Court File and Parties

CITATION: Moore v. The Estate of Lou Ferro et al, 2022 ONSC 1343

DIVISIONAL COURT FILE NO.: DC-19-000401-BR

DATE: 20220301

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Justices H.E. Sachs, J.K. Trimble and G.W. King

BETWEEN:

Philton Moore Applicant

– and –

The Estate of Lou Ferro, Personally and C.O.B. as Ferro & Company, Ellen Helden and 1312788 Ontario Limited – and – The Human Rights Tribunal of Ontario Respondents

Counsel:

Self-Represented

Marek Tufman, for the Respondent Ellen Helden

Katia Snukal and Jason Tam, for The Human Rights Tribunal of Ontario

HEARD: Via Zoom from Hamilton, Ontario

Divisional Court Docket

Reasons for Decision

king j.

[1] This is an application for judicial review of the decision of the Human Rights Tribunal of Ontario (“HRTO”) dated March 22, 2019 (the “Decision”) and the reconsideration decision dated August 7, 2019 (the “Reconsideration Decision”).

[2] The claim was filed on September 13, 2012, pursuant to s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).

[3] The applicant alleged discrimination in employment by the respondents, the Estate of Lou Ferro, personally (“Ferro”) and carrying on business as Ferro & Company (“Ferro Law”), Ellen Helden (“Ms. Helden”) and 1312788 Ontario Limited (“131”), based on the following:

i. Race; ii. Colour; iii. Ancestry; iv. Place of Origin; v. Citizenship; vi. Ethnic Origin; vii. Age; and viii. Reprisal.

[4] Specifically, the applicant seeks the following:

a) An order quashing and setting aside portions of the decision of Vice-Chair Mark Hart of the Human Rights Tribunal of Ontario (“the HRTO” or “the Tribunal”), namely the decision dated March 22, 2019, bearing File No. 2012-12490-I (reconsidered on August 7, 2019).

b) A declaration that the Vice-Chair failed to have regard for the law concerning spoliation (Omnia prcesumuntur contra spoliatorem) or to follow the test for determining whether to draw an adverse inference due to spoliation or intentional withholding of relevant documents.

c) A declaration that the Vice-Chair failed to fulfill his statutory obligation under the Human Rights Code, R.S.O. 1990, c. H.19, in that he did not have regards to sections 40, 41, 43(2)1 and 43(9) thereof, so as to dispose of Application in a way which provided for “a fair, just” resolution of the merits of the application,” in accordance with the Tribunal’s rules which are to be liberally construed.

d) A declaration that the Vice-Chair’s Decision of March 22, 2019 (hereafter “the Decision”) was unreasonable, arbitrary, perverse, unfair; and an unlawfully fettering of statutory discretion, a capricious exercise of statutory power and judicial function, procedurally unfair, and incorrect on the facts and law.

e) An order of certioriari [sic] quashing those portions of the decision of the HRTO dismissing his complaint of discrimination, which portion held that the decision(s) not to hire the Applicant for any of the three roles (of February 9, June 15, and August 11, 2011) was not due to any form of discrimination that was “a determinative factor”.

f) Further, or in the alternative, a Declaration that the Decision contravened the HRTO’s own policies and Rules of Procedure, and the code itself (ss. 40, 41, 43(2)1, and 43(9)), and is therefore void.

g) Further, or in the alternative, a Declaration that the Decision contravened the principles of natural justice and procedural fairness.

h) With respect to the outcome of this application, the Applicant asks, if it is allowed, that the court set aside those parts of the Tribunal decision and allow the application on the issue of the findings that were adverse to the Applicant.

i) Costs of this Application.

BACKGROUND

i. The Complainant

[5] The applicant, Philton Moore, self identifies as a black man of Afro-Caribbean descent and a man of colour. At the relevant time, he was 45 years of age.

[6] He is a lawyer. He was called to the bar in the United Kingdom (“U.K.”) in 1998. After relocating to Canada, Mr. Moore took the necessary steps to become a qualified barrister and solicitor and was called to the Bar in Ontario in 2010. Mr. Moore was also trained in the U.K. as a nurse.

ii. The Job Application Process

[7] In 2011, Mr. Moore applied for a position as a Junior Litigation Associate with a law firm known as Ferro & Company. The earliest advertisement in evidence was dated March 21, 2011. The advertisement indicated the firm was looking for a “junior lawyer” and that “new calls are encouraged to apply”. As well, it stated that “only insurance litigation experience will be considered”.

[8] It is not disputed that the applicant was eligible to work in Canada and was a member in good standing of the Law Society of Ontario (as it is now called).

[9] The principal of Ferro & Company was Mr. Lou Ferro. The respondent, Ellen Helden, was Mr. Ferro’s spouse. Ms. Helden functioned as the office manager for Ferro Law. She was also the principal of the respondent, 131. That company was involved in the operation of the law firm.

[10] The job application process for the position sought by the applicant was extensive.

[11] Mr. Moore attended an orientation interview with Ferro Law’s Professional Services Liaison on January 20, 2011. The interviewer, C.P., informed Mr. Moore of the structure of the firm. At the end, the interviewer indicated Mr. Moore did not have personal injury legal experience but was told the firm provided training

[12] On February 9, 2011, the applicant attended a group interview with two other racialized individuals. Ms. Helden conducted the interview.

[13] The candidates were asked several questions on a wide variety of topics ranging from the Socratic versus Scientific methods of questioning to data management.

[14] At the end of the interview, the candidates were asked if they were still interested. All three, including the applicant, indicated their continued interest.

[15] Following the interview, Ms. Helden and four others graded the candidates. The applicant received two A’s, two B’s, and one C (from Ms. Helden). One of the assessors, J.D., gave Mr. Moore an A and noted that he appeared self-directed and saw value in his previous nursing experience.

[16] On March 8, 2011, Mr. Moore received an email from C.P. advising that she could not make him an offer at this time. The applicant responded by email inquiring what he could have done to improve his interview.

[17] Not having received a response, the applicant sent a further email to C.P. and Mr. Ferro on April 11, 2011, reiterating his request for feedback.

[18] Mr. Ferro responded to Mr. Moore that day and indicated things were busy at the firm but that they would look into reviewing the feedback.

[19] Mr. Moore sent a further follow-up email on June 13, 2011. He requested feedback and indicated he was still interested in a position with the firm.

[20] Mr. Ferro responded that same day. He confirmed that the outcome must have been disappointing but emphasized Mr. Moore did not have the experience they needed in their specialized practice area.

[21] Further email exchanges followed. Eventually, the applicant received an email from C.P. on June 14, 2011, which stated, “your timing and persistence, have paid off”. C.P. indicated the law firm had modified its strategy and that there might be a position that suited Mr. Moore’s skill set and experience. He was invited to attend an interview with Ms. Helden the next day. C.P. also left a voice message that same day confirming the same general information.

[22] Mr. Moore attended the interview on June 15, 2011. The interview was conducted by Ms. Helden and was lengthy. There were discussions regarding the applicant’s nursing and legal backgrounds in the U.K., as well as his move to Canada.

[23] Mr. Moore was told there were other candidates being considered for the position. This did not accord with his sense that he was being interviewed for a specific position relative to his background and experience.

[24] There was also discussion about his age and about adapting to Canada from the U.K.

[25] During the interview he was asked to review the Statutory Accident Benefits Regulation (“SAB”) following the interview and was directed to write a memo with respect to the medical/rehabilitation line.

[26] On June 24, 2011, Mr. Moore forwarded his SAB memo. He also commented on the extent of his nursing experience arising from his June 15, 2011 interview.

[27] On August 10, 2011, C.P. sent the applicant an email stating the firm was “in the final stages of [its] recruitment process”. He was invited to a meeting on August 11, 2011 at 1:00 p.m. to meet with senior staff and associates. There was also a follow-up phone call and message left for him confirming the meeting on August 11 to discuss “the integration process at Ferro and the experience of a new associate to further explore ‘fit’ for all parties”.

[28] At the time, the applicant was out of the country on vacation. He had indicated to C.P. in June that he would be away on vacation in August.

[29] On August 11, 2011, C.P. sent a further email and voicemail noting that he had not responded and commenting that he might be away. She asked him to call when he returned.

[30] The applicant became aware of the August 10 and 11, 2011 communications on August 14, 2011.

[31] On that date, the applicant sent an email to C.P. The email was three full single-spaced pages in length, contained 14 numbered paragraphs, and addressed numerous issues. The issues covered in that email are set out in detail at paras. 87–95 of the Vice-Chair’s decision.

[32] The applicant did not receive a response to that email. He then sent emails on August 29, 2011 and September 9, 2011 asking whether he was still being invited for an interview.

[33] On September 13, 2011, he received communication indicating that the position had been filled.

[34] In the end, Mr. Moore was not offered a position with the Ferro & Company.

iii. The Hearing Process

[35] While the application to the HRTO was filed in 2012, it was not until 2019 that the process was completed. There were a number of occurrences and factors that resulted in that lengthy process.

[36] In 2013, there was an unsuccessful Summary Hearing Application made to dismiss Mr. Moore’s application.

[37] The initial hearing in early 2014 was delayed due to the health of Mr. Ferro.

[38] In 2015, the Vice-Chair made an Interim Decision (2013 HRTO 2106) permitting the respondents to amend their response.

[39] In March of 2015, Mr. Ferro declared personal bankruptcy. He then passed away in June of 2015.

[40] In a Case Assessment Direction dated October 20, 2015, Vice-Chair Mark Hart directed that the proceeding was stayed against Mr. Ferro personally “unless and until an order from the Bankruptcy Court to the contrary is filed with this Tribunal”.

[41] As the hearing was about to commence on December 1, 2015, the trustee-in-bankruptcy for Mr. Ferro advised that “Ferro & Company” was not a separate legal entity. It was only a trade name used personally by Mr. Ferro.

[42] On December 1, 2015, the Vice-Chair issued a further Case Assessment Direction providing Mr. Moore with two weeks to bring proceedings in Bankruptcy Court to lift the stay of proceedings. That did not occur.

[43] On December 4, 2015, Mr. Moore filed a Request for Order and Notice of Constitutional Question. Mr. Moore asserted that the primary provision set out in s. 47(2) of the Code rendered the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 inoperable as it violated his rights under the Canadian Bill of Rights, S.C. 1960, c. 44.

[44] In a decision dated June 30, 2016 (2016 HRTO 873), the Vice-Chair denied this request and on January 4, 2017, he denied a reconsideration request (2017 HRTO 5).

[45] In an interim decision dated June 26, 2017 (2017 HRTO 739), Vice-Chair Hart determined that the applicant could continue to seek declaratory relief following a violation of his Code rights, as that was not covered by the statutory stay.

[46] In a further interim decision dated June 26, 2017, Vice-Chair Hart ordered the proceeding to continue as against the Estate of Lou Ferro in the absence of a litigation administrator.

[47] In total, through case management, the HRTO released 22 decisions in this matter under the following headings:

i) Case Assessment Decisions ii) Interim Decisions iii) Decisions on Liability and Remedy iv) Reconsideration Decisions

iv. The Hearing on Liability and Remedy

[48] The proceedings before the HRTO were heard and decided by Vice-Chair Hart.

[49] There were two witnesses: Mr. Moore and Ms. Helden.

[50] In his decision, Vice-Chair Hart identified, considered, and found that the applicant had not established violations of the Code on the basis of race, colour, ancestry, place of origin, ethnic origin, or citizenship.

[51] Specifically, the Vice-Chair addressed and discussed the following allegations:

a) Whether white candidates hired during the relevant period were only required to attend one interview while the two racialized candidates who were hired, as well as the applicant, were required to attend two interviews.

b) Whether the respondents preferred South Asian candidates over black candidates.

c) Whether racialized candidates were assessed to determine whether their presence in the workplace would create tension in a predominantly white firm as opposed to white candidates were not being assessed whether they would create tension.

d) Whether the applicant and two other racialized candidates were subjected to an assessment of their personality types and mental health during the group interview process while other candidates were not.

e) Whether the applicant was called for interviews on short notice, while others and in particular, white candidates, were not.

f) Whether the form of interview utilized by the respondents for white candidates was different than that which was used for racialized candidates.

Delay

[52] While the Vice-Chair dismissed a number of alleged Code violations, he made the following findings as against the estate of Mr. Ferro:

a) Mr. Ferro engaged in racial discrimination against the applicant in violation of his rights under s. 5(1) of the Code due to his failure to appropriately respond to the applicant’s allegations of discrimination as raised in his September 15, 2011 e-mail, and further by justifying his dismissive reaction on the basis of racial stereotypes and biases;

b) Mr. Ferro engaged in reprisal against the applicant in violation of his rights under s. 8 of the Code as a result of his dismissive and contemptuous response to the applicant’s allegations of discrimination, his abusive assault on the applicant’s professional abilities, and his gratuitous and unwarranted attacks on the applicant’s personal character; and

c) Mr. Ferro, acting as Ferro & Company, is vicariously liable for age discrimination against the applicant contrary to s. 5(1) of the Code in relation to the assessment of the applicant following the February 9, 2011 group interview, on the basis that an age-related factor was considered by the assessors in reaching the decision to deny a job to the applicant at that time, who were acting on behalf of Ferro & Company in that context.

[53] Due to the fact that Mr. Ferro had declared bankruptcy and there was a statutory stay of proceedings pursuant to the Bankruptcy and Insolvency Act, there could be nothing other than declaratory relief confirming the violation of Mr. Moore’s Code rights.

[54] The Vice-Chair also made findings as against Ms. Helden, in her personal capacity, as follows:

a) Ms. Helden personally violated the applicant’s right to be free from discrimination in employment because of age, contrary to s. 5(1) of the Code; and

b) Ms. Helden personally shall pay to the applicant the sum of $2,000 as compensation for injury to dignity, feelings and self-respect, with post-judgment interest at a rate of 3.0% per annum to run on any amount unpaid more that 30 days from the date of the Decision.

[55] The Vice-Chair also dismissed a claim for delay made by Ms. Helden.

[56] Mr. Moore sought a reconsideration of the decision on April 23, 2019. That request for reconsideration was denied by Vice-Chair Hart in a decision dated August 7, 2019.

ISSUES AND ANALYSIS

Preliminary Issue – Fresh Evidence

[57] The applicant filed material before this court that was not part of the hearing before the HRTO. Specifically, Mr. Moore filed an affidavit that included an exhibit of notes taken by the applicant’s wife during the proceedings.

[58] The applicant sought to admit this fresh evidence without leave of the court. That request was opposed by the respondent, Ms. Helden.

[59] Following oral submissions by the parties, the court determined that Mr. Moore would not be permitted to refer to his wife’s notes with reasons to follow.

[60] The criteria for permitting fresh evidence are set out in Palmer v. The Queen, [1980] 1 S.C.R. 759 (“Palmer”), at p. 775:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial…;

2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

3. The evidence must be credible in the sense that it is reasonably capable of belief; and

4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[61] The evidence proposed to be introduced by Mr. Moore satisfied none of the Palmer criteria.

[62] More specifically, with respect to the introduction of evidence of an attendee’s notes of a proceeding, in 142445 Ontario Limited (Utilities Kingston) v. The International Brotherhood of Electrical Workers (2009), 251 O.A.C. 62 (Div. Ct.), Swinton J. stated the following, at paras. 32 and 33:

If extensive affidavits can be filed on applications for judicial review in order to permit parties to challenge findings of fact before such tribunals, there would be a significant incentive for parties to seek judicial review since they would then attempt to reframe the evidence that was before the arbitrator. As a result, the process of judicial review is likely to be more prolonged and more costly.

Moreover, there may be real difficulties in trying to recreate the evidence before the tribunal, where the parties have conflicting views as to what has been said. Where there is a dispute about the evidence, the reviewing court will be put in the unfortunate position of trying to determine what the evidence was before the tribunal in order that it can decide whether the decision was unreasonable. Such a process is unfair to the administrative tribunal and undermines its role as a fact finder in a specialized area of expertise.

[63] In effect, Mr. Moore is attempting to present as fresh evidence notes taken by an observer of the HRTO proceedings. That is not a proper circumstance for the court to admit fresh evidence. For that reason, it was not permitted.

What is the Appropriate Legal Standard of Review?

i. Procedural Fairness

[64] On the issue of denial of procedural fairness, there is no standard of review. Rather, the court must decide if the requisite level of procedural fairness has been met considering the factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 (“Baker”), at paras 23–28: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individual affected; the legitimate expectations of the person challenging the decision; and the choice of procedure selected by the agency.

[65] As stated in London (City) v. Ayerswood Development Corp (2002), 167 O.A.C. 120 (C.A.), at para. 10, the court is “required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly.”

ii. Substantive Issues

Is the Test Patent Unreasonableness?

[66] The HRTO submitted that since the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 441 D.L.R. (4th) 1 (“Vavilov”), the appropriate standard of review to be applied to Tribunal decisions is that set out by the legislature, namely, patent unreasonableness. This court has already addressed this submission in a number of cases and has found that the standard of review remains reasonableness. The HRTO argued that a more recent decision of the Court of Appeal lent support to its view that the applicable standard of review was reasonableness. My colleague, Sachs J. addressed this issue in her dissent (not on this point) in the matter of Imperial Oil Limited v. Muhammad Haseeb and the Human Rights Tribunal of Ontario, 2021 ONSC 3868 where she stated, at para 51:

The HRTO appeared primarily for the purpose of making submissions on the standard of review. According to the HRTO, the Court of Appeal’s recent decision in Longueépée v. University of Waterloo, 2020 ONCA 830, lends support to its view that the applicable standard of review is patent unreasonableness. In Longueépée, the Court of Appeal found that the decision it was reviewing was both unreasonable and patently unreasonable. In view of this, the Court stated at para. 10 that “[i]t is both unnecessary and unwise in this appeal to determine whether, post-Vavilov, decisions of the HRTO are subject to a ‘patent unreasonableness’ standard of review, and indeed whether, in this context, a review for ‘patent unreasonableness’ is something different from a ‘reasonableness’ review.”

[67] I find that the appropriate standard of review to be applied is reasonableness.

Application for Judicial Review

[68] Mr. Moore raised approximately 20 issues on the application.

[69] These issues can be generally grouped as follows:

1. Did the HRTO misapprehend the evidence before it?
2. Did the HRTO commit errors in law and/or render an unreasonable decision by failing to apply or consider relevant case law?
3. Did the HRTO process breach the applicant’s right to natural justice and procedural fairness?

[70] There is a blurring in the applicant’s factum with respect to whether these issues pertain to procedural unfairness, errors of law, or errors reviewable on the basis of reasonableness.

1. Did the Vice-Chair Breach Procedural Fairness?

[71] The applicant submits that the Vice-Chair committed breaches of natural justice that affected the overall procedural fairness in a number of respects. Rather than determining the reason for the respondent law firm not hiring Mr. Moore, the Vice-Chair was biased and did not look at this evidence.

[72] I reject this submission. There is nothing on the face of the record that demonstrates or infers that the Vice-Chair had any pre-conceived view or was biased. As the trier of fact, the Vice-Chair reviewed the totality of the evidence.

[73] Based on the factors set out in Baker, it is clear that the process of the entire proceeding was fair.

[74] The Vice-Chair addressed the issues in the context of the scheme of the Code.

[75] In Baker, the Supreme Court stated the following, at para. 22:

Although the duty of [procedural] fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, … the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker.

[76] The grounds for finding bias or a reasonable apprehension of bias must be substantial and require cogent evidence to rebut the strong presumption of impartiality: see Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, 326 O.A.C. 301, at paras. 58–65.

[77] No such cogent evidence is apparent in this matter. The Vice-Chair conducted a thorough and balanced hearing. He made the necessary factual conclusions on the totality of the evidence. He accepted some portions of Ms. Helden’s evidence. He reviewed the extensive documentary and statistical evidence regarding the hiring/interview process.

[78] The applicant relies on the failure of the respondent to re-schedule the third interview as a glaring example of proof of this bias because the respondent pleaded the email was not the reason the firm did not hire him.

[79] However, at paras. 96 and 97 of his decision, the Vice-Chair states as follows:

At the hearing, I asked the applicant whether, in light of his August 14 e-mail, he realistically expected to be called in for a further interview. In response, the applicant stated that he viewed the invitation to a further interview as a sham, and that he did not think that the respondents really wanted him to come in for a further interview, given that it was set for the very next day. He testified that this would be his third interview, and he was told that the firm would still be assessing “fit”. He stated that in his mind, this did not sound like a genuine invitation. He identified his state of mind as being a mixture of confusion, frustration and suspicion. He thought that if he was going to attend a further interview, he wanted to pin down exactly what the firm wanted from him and what they were going top be assessing. He testified that what he was trying to convey through this e-mail was, if you are serious about inviting me to a further interview, then tell me what your concerns are.

In my view, given the length, tone and tenor of the applicant’s August 14 e-mail, no reasonable employer would have invited the applicant to a further interview, or responded to such an e-mail in anything other than a very summary fashion. This is not the kind of communication an employer would expect to receive from a candidate who remained interested in a job.

[80] The Vice-Chair clearly and fully addressed the issue of the August 14 email. There is no evidence to support a finding that his treatment of this evidence demonstrated bias.

2. Did the Vice-Chair Misapprehend the Evidence?

[81] Mr. Moore made numerous submissions that the Vice-Chair misapprehended the evidence. For example, he asserted that the Vice-Chair:

i) did not ground his conclusions regarding the February 9, 2011 interview in the evidence or submissions; ii) failed to consider the social science evidence; iii) erred in his interpretation of his C.V. and suitability for the position; iv) disregarded the arbitrariness of the group interview; v) failed to draw an adverse inference from other persons who conducted the interviews; and vi) failed to consider the totality of the evidence.

[82] There is no basis for the assertion that the Vice-Chair misapprehended the evidence and reached a conclusion that was not available to him on the evidentiary record before him. In reaching the conclusion he did it was not necessary for the Vice-Chair to deal with every aspect of the evidence. Mr. Moore’s submissions on judicial review amounted to no more than an attempt to go through his version of the evidentiary record and make submissions that this version supported a different conclusion.

[83] In order for the court to overturn the decision, the applicant must establish that the decision of the Vice-Chair was unreasonable.

[84] The nature of a reasonableness inquiry requires the reviewing court to respect the institutional expertise and experience of the decision-maker. As stated in Vavilov, at para. 15, the reviewing court must do the following:

In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place.

[85] Did the decision of the Vice-Chair fall within the range of reasonable outcomes? In a word, yes.

[86] In Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81, the task of this court is delineated, at para. 132:

The only issue on judicial review was whether the Vice-Chair’s decision fell within the range of reasonable outcomes. On judicial review it is not enough that the reviewing court be persuaded that one could arrive at a different decision based on the same evidentiary record. To succeed on judicial review in this case, it was necessary to show the tribunal could not reasonably arrive at the decision it did.

[87] On a review of the decision, I am not satisfied the applicant has established that there was no possible way the Vice-Chair could have arrived at the decision he made. The decision is thorough. The Vice-Chair addresses each of the issues raised by the applicant in a considered manner.

[88] On the totality of the evidence, he found the applicant had established certain violations of the Code relating to racial discrimination, age discrimination, and that Mr. Moore was the victim of a reprisal.

[89] With respect to other allegations and evidence, the Vice-Chair reached a decision that is rationally supported and conducted in accordance with the analytical framework set out in Toronto (City) Police Service v. Phipps, 2012 ONCA 155, 289 O.A.C. 163. The Court of Appeal for Ontario described the analysis thoroughly, at para. 12:

The onus rests on a complainant to establish the prohibited discrimination in accordance with the “prima facie” test. This description of the approach to establish discrimination comes from the decision of the Supreme Court of Canada in Ontario Human Rights Commission v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536, which was decided in the context of employment-related discrimination. In that case, the Supreme Court of Canada explained that “[a] prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer” from the person alleged to have discriminated (at p. 558). This means that the onus lies on the complainant to establish discrimination on the balance of probabilities and that, if the complainant does so, the evidentiary burden shifts to the respondent. See also Ontario (Director, Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, 269 O.A.C. 137.

3. Did the Vice-Chair commit errors in law?

[90] The applicant submits the Vice-Chair made a number of errors in law or rendered an unreasonable decision by failing to apply or consider relevant case law.

[91] The applicant submits these errors of law are subject to a standard of correctness. I disagree. First, the applicant’s arguments are largely questions of fact, not law. Second, subject to very limited exceptions (that do no apply here), questions of law are subject to review on a standard of reasonableness.

[92] I will review the issues asserted by the applicant as errors in law:

1. He failed to consider whether the respondent 1312788 was a common or related employer with Ferro & Company.

[93] This is a question of fact that was addressed by the Vice-Chair.

[94] At para. 49 of his decision, he addresses this very issue and status as follows:

… First, I find that the position for which the applicant was interviewed on June 15, 2011, was a position with Ferro & Company and not with the respondent numbered company. I make this finding on the basis of the contemporaneous e-mail from C.P. dated June 14, 2011, which makes reference to a change in strategy for filling the “Associate placements”. In my view, this supports that the position was an associate lawyer position with Ferro & Company, and not some other position with the numbered company. This is supported by the reference in C.P.’s voicemail message to the lawyers’ unit, which is a unit within Ferro & Company, and is consistent with the applicant’s own contemporaneous note that the position was with the “lawyer’s group”. On this basis, I find that there is no evidentiary foundation to support the applicant’s claim as against 1312788 Ontario Limited, which arises solely from the role for which he was interviewed on February 15, 2011. Accordingly, the claim is dismissed as against 1312788 Ontario Limited.

[95] This is a question of pure fact and it was reasonable.

2. He concluded that s. 23(1) of the Code was not infringed by the “NEW CALLS ONLY” advertisement by the respondents.

[96] The Vice-Chair fully and thoroughly addressed this issue at para. 181 of his decision.

[97] He concluded this did not directly or indirectly classify or indicate qualifications by a prohibited ground of discrimination.

[98] It was consistent with an employer seeking a candidate with a certain kind of work experience.

[99] He also addressed the fact that while the applicant was a “new call” he was older. While most new calls would be younger, this indication did not limit the pool of applicants to persons of a certain age such that it might violate ss. 5(1) and 23(1) of the Code.

[100] Again, the Vice-Chair’s conclusion on this issue was reasonable.

3. He failed to draw an adverse inference from the failure of the respondents to produce interview notes.

[101] The Vice-Chair was not obliged legally to draw an adverse inference from the failure of the respondents to produce interview notes. The Vice-Chair was entitled to conduct the hearing in the manner he did and reach his conclusions based on the totality of the evidence he heard or did not hear.

4. He failed to conduct an analysis as prescribed in Shakes v. Rex Pak Ltd., 1981 CarswellOnt 3407 (“Shakes”). More specifically, he did not require a comparison between appraisals of all clients.

[102] The Shakes test referenced by the applicant sets out criteria for establishing a prima facie case of discrimination in the hiring process, as follows:

1. The complainant was qualified for the particular employment;

2. The complainant was not hired; and

3. Someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.

[103] If these conditions are met, then a prima facie case of discrimination has been made out, in the absence of any response from the responding party.

[104] Assuming the applicant satisfied criteria #1 and #2 above, there was no evidence to satisfy criteria #3 with respect to the February hiring process.

[105] This was a factual determination. The Vice-Chair reviewed the extensive evidence regarding the interviews of all the candidates. He concluded at para. 176 that there were numerous factors that were discussed by the assessors in relation to the three candidates at the group interview. Ultimately, this caused the assessors as a group to decide that the firm needed a better pool of candidates and to not proceed with those candidates at that time. He also concluded that no candidate was hired at that time. The Vice-Chair’s conclusions on the issue were reasonably available to him on the evidence before him.

CONCLUSION

[106] There is no basis to conclude that the Vice-Chair’s decisions were unreasonable or procedurally unfair.

[107] He conducted a thorough hearing. There was no bias in the conduct of the case. Both his legal analysis and factual findings were reasonable. His conclusions fell well within the range of acceptable outcomes.

[108] He made findings of age discrimination, racial discrimination, and reprisal. He made the appropriate declarations available in the context of the Bankruptcy and Insolvency Act and awarded damages as against Ms. Helden.

[109] There is no basis to overturn the decision. The application is dismissed.

COSTS

[110] The respondent, HRTO, seeks no costs.

[111] The respondent, Ellen Helden, is awarded costs in the amount of $4,000, all inclusive.

George W. King Justice

I agree, H.E. Sachs Justice

I agree, Jamie K. Trimble Date: March 1, 2022 Justice

Released: March 1, 2022