A.K. v. Peel District School Board, 2020 ONSC 6801
CITATION: A.K. v. Peel District School Board, 2020 ONSC 6801
DIVISIONAL COURT FILE NO.: DC 643-19
DATE: 20201109
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Aston, Sachs, Kristjanson JJ.
BETWEEN:
A.K.
Applicant
– and –
Peel District School Board and Human Rights Tribunal of Ontario
Respondents
Self-represented, applicant
Carl W. Peterson and Giovanna DiSauro, for the respondent Peel District School Board
Jason Tam, for the respondent Human Rights Tribunal of Ontario
HEARD: At Toronto (virtual hearing) September 14, 2020
Aston J.
Introduction
[1] A.K. brings this judicial review application to set aside two decisions of the Human Rights Tribunal of Ontario (“Tribunal” or “HRTO”) dated March 13, 2019 and June 18, 2019. In these decisions, the Tribunal dismissed A.K.’s application alleging that the Peel District School Board discriminated against her during her employment because of her disability. The second decision in June was a reconsideration of the first decision in March.
[2] For reasons that follow, the application is dismissed.
Standard of Review
[3] Relying on the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 (“Vavilov”), the Tribunal submits that the applicable standard of review is patent unreasonableness, as set out in s. 45.8 of the Ontario Human Rights Code (the Code). That section 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.” Alternatively, the Tribunal submits that the application of a reasonableness standard of review ought to recognize the highest level of deference within that standard.
[4] This court has considered the standard of review for HRTO decisions post-Vavilov on several occasions. Currently, the Court of Appeal for Ontario has a decision under reserve which is likely to address the issue: Longueépeé v. University of Waterloo, file C67862.
[5] At present, the only binding decision on the applicable standard of review for this Tribunal is the oft-quoted decision of the Court of Appeal for Ontario in Shaw v. Phipps, 2010 ONSC 3884, 325 D.L.R. (4th) 701 (Div. Ct.), aff’d 2012 ONCA 155, 347 D.L.R. (4th) 616. That case balanced and reconciled the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, with the language in s. 45.8 of the Code. To now adopt a “patently unreasonable” standard of review would amount to a departure from the approach this court has consistently adopted since Vavilov. See, for example, Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632, 446 D.L.R. (4th) 585, Wilkie v. Human Rights Tribunal of Ontario, 2020 ONSC 1569 and Ontario v. Association of Ontario Midwives, 2020 ONSC 2839.
[6] Though the applicant characterizes certain decisions and actions of the respondent School Board as failures in its procedural duty to her, she does not assert any breach of procedural fairness by the Tribunal itself. Her challenges to the Tribunal decisions focus on the facts as found and the application of human rights law to those facts. More specifically, the applicant does not challenge the Tribunal’s articulation of the law or legal principles, only its specific conclusions in determining whether her employer discriminated on the basis of her disability or failed in its duty to accommodate her. Given this, the relevant portions of Vavilov to focus on are its reminder that “absent exceptional circumstances, a reviewing court will not interfere with [a tribunal’s] factual findings”(para. 125). Exceptional circumstances would include when a tribunal has “fundamentally misapprehended or failed to take account of the evidence before it” or where it is demonstrated that the tribunal’s “conclusions were not based on the evidence that was before [it]”(para. 126).
The Issues
[7] In her written material and oral submissions, the applicant identifies the following issues:
Was it reasonable for the Tribunal to find that assigning the applicant to administrative leave at home in March 2015 did not constitute a breach of the Code or a failure to accommodate?
Was it reasonable for the Tribunal to find that requiring an independent medical examination did not constitute a breach of the Code or a failure to accommodate?
Was it reasonable for the Tribunal to find that the School Board did not fail in its duty to investigate and accommodate the applicant’s disability?
Was it reasonable for the Tribunal to find that the School Board did not breach the Code when it transferred the applicant to another school?
Was it reasonable for the Tribunal to find that the School Board did not breach the Code by calling the police to check on the applicant’s well-being?
Analysis
[8] The applicant, who is self-represented, misapprehends the role of the court on a judicial review application. Her written material and oral submissions seek to have the court weigh and assess the evidence and then substitute its findings for those of the Tribunal. That is not our function.
[9] To be successful before the Tribunal, the applicant needed to demonstrate on a balance of probabilities that (i) she had a disability, (ii) she experienced adverse treatment, and (iii) her disability was a factor connected to why the respondent made the decisions or took the actions she alleges were adverse treatment. In this case, she failed to clear the third hurdle. The Tribunal explained why she had failed in that regard and made specific findings of fact, available to it on the evidence, to justify that conclusion. The Tribunal also explained why there was no breach of a duty to accommodate the applicant.
[10] In doing so, it addressed each of the issues noted in paragraph 8 above. Its specific findings (with paragraph references) included the following:
a. The applicant provided no reliable medical evidence that her actions leading up to the assignment to home were because of her disability (para. 50)
b. The reason she was assigned to home was because she was not following the directions of the superintendent, specifically the direction to cease communicating with the school’s principal (paras. 51 and 84).
c. There was no evidence that could support a finding she was placed on leave because of her disability (para. 52).
d. The evidence did not demonstrate that the applicant had a disability-related need not to be assigned to home (para. 53).
e. The school board was not aware that the applicant had a disability-related need not to be assigned to home (para. 55).
f. The school board fulfilled its duty to inquire into the applicant’s medical circumstances when it assigned the applicant to home and concurrently made arrangements to begin the process of an independent medical exam (para. 58).
g. Ordering the independent medical exam was not a “medical decision” by the school board. Rather it was part of the school board’s procedural duty in the accommodation process (para. 59).
h. The applicant agreed at the outset to engage in the independent medical examination process (para. 60).
i. It was reasonable for the school board to suggest the independent medical examination when the applicant was stating that there was a medical reason for her behavior and that she had a disability-related need not to be placed on leave, but did not provide medical documentation to support her assertion (para. 62).
j. The evidence did not support a finding that the school board breached the applicant’s Code rights or failed to accommodate her disability-related needs when she was placed on administrative leave and there was no breach of her Code rights when the independent medical examination was directed (para. 63).
k. There was no evidence to indicate that the delay in completing the independent medical examination process was caused by the school board. Rather, any delays were caused by the applicant’s refusal to fully participate in that process (paras. 77 and 78).
l. There was no evidence to demonstrate that the school board’s decision to transfer the applicant to another school was connected to her disability, nor did the evidence support a finding that she had a disability-related need not to be transferred to a new school (para. 83)
m. The school board’s evidence about the reasons for deciding to transfer the applicant to another school away from the principal was credible and reliable and therefore the school board had a valid non-discriminatory reason for making that decision (para. 108).
n. There is nothing in the evidence that could demonstrate the school board had anything but good faith reasons to call the police when it asked them to check on the applicant’s well-being (para. 119).
[11] The applicant does not accept these findings, but there is no basis upon which we can reweigh the evidence and come to any different conclusions. At paras. 8 and 9 of the reconsideration decision the Tribunal stated:
[8] In her reasons for making the request, the applicant details numerous factual findings or conclusions reached by the Tribunal that she submits are incorrect or unsupported by the evidence. She contrasts the Tribunal’s findings and conclusions with her own interpretation of the evidence and with statements she made in her closing arguments or in her application.
[9] It is common for an unsuccessful party to disagree with the tribunal’s assessment of credibility and findings of fact and law. It is clear from the applicant’s submissions that she disagrees with the conclusions made in the Decision. She has detailed the many instances where she believes the evidence was misinterpreted or misstated or points to instances where she submits that the findings and conclusions are contradictory. Such a disagreement is not a ground on which to grant reconsideration of an application.
[12] This is also an apt description of A.K.’s judicial review application.
[13] The Tribunal’s decision was rendered after an eight-day hearing. The applicant had a fair opportunity to present her case. The Tribunal accepted some of her evidence but, on certain critical facts, preferred the evidence of the respondent. The Tribunal considered all the applicant’s allegations and concluded that she had failed to prove: 1) that she experienced adverse treatment because of her disability or 2) a breach of the employer’s duty to accommodate. The lengthy decision of the Tribunal addresses the evidence in detail and is clear in its findings. It does not fundamentally misapprehend or fail to take into acoount the evidence and its decision is based on the evidence that was before it. It also articulates the appropriate law and legal principles. On its face, the reasoning process is logical and transparent. Its findings and conclusions are not contradictory.
[14] Judicial deference reflecting the reasonableness standard of review is fatal to this judicial review application. It is therefore dismissed. Neither respondent is seeking an order for costs.
___________________________ Aston J.
I agree
Sachs J.
I agree
Kristjanson J.
Date of Release: November 9, 2020
CITATION: A.K. v. Peel District School Board, 2020 ONSC 6801
DIVISIONAL COURT FILE NO.: DC 643-19
DATE: 20201109
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Sachs, and Kristjanson JJ.
BETWEEN:
A.K.
Applicant
– and –
Peel District School Board and Human Rights Tribunal of Ontario
Respondents
REASONS FOR JUDGMENT
Aston J.
Date of Release: November 9, 2020