Court File and Parties

CITATION: Tang v. Human Rights Tribunal of Ontario, 2021 ONSC 6523

DIVISIONAL COURT FILE NO.: 071/21

DATE: 20211006

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JENNY TANG, Applicant

AND:

HUMAN RIGHTS TRIBUNAL OF ONTARIO, NEW HORIZONS SYSTEMS SOLUTIONS INCORPORATED, SOCIETY OF UNITED PROFESSIONALS and ANDREW STOCK, Respondents

BEFORE: Sachs, R. D. Gordon and Kristjanson JJ.

COUNSEL: Nick Papageorge and Jennifer Zdriluk, for the Applicant

Brian A. Blumenthal, for the Respondent Human Rights Tribunal of Ontario

Carla Black and Anne Marie Heenan, for the Respondent New Horizons Systems Solutions Incorporated

Danielle Stampley, for the Respondents Society of United Professionals and Andrew Stock

HEARD at Toronto by videoconference: September 28, 2021

ENDORSEMENT

Overview

[1] Ms. Tang’s application to the Ontario Human Rights Tribunal was deferred on consent pending resolution of a workplace grievance. After the grievance was eventually withdrawn, she asked the Tribunal to re-activate her application. Her request was declined as was her request for reconsideration. She seeks judicial review of those decisions.

Background

[2] In February 2014, Ms. Tang filed an application with the Tribunal alleging discrimination with respect to employment on the grounds of disability and sex, including sexual harassment. The application was deferred on consent of all parties pending the outcome of a grievance that the Society of United Professionals had filed on her behalf two years earlier. The grievance was referred to mediation and, later, to arbitration.

[3] On July 24, 2017, in a brief written endorsement, the grievance was endorsed by the arbitrator as withdrawn on a with prejudice basis.

[4] On January 19, 2018, Ms. Tang filed with the Tribunal a Request for an Order During Proceedings to have her application reactivated. Under Rule 14 of the Tribunal’s Rules of Procedure, Ms. Tang had sixty days from the completion of the grievance to do so. She missed the deadline by nearly four months. The respondents to the application objected to the request for reactivation. A hearing was convened to determine the issue.

[5] Eventually, by decision dated January 23, 2020 the Tribunal declined to reactivate the application. It held that in order to exercise its discretion to lengthen the time for requesting re- activation Ms. Tang needed to provide a good faith or reasonable explanation for the delay in filing the request and show that no party would experience substantial prejudice because of the delay. In addition, the Tribunal held that where, as here, the delay was alleged to be in good faith because of the applicant’s disability, it required medical evidence that the disability was such as to prevent her from pursuing her legal rights before it. In the end, the Tribunal determined the evidence did not establish that the Applicant’s medical condition prevented her from filing a reactivation request in a timely manner. As she had not met the first stage of the test the Tribunal did not make findings on the issue of prejudice. On the request for reconsideration the Tribunal was not satisfied that that the grounds for reconsideration met the requirements of the rule and rejected the argument that it had applied the wrong test in its analysis. It concluded that “… all of the applicant’s arguments amount to a transparent, improper, and unfortunately not uncommon attempt to bootstrap an appeal into a Request for Reconsideration”.

Jurisdiction

[6] This court has jurisdiction under sections 2(1) and 6 of the Judicial Review Procedure Act.

Standard of Review

[7] The Tribunal submits that the standard of review is patent unreasonableness as opposed to reasonableness. The remaining parties submit that the standard of review is reasonableness. Whether there is a difference between patent unreasonableness and reasonableness, and if so which standard applies, is currently before the Court of Appeal for Ontario. In the case before us we need not resolve the issue as the same determination follows in either event.

Analysis

[8] Ms. Tang raises four main issues before us: (1) That the Tribunal applied the wrong test in determining whether an extension of time was warranted; (2) That the Tribunal failed to properly understand the medical evidence and grasp the totality of the evidence before it; (3) That the Tribunal erred by requiring evidence of Ms. Tang’s total incapacity; and (4) That there is a reasonable apprehension of bias revealed in the Tribunal’s decisions.

[9] The Tribunal acknowledged the existence of another line of decisions applying a different test for the granting of an extension of time for renewal of an application. However, it found that the test it was applying in this case was the test predominantly used in its jurisprudence.

[10] As noted by the Supreme Court of Canada in Domtar Inc. v. Quebec (Commission d’appel en matière de lesions preofessionnelles), [1993] 2 SCR 756, a lack of unanimity is the price to pay for the decision-making freedom and independence given to members of these tribunals and that recognizing the existence of a conflict in decisions as an independent basis for judicial review would constitute a serious undermining of that freedom and independence. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the court affirmed Domtar but added that when a decision maker departs from longstanding practices or established internal authority, it must explain that departure in its reasons and that a failure to do so may render the decision unreasonable.

[11] In this case the Tribunal cannot be said to have departed from a longstanding practice or established internal authority. It followed a line of cases followed on several occasions prior and on at least once occasion since. Although it may well be preferable that the Tribunal reach a measure of unanimity on the issue, its failure to do so does not render the decision unreasonable.

[12] We are also not persuaded that the Tribunal misunderstood or failed to consider the medical evidence provided by the Applicant. The decision of the Tribunal indicates a thorough consideration of the medical and other evidence before it and a logical and reasoned basis for its findings of fact. Understandably, Ms. Tang disagrees with the conclusion reached by the Tribunal. She assesses the evidence differently. Indeed, her assessment of the evidence may be a reasonable one. But so too is the assessment provided by the Tribunal.

[13] We are also not satisfied that the Tribunal incorrectly required evidence of Ms. Tang’s total incapacity due to medical disability. The decision followed the Tribunal’s established approach to the evidentiary requirement when medical disability is offered as a good faith reason for delay – that the evidence must indicate the disability was so debilitating that it prevented the applicant from pursuing his or her legal rights before it. The Tribunal’s finding that the Applicant’s evidence did not meet that standard is entitled to deference.

[14] Lastly, we are not persuaded that the decisions of the Tribunal were tainted by animus or bias. That decision makers enjoy a strong presumption of impartiality is accepted law. To the extent the Applicant takes issue with the Tribunal’s wording in its reconsideration decision we find the wording to illustrate little more than a level of impatience with the arguments presented. Much more is required to dispel the strong presumption of impartiality. [See Kelly v. Palazzo, 2008 ONCA 82.]

Conclusion

[15] The Application for Judicial Review is dismissed. In accordance with the agreement reached by the parties, costs shall be payable by the Applicant in favour of New Horizons in the amount of $8,500, all inclusive.

R.D. Gordon J.

Sachs J.

Kristjanson J.

Date: October 6, 2021