreasonable” is moot because we have concluded that it contains no error of law, is not unreasonable and does not constitute a breach of procedural fairness.
The Issues
Did the Tribunal err in failing to consider all the relevant medical evidence before it and in deciding not to allow expert medical evidence to be introduced?
[10] In para. 69 of the applicant’s factum she cites eleven specific uncontradicted items of medical evidence. The vice-chair did not refer to any of this evidence. He did not need to. That evidence was not germane to his reasoning or the heart of the decision.
[11] There was no evidence that the employer, the ONA or even the applicant herself knew that she had a cognitive medical condition or impairment before her employment was terminated. There was no direct evidence to support a finding that the employer or the ONA ought to have known before June 16, 2014 that she had a disability that would trigger a duty to accommodate. It was not an error of law, nor was it unreasonable, to decline to draw such an inference merely from the applicant’s recent job performance as compared to her prior work history. After June 16, 2014 the employer refused to consider reinstatement with accommodation. There was no accommodation the ONA could do on its own. If the ONA is to bear any responsibility to the applicant it must be grounded in something it did, or failed to do, before June 16.
[12] The applicant submits that by disposing of the complaint in a summary fashion, thereby denying the applicant any opportunity for her physicians to testify, the vice-chair breached his duty of procedural fairness. We disagree.
[13] This evidence would not be material because (a) neither the employer nor the ONA knew or ought to have known that the applicant had any disability before the termination of her employment; and (b) when her disability was subsequently discovered, the employer steadfastly refused to reconsider her termination. The employer was only prepared to reconsider the wording of the cause for termination and if it would be characterised as either a termination or a resignation. The ONA could not impede or interfere with accommodation by the employer when the employer was unwilling to afford any accommodation.
Did the Tribunal err in failing to give legal effect to the wording of the collective agreement which jointly obligated the respondent union to accommodate disabled employees?
[14] The collective agreement specifies that the employer and the union “recognize their joint duty to accommodate disabled employees in accordance with the Ontario Human Rights Code”. This provision in the collective agreement does not impose new or additional duties on the ONA. It simply acknowledges its participatory role.
[15] In April 2014, the employer asked the applicant verbally and in writing to inform the employer if she was experiencing any medical issues that might be causing or contributing to her negative job performance.
[16] In a routine business meeting between the employer and the union May 27, 2014, the employer raised this possibility with the union representatives. The minutes of that meeting state “there were some concerns that there may be some medical issues impairing her ability”. The minutes go on to say that Mr. Renaud, on behalf of ONA, would “consult with the [applicant] as appropriate to ensure this aspect is addressed”.
[17] Mr. Lister interprets that notation as “an undertaking to ask the applicant to see a physician in order to rule out any possible disability related reason” for her work performance issues. That characterization of the minutes is a significant exaggeration of what is noted. There is nothing to suggest the union “undertook” to do anything more than the employer had already done on two occasions – to ask the applicant if she was aware of any medical issue.
[18] Before the union representative asked the applicant about this, her employment was terminated, on her return from vacation June 16.
[19] Given the language of the collective agreement it was appropriate for the employer to engage the union in making an inquiry of the applicant and for the union to accept that responsibility. However, the failure of the union representative to pose the same question to the applicant that her employer had asked twice in April cannot be elevated to “a failure in a duty to accommodate” or an interference with the employer’s duty in that regard.
[20] The union’s failure to ask, even assuming it had a reasonable opportunity to do so between May 27 and the beginning of her vacation on June 7, is only relevant if that inquiry would have triggered a duty to accommodate. It is pure speculation to conclude that the applicant would have disclosed any medical condition or made an appointment to see her doctor for investigative purposes before her employment was terminated. She had not done so in April or May or before going on vacation in June. There is no reason to suppose her response to Mr. Renaud would have been any different from her response to her employer.
Did the Tribunal make erroneous findings not supported by the evidence?
[21] The Tribunal rejected the applicant’s contention that the ONA reasonably ought to have been aware that the applicant’s failure to contest discipline or the termination of her employment was a result of a disability for which she required accommodation.
[22] In doing so the vice-chair referred to the applicant’s own testimony that “there was no reason for the ONA’s representatives to know that a health problem existed”. The fact that the ONA became aware of her medical issue weeks (or months) after she was terminated, and after the employer had already shut the door on any discussion about her reinstatement, is irrelevant to its knowledge at the material time. It is unreasonable for the applicant to submit the ONA “reasonably ought to have been aware” of a medical problem of which she and her husband were themselves unaware.
[23] The applicant submits there were actual accommodation efforts by the employer; namely, asking her on two occasions in April 2014 if she was experiencing any medical issue related to her job performance and then asking the ONA to make that same inquiry in May 2014. It was not unreasonable for the Tribunal to conclude that these are not accommodation efforts. We were not referred to any precedent that would support characterizing them as such.
[24] In fact, the applicant’s complaint to the Tribunal alleged that her employer had failed to fulfill its duty to accommodate. In her own testimony she did not assert that the employer made any attempt to accommodate, much less a reasonable attempt. Her characterization of the employer’s actions as an attempt at accommodation was only advanced for the first time after she settled her case against the employer.
Did the Tribunal err in finding that there was “no reasonable prospect of success”?
[25] When considering the summary disposition of a complaint before conducting a full hearing, the Tribunal assumes the facts in the complaint are true or capable of proof, but it is not required to disregard the evidence it does hear.
[26] In this case Ms. Wilkie’s pleading and her own testimony, together with other non- controversial evidence, allowed the Tribunal to conclude that no accommodation efforts were made by the employer before it learned of her medical impairment and that the employer refused to consider reinstatement after it was aware of that medical impairment.
[27] Therefore, there was no need to consider what further or better evidence might reasonably be available on a full hearing, at least so far as a claim against the ONA is concerned.
[28] Simply put, there was nothing to trigger a duty to accommodate before the applicant’s medical condition was revealed by her. After her medical condition was revealed, there may well have been a duty to accommodate on the part of the employer. However, the employer made a unilateral and unequivocal decision not to offer any accommodation and was not open to reconsidering the termination. In addition, Ms. Wilkie told the ONA that she was not interested in returning to work. The ONA could not be found to impede or interfere with accommodation efforts by the employer because none were made.
[29] A union’s duties in protecting a member from discrimination in employment were addressed in the decision of the Supreme Court of Canada in Renaud v. Central Okanagan School District, No. 23, 1992 81 (SCC), [1992] 2 S.C.R. 970. A union can become a party to discrimination in one of two ways: by participating in a work rule that is discriminatory in its impact on the employee, or, by impeding reasonable efforts by an employer attempting to accommodate the employee.
[30] The Tribunal reasonably concluded at para.32 that ONA’s failure to detect any disability in this case was not in and of itself a violation of the Human Rights Code.
[31] In the absence of any evidence whatsoever that differential treatment was accorded to the applicant by the ONA on the basis of her disability, no prima facie case is established against the ONA.
[32] Ms. Wilkie asserts that the summary dismissal of her complaint without having an opportunity to present witnesses and cross-examine on the evidence of the ONA amounts to a denial of procedural fairness. We disagree.
[33] The summary dismissal process is an essential tool for the Tribunal in managing its caseload and resources. The summary dismissal procedure is duly constituted under the Tribunal’s Rules and has been approved explicitly and implicitly by this court time and time again.
[34] Before December 2006, the Human Rights Commission exercised a gatekeeping function, controlling the complaints referred to the Tribunal for adjudication. The Human Rights Code Amendment Act, 2006, S.O. 2006, c. 30 changed that process. As noted in the Divisional Court’s decision in Shaw v. Phipps, noted above, at para. 28:
The amendments made it clear that the Tribunal is a specialized body whose sole task is to resolve human rights complaints through adjudication or alternative dispute resolution. It must be staffed by individuals who have gone through a selection process and demonstrated that they possess experience, knowledge or training in human rights, an aptitude for impartial adjudication and an aptitude for applying alternative adjudicative practices and procedures (Code, s. 32). The Tribunal has the power to adopt procedures and practices which, in its opinion, “offer the best opportunity for a fair, just and expeditious resolution of the merits” of applications (Code, s. 40).
[35] The summary procedure process adopted in this case reflects appropriate principles of procedural fairness.
[36] The application is therefore dismissed.
[37] Counsel agreed on the quantum of costs. The applicant shall pay the ONA costs fixed in the amount of $5,000. No costs are payable to the Tribunal.
Aston J.
I agree _______________________________
Penny J.
I agree _______________________________
Labrosse J.
Released: October 30, 2020
CITATION: Wilkie v. Human Rights Tribunal, et al., 2020 ONSC 1569
DIVISIONAL COURT FILE NO.: DC-18-0000-2433-0000
DATE: 20201030
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Valerie Wilkie
BETWEEN:
Human Rights Tribunal of Ontario and Ontario Nurses’ Association
REASONS
Released: October 30, 2020