Tola v. Toronto Transit Commission, 2022 ONSC 1891

CITATION: Tola v. Toronto Transit Commission, 2022 ONSC 1891

DIVISIONAL COURT FILE NO.: 759/21

DATE: 20220328

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Tesfaye Tola, Applicant

AND:

Toronto Transit Commission and Human Rights Tribunal of Ontario, Respondents

BEFORE: Swinton, Baltman and Nishikawa JJ.

COUNSEL: Ashley Wilson and Nick Papageorge, for the Applicant

Giuseppe Agostino, for the Respondent, Toronto Transit Commission

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

HEARD at Toronto (by videoconference): March 21, 2022

ENDORSEMENT

Nishikawa J.

Overview

[1] The Applicant brings an application for judicial review of two decisions of the Human Rights Tribunal of Ontario (the “Tribunal”). The first decision, dated January 16, 2020 (the “Decision”), denied the Applicant’s request to amend his application under the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) and dismissed his application on the basis that it has no reasonable prospect of success. The second decision dated August 18, 2021 (the “Reconsideration Decision”), dismissed the Applicant’s request for reconsideration. The Applicant seeks to quash both decisions on the basis that they are unreasonable.

[2] On September 2, 2016, the Applicant filed an application with the Tribunal alleging that the Respondent, the Toronto Transit Commission (“TTC”), discriminated against him with respect to employment on the basis of age, race, and/or colour contrary to the Code. The Applicant had applied for a job as a transit operator with the TTC in September 2015. After completing certain steps in the process, including an interview, he was advised on February 26, 2016 that he would not be hired.

[3] On December 8, 2016, the TTC filed a request for a summary hearing on the basis that the Application should be dismissed, as it had no reasonable prospect of success. On February 1, 2017, the Tribunal directed that a summary hearing be held pursuant to Rule 19A of the Tribunal’s Rules of Procedure to address whether the Application should be dismissed.

[4] The Applicant made a request to amend his application on April 1, 2017. The request to amend was also addressed at the summary hearing, which was held on October 29, 2019. The Applicant filed additional submissions on December 10, 2019 and January 2, 2020. The TTC responded to those submissions on December 10, 2019 and January 7, 2020 respectively.

The Decisions Under Review

[5] On January 16, 2020, Vice-Chair Annie McKendy denied the Applicant’s request to amend his application and dismissed the Application on the basis that it had no reasonable prospect of success. The Tribunal found that other than the TTC’s knowledge of the Applicant’s age, there was no further evidence to support a link between his age and the decision not to hire him. In addition, the Applicant provided no evidence to support his allegations of discrimination based on race or colour.

[6] On August 18, 2021, Vice-Chair Marla Burstyn denied the Applicant’s request for reconsideration. The Tribunal found that the Applicant failed to satisfy any of the threshold criteria justifying reconsideration, as provided in Rule 26 of the Tribunal’s Rules of Procedure, including that the Decision conflicted with established jurisprudence or the existence of factors that outweighed the public interest in the finality of decisions.

Issues

[7] This application for judicial review raises the following issues:

(a) What is the applicable standard of review?

(b) Was the Tribunal’s conclusion that the human rights Application had no reasonable prospect of success unreasonable?

(c) Did the Tribunal misapprehend the nature of the Applicant’s proposed amendments, rendering the Decision unreasonable?

(d) Was the Tribunal’s denial of the Applicant’s request to amend unreasonable?

Analysis

Standard of Review

[8] The Applicant and the TTC agree that decisions of the Tribunal are reviewable on a standard of reasonableness. The Tribunal’s position is that the appropriate standard of review is patent unreasonableness, as mandated by s. 45.8 of the Code. The Tribunal submits that this provision rebuts the presumption of reasonableness from Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 and that reviewing courts should respect legislated standards of review.[^1]

[9] For the reasons given by this court in Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632, the standard of review applicable to the Tribunal’s decisions is reasonableness. To be reasonable a decision must be based on reasoning that is both rational and logical and the reviewing court must be satisfied that “there is a line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Vavilov, at para. 102.

Was the Tribunal’s Conclusion that the Human Rights Application Had No Reasonable Prospect of Success Unreasonable?

[10] The Applicant submits that the Tribunal’s finding that the Application had no reasonable prospect of success was unreasonable because the Tribunal failed to apply the three-part test in Terra v. Dufferin-Peel Catholic School Board, 2015 HRTO 1657. In Terra, the Tribunal found that the following elements must be demonstrated to establish a prima facie case of discrimination on the basis of age: (i) the applicant was qualified for the particular employment; (ii) the applicant was not hired; and (iii) a considerably younger employee who was no better qualified than the applicant subsequently obtained the position.

[11] The Tribunal applied the relevant test. The Tribunal focussed on the third element and found that the Applicant failed to provide any details as to who was hired for the role. In fact, the Applicant had pleaded that he lacked specific knowledge of younger drivers being hired for the transit operator position. The Tribunal further found that the Applicant did not point to any evidence linking his failure to be hired with his age. The Tribunal also referenced previous decisions which found that an employer’s knowledge of an applicant’s age is not evidence that age was a factor in the employer’s decision: Bradley v. The City of Greater Sudbury (City), 2012 HRTO 2063, at paras. 104-106; Russell v. Toronto Transit Commission, 2016 HRTO 1392, at para. 20.

[12] While the Applicant argues that the Tribunal ought to have understood his allegation that the TTC hired less experienced drivers to mean younger drivers, there was no basis for the Tribunal to make such a finding.

[13] The Applicant further argues in finding no reasonable prospect of success, the Tribunal disregarded his statement that he had relevant email and text messages, photographs and recordings demonstrating “irregularities” in the TTC’s hiring process. The Tribunal specifically stated that the Applicant did not make submissions on the evidence he claimed to have of irregularities in the TTC’s hiring process. If the Applicant intended to rely on evidence of irregularities, it was up to the Applicant to adduce it. Despite numerous opportunities, the Applicant failed to do so.

[14] The Tribunal properly applied the standard from Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, which states that for an application to continue following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code. The Tribunal found that even if all of the facts alleged by the Applicant were accepted, he had not adduced evidence “beyond his own suspicions” that he was discriminated against on the basis of age, race, or colour.

[15] Accordingly, the finding that the Application had no reasonable prospect of success was reasonable.

Did the Tribunal Misapprehend the Nature of the Applicant’s Proposed Amendments?

[16] The Applicant submits that the proposed amendments were intended to clarify, particularize, and elaborate on the Applicant’s original allegations regarding the irregularities in the TTC’s hiring process, and that the Tribunal unduly focused on the conspiracy allegations and incorrectly stated that the Applicant was attempting to expand the complexity of the hearing and add a third party, Drake International, as a party.

[17] First, the Tribunal’s finding that the proposed amendments substantially related to the existence of an alleged conspiracy between the TTC, the London Transit Commission (LTC) and Drake International, an entity retained by the TTC to conduct reference checks,[^2] is entitled to deference. Second, the Tribunal did not misapprehend the nature of the proposed amendments. The Applicant had made no allegations against the LTC and only a passing reference to Drake International in his original Application. Moreover, the Applicant failed to show how his allegations against LTC and Drake International related to his allegation of discrimination against the TTC. The Tribunal’s finding that the nature of the proposed amendments would considerably expand the scope and complexity of the Application was reasonable.

[18] While the Applicant alleges that the TTC’s failure to hire him was in reprisal for his application against the LTC and/or Drake International, they are distinct entities. The TTC is not responsible for the hiring decisions of the LTC. The Tribunal generally refuses requests to amend to add facts relating to the hiring decisions of parties other than the respondent: Gynane v. Lakehead District School Board, 2012 HRTO 803.

Was the Tribunal’s Denial of the Applicant’s Request to Amend Unreasonable?

[19] The Applicant submits that the Tribunal erred in applying the one-year limitation period in s. 34 of the Code to find that his proposed amendments were out of time.

[20] Contrary to the Applicant’s submissions, the Tribunal referred to and applied the factors to be applied when considering requests to amend applications, which are the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the Respondent: Shahnazarov v. George Brown College, 2011 HRTO 1917; Arthur v. Canadian Tire Corporation, 2012 HRTO 1904.

[21] Moreover, it was reasonable and appropriate for the Tribunal to refer to the one-year timeframe in s. 34 of the Code in assessing the relevant factors, including the prejudice to the Respondent. See Gynane, at paras. 32-36.

[22] In addition, the Applicant submits that the Tribunal erred in presuming prejudice to the TTC. There was, however, evidence before the Tribunal that the TTC’s main witness, who interviewed the Applicant, conducts approximately 400 interviews per year and that he is unable to specifically recall what was discussed. The Tribunal’s finding of prejudice because of the passage of time was thus reasonable.

[23] Finally, while the Tribunal denied the Applicant’s request to amend, it expressly considered and provided reasons as to why the proposed amendments had no reasonable prospect of success. The Tribunal found that the amendments failed to point to “any evidence that his race, colour or age were a factor in why he was not subsequently hired.” The Tribunal also addressed the Applicant’s allegation that he was discriminated against on the basis of his place of origin and found that the interviewer’s question about his work experience in Ethiopia was not, on its own, sufficient to constitute evidence of discrimination.

Conclusion

[24] Accordingly, the application for judicial review is dismissed. At the hearing, counsel for the Applicant and the TTC agreed that the successful party should be entitled to $5,000 in costs of the application. The Tribunal sought no costs and requested that no costs be ordered against it. The Respondent, Toronto Transit Commission shall be entitled to $5,000 in costs of the application.

“Nishikawa J.”

I agree: “Swinton J.”

I agree: “Baltman J.”

Date: March 28, 2022

[^1]: The Tribunal takes this position on the standard of review in the event of an appeal and pending a decision in the appeal of this Court’s decision in Ontario v. Association of Ontario Midwives, 2020 ONSC 2839, which is currently under reserve before the Court of Appeal.

[^2]: The Applicant’s request to consolidate this application with his application against LTC and Drake International was previously dismissed: Tola v. London Transit Commission, 2018 HRTO 1069.