[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Mohmand v. Human Rights Tribunal of Ontario and Ultimate Currency Exchange 2021 ONSC 528
DIVISIONAL COURT FILE NO.: 126/20 DATE: 20210122
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, MCCARTHY AND KRISTJANSON JJ.
BETWEEN:
SORAYA MOHMAND Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO – and – ULTIMATE CURRENCY EXCHANGE Respondents
COUNSEL: E. Siu, for the Applicant B. Blumenthal, for the Respondent Human Rights Tribunal of Ontario C. Moore, for the Respondent Ultimate Currency
HEARD at Toronto: by videoconference January 20, 2021
REASONS FOR DECISION
McCarthy J.:
The Application
[1] The Applicant seeks judicial review of the decision of the Human Rights Tribunal of Ontario (“the Tribunal”) dated January 14, 2020 in which Adjudicator McKendy (“the Adjudicator”) dismissed the Applicant’s request for reconsideration (the “reconsideration decision”): Mohmand v. Ultimate Currency Exchange, 2020 HRTO 28.
Background
[2] On July 16, 2019, the Applicant applied for relief under s. 34 of the Human Rights Code of Ontario, R.S.O. 1990, c. H.19 (“the Code”) for alleged discrimination and harassment which she claims to have suffered while employed with the Respondent Ultimate Currency Exchange (“UCE”).
[3] On September 3, 2019, the Tribunal’s Registrar issued a Notice of Intent to Dismiss (“NOID”) the application on the basis that the Tribunal might have lacked jurisdiction to consider the application because UCE appeared to be a federally regulated employer or service provider. The NOID was sent to counsel of record for the Applicant.
[4] The NOID referred the Applicant’s counsel to the provisions of the Code and the Tribunal’s rules of procedure and guidelines. The NOID then went on to advise as follows:
You must provide written submissions responding to the issues identified above. You must file your written submissions on or before October 1, 2019.
The HRTO will consider your submissions and may decide whether to dismiss your Application, may decide to continue processing the Application or may provide further directions to the parties regarding this proceeding.
If you do not respond to this letter and file written submissions by the deadline, the HRTO will consider the failure to respond as an abandonment of your Application and dismiss the Application for that reason.
(The emphasis is from the NOID).
[5] The Applicant subsequently filed a similar complaint with the Canadian Human Rights Commission (“CHRC”). When the Applicant failed to provide written submissions to the Tribunal on the issue of jurisdiction by October 1, 2019, her application was dismissed as abandoned on October 4, 2019.
[6] On October 31, 2019, the CHRC advised the Applicant that it could not hear the complaint because UCE was a provincially regulated entity under the constitution.
[7] The Applicant then returned to the Tribunal and filed the request for reconsideration on or about November 11, 2019. She asked the Tribunal to reconsider the dismissal order, revive the application, and reverse its previous finding on jurisdiction. The Applicant requested that the “Tribunal assess the Application on the facts detailed in the Application.” That request was dismissed by the Adjudicator in the reconsideration decision.
The Applicant’s Position
[8] The Applicant seeks an order in the nature of certiorari quashing or setting aside the reconsideration decision and for the following declaratory relief: that the reconsideration decision was unreasonable; that the Tribunal’s initial decision to dismiss be quashed; and that the application falls within the Tribunal’s jurisdiction. In the alternative, the Applicant asks that the matter be remitted to the Tribunal. The Applicant also seeks her costs on a substantial indemnity basis.
The Respondents’ Position
[9] The Respondent UCE asserts that the application for judicial review should be dismissed. The Respondent HRTO argues that the standard of review should be patent unreasonableness in line with the language of section 45.8 of the Code. UCE takes no position on the appropriate standard of review. Both parties submit that a high degree of deference is owed to the Tribunal on discretionary decisions. The Respondent HRTO does not seek costs. The Respondent UCE seeks costs of $900.00.
The Standard of Review
[10] There is some disagreement on the appropriate standard of review of the reconsideration decision. For the purposes of the matter before it, this Court need not resolve whether the appropriate standard of review of a Tribunal decision is “reasonableness” or “patent unreasonableness”. I have reached the conclusion that, simply on the standard of “reasonableness”, the application cannot succeed.
Legislative Framework and Tribunal Rules
[11] Pursuant to section 40 of the Code, the Tribunal is directed to adopt practices and procedures in its rules which offer the best opportunity for fair, just and expeditious determination of the merits of an application
[12] Section 45.7 of the Code empowers the Tribunal, upon the request of a party to a proceeding, to reconsider final decisions in accordance with its rules.
[13] The Tribunal’s rules of procedure include the power, on its own initiative, to dismiss all or part of an application that is outside the jurisdiction of the Tribunal (Rule 13.1).
[14] Rule 13.2 sets out the procedure that is to be followed when the Tribunal identifies a preliminary concern with jurisdiction:
Tribunal Initiated Preliminary Consideration of Jurisdiction
13.2 Where it appears to the Tribunal that an Application is outside the jurisdiction of the Tribunal, the Tribunal shall, prior to sending the application to the Respondent(s), issue a Notice of Intention to Dismiss the Application. The Notice will:
a. be sent to the Applicant only;
b. set out the reasons for the intended dismissal; and
c. require the Applicant to file written submissions within 30 days.
[15] The Tribunal has also issued both rules and a practice direction in respect of its section 45.7 powers of reconsideration. Rule 26 of those rules provides, in part:
26.1 Any party may request reconsideration of a final decision
26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:
(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
(b) the party seeking reconsideration was entitled but, through no fault of its own, did not receive notice of the proceeding or hearing; or
(c) the decision or order which is the subject of the reconsideration request conflicts with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
[16] The Tribunal’s Practice Direction on Reconsideration includes the following statements:
Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.
Analysis
[17] In determining whether the reconsideration decision was reasonable, I apply the guidance of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. The court must begin by examining the reasons of the administrative decision-maker with “respectful attention”, seeking to understand the reasoning process followed by the decision-maker (Vavilov, at para. 84). The reasons should be read holistically and contextually (Vavilov, at para. 97). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness—justification, transparency and intelligibility—and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99). A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85).
[18] The reconsideration decision is a discretionary one. The Supreme Court in Vavilov went on to emphasize that a discretionary decision of an administrative body must comply with the rationale and purview of the governing statutory scheme under which it is adopted and must comport with any more specific constraints of that scheme such as statutory definitions, principles or formulas that prescribe the exercise of a discretion: Vavilov, at para. 108.
[19] This Court has stressed that discretionary findings with respect to procedural issues, controlling its own process and adjudicating requests for reconsideration in applications under the Code are areas of expertise unique to the Tribunal. Reconsideration decisions by the Tribunal are discretionary but also based upon both an application of the criteria set out in the rules and an assessment of the particular facts of the case. A high degree of deference should be accorded to such decisions; see Paul James v. York University and Ontario Human Rights Tribunal, 2015 ONSC 2234 (Div. Ct.) at paras. 56-60.
[20] In the reconsideration decision in question, the Adjudicator considered the following:
That the application had been dismissed as abandoned because the applicant failed to respond to the NOID.
That the NOID had advised the applicant that a failure to respond might result in the application being dismissed as abandoned.
That the request for reconsideration had been filed outside of the 30-day time limit set out in Rule 26.01. Nevertheless, the Adjudicator went on to address the “substance” of the request.
That the Applicant based her request upon the following: one, that it was not plain and obvious that the application was outside the Tribunal’s jurisdiction and; two, that the letter from CHRC constituted new facts for the purpose of Rule 26.5(a).
Rules 26.1 and 26.5
The Tribunal’s Practice Direction on Reconsideration
[21] The Adjudicator rejected the suggestion that the determination of jurisdiction from the CHRC amounted to new facts or evidence that could be potentially be determinative of the case and that could not reasonably have been obtained earlier. She concluded that it was merely a legal position which would have been readily discernible to the Applicant who was represented by counsel.
[22] The Adjudicator determined that the Applicant had mischaracterized the NOID as a decision of the Tribunal. The NOID was sent to the Applicant to provide her an opportunity to make submissions on the jurisdiction issue. The Adjudicator also pointed out that the Applicant failed to request a deferral of the application pursuant to section 45 of the Code and rule 14.
[23] The Adjudicator then turned her mind to the test set out at Rule 26.5(c); she was unable to find any conflicting jurisprudence and did not conclude that the matter was of general or public importance. In fact, dismissals for failure to respond to a NOID were consistent with Tribunal policy.
[24] I find the Adjudicator’s reconsideration decision was reasonable. It is based on an internally coherent and rational chain of analysis justified in relation to the facts and the law, and demonstrates justification, transparency and intelligibility.
[25] The Adjudicator did not simply dismiss the request on the basis that it had not been made within 30 days. She went on to carefully consider the substance of the request. The Adjudicator applied the appropriate test under the rules and made findings that she was entitled to make. I am not troubled that she failed to consider subparagraph (d) of Rule 26.5: no other factors were raised by the Applicant for consideration.
[26] The reconsideration decision was a discretionary one. It was arrived at in accordance with the rules created by the Tribunal as authorized by its enabling statute. A high degree of deference should be afforded to the Tribunal when it applies its own rules and controls its own processes.
[27] I find no denial of natural justice here. The NOID provided adequate, even emphatic, notice that the jurisdiction issue was in play. It emphasized that written submissions were required by a specified deadline, failing which the application would be dismissed. That is precisely what happened. The reconsideration process of which the Applicant availed herself was discretionary but also governed by a defined set of criteria. The Adjudicator fairly determined the matter in accordance with that process and those criteria.
Disposition
[28] For the reasons set out above, there is no basis upon which to grant the relief sought. The application for judicial review is therefore dismissed.
[29] The Applicant shall pay the costs of the Respondent UCE fixed and payable forthwith in the amount of $900.
McCARTHY J.
I agree
SWINTON J.
I agree
KRISTJANSON J.
Date of Release: January 22, 2021
CITATION: Mohmand v. Human Rights Tribunal of Ontario and Ultimate Currency Exchange, 2021 ONSC 528
DIVISIONAL COURT FILE NO.: 126/20 DATE: 20210122
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, McCARTHY AND KRISTJANSON JJ.
BETWEEN:
SORAYA MOHMAND Applicant
- and -
HUMAN RIGHTS TRIBUNAL OF ONTARIO
- and - ULTIMATE CURRENCY EXCHANGE Respondents
REASONS FOR JUDGMENT
McCarthy J.
Date of Release: January 22, 2021