Court File and Parties

CITATION: Chen v. Western University, 2022 ONSC 6698

DIVISIONAL COURT FILE NO.: 026/20

DATE: 20221202

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Lederer and Nishikawa JJ

BETWEEN:

SHIH-FEN CHEN

Applicant

– and –

WESTERN UNIVERSITY, HUMAN RIGHTS TRIBUNAL OF ONTARIO, and ATTORNEY GENERAL FOR ONTARIO

Respondents

COUNSEL:

Justin Amaral, for the Applicant

Elisha Jamieson-Davies, for the Respondent, Western University

Brian Blumenthal, for the Human Rights Tribunal of Ontario

No one for the Attorney General for Ontario

HEARD at Toronto by video: September 29, 2022

Reasons for Judgment

Lederer J.

Background

[1] The applicant, Shih-Fen Chen was a tenured member of the faculty of the business school associated with the respondent, Western University. He filed an application with the Human Rights Tribunal of Ontario (“HRTO”) alleging that he had been discriminated against, contrary to the Human Rights Code,[^1] with respect to employment because of race and ethnic origin:

5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.[^2]

[Emphasis added]

[2] The commencement of an application does not bring with it an absolute right to a hearing on the merits; there are some limits. Where, as in this case, an application is brought forward by a “person” the legislation requires that it be commenced within a year of the incident or incidents on which it is founded:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. [^3]

[3] There is a further limitation. This one touches on the merits of an application. The Human Rights Code empowers the HRTO to make rules that will govern its proceedings.[^4] The HRTO has promulgated Rules of Procedure. Rule 19A of its “specific Rules” deals with Summary Hearings, it begins with Rule 19.1A[^5]:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

[Emphasis added]

[4] The Rules of Procedure provide when and how any request for an Order during proceedings is to be made:

19.1 A party may request that the Tribunal make an order at any time during a proceeding by oral submission in the course of a hearing or by written request.

19.2 Where a request is made in writing, it must be made in Form 10, Request for Order during Proceedings (“Request for Order”) and must be delivered to all parties and any person or organization who may have an interest in the request and filed with the Tribunal.

[5] In this case, the Application was made on September 29, 2016. It referred to the last event of the alleged breach of the Code as having taken place on March 18, 2016[^6], well within a year of the date the Application was commenced. The Application makes no reference to what is said to have happened on that day. On January 18, 2017, in response to the Application, the university (the Respondent) delivered a Request for Order During Proceedings (Form 10) asking the HRTO to dismiss the Application on the basis that it was outside the stated time limit.[^7] In making this request the university noted that the Application made by Shih-Fen Chen related primarily to events which occurred between the spring of 2014 and the summer of 2015. Specifically, Shih-Fen Chen had alleged that he had been subject to discrimination through actions in:

(a) implementing a private workshop policy in July 2014;

(b) denying his request for sabbatical leave in November 2014; and

(c) launching an investigation on June 8, 2015 into the allegations of workplace harassment perpetrated by Shih-Fen Chen.[^8]

[6] On the same day the university filed a “Respondent’s Request for a Summary Hearing”.[^9] As part of this request the university asked that the Application made by Shih-Fen Chen on September 29, 2016 be dismissed in its entirety as having no reasonable prospect of success.[^10]

[7] On January 31, 2017, Shih-Fen Chen (the Applicant) filed a response to the Request for Order during Proceedings. He denied that the Application was out of time and identified what he understood to be, and submitted was, a “series of incidents” which carried through to November 23, 2015 which he identified as the day the university informed him that following from an investigator’s report, a copy of which had been provided to him, he would be subjected to a number of disciplinary penalties.[^11] It will be readily apparent that the day the Application was filed (September 29, 2016) was less than a year later and within the time frame set by s. 34(1) of the Human Rights Code.

[8] Nearly a year later, on October 20, 2017 the HRTO issued a Case Assessment Direction requiring that the parties attend a summary hearing to determine whether the Application should be dismissed, in whole or in part, on the basis that some or all of the allegations were out of time and because the Application had no reasonable prospect of success.[^12] In the Case Assessment Direction the HRTO indicated that its Registrar “will schedule a half day hearing by conference call” and that the “parties will receive a Notice of Hearing, setting out the time, date and telephone numbers for the preliminary hearing”. The Case Assessment Direction goes on to note that the parties would not be submitting evidence for the purpose of the summary hearing portion of the preliminary hearing. This being so, the issue of delay was to be, and was, decided entirely on the facts and documents contained in the Application, the response to the Application, the Request for an Order During Proceedings and the response to that request. Accordingly, no witnesses were called and no evidence was introduced.[^13] Strangely, the date on which this conference call apparently took place does not appear to be referred to anywhere in the Record. That being said the Decision of the HRTO in respect of the summary hearing was dated and presumably was released on January 31, 2019.[^14]

The Decision

[9] The Decision determined that the “series of incidents” on which the allegations of discrimination by the university were based, going back to 2014, ended on June 8, 2015. On that day the Dean had commenced an internal workplace harassment complaint against Shih-Fen Chen. The Decision notes the assertion of Shih-Fen Chen that during the period from May 2014 to approximately June 2015, the Dean unfairly characterized his complaints about fairness as “playing the race card”, and engaged in bullying and intimidating him. In coming to its Decision, the Vice-Chair of the HRTO was careful to avoid making any findings of fact but acknowledged that the harassment complaint that had been made by the Dean against Shih-Fen Chen could be construed as continuing the alleged bullying and intimidation. The allegations made by the Dean caused the university to retain a law firm to conduct the investigation (an independent investigation) of those allegations. As found by the HRTO the allegations made by Shih-Fen Chen that followed thereafter, pertained to the investigation report and the subsequent discipline. Those later allegations were found by the HRTO to be different in nature and kind compared to those asserted in respect of the period from May 2014 to June 2015.[^15] It is on this understanding that the HRTO determined that the “series of incidents” ended on June 8, 2015. Thus, the Application, commenced as it was on September 29, 2016, was more than one year later and out of time with respect to these allegations.

[10] The allegations that arose from the independent investigation (that is to say after June 8, 2015) were in relation to the conduct of a third party (the law firm) which was not named as a respondent in the application made by Shih-Fen Chen. Moreover, there was no allegation of any statement, event, incident or occurrence that would support the presence of bias in the investigation or investigator.[^16] During November 2015, the university disciplined Shih-Fen Chen. This was further to the findings outlined in the investigation report. The university (the “Respondent”) imposed this discipline because the report supported that approach. As found by the HRTO, Shih-Fen Chen was not able to point to any allegation of fact that supports a conclusion that the imposition of discipline pursuant to the report was discriminatory. On this basis the HRTO found that the allegations made by Shih-Fen Chen had no reasonable prospect of success, and as such could not form part of a “series of incidents”[^17].

[11] Consistent with s. 34(2) of the Human Rights Code the HRTO went on to consider whether Shih-Fen Chen had a good faith reason for delay in filing the Application. In such circumstances the applicant is required to provide:

• some reasonable explanation for the delay,

• to show something more than simply an absence of bad faith, and

• to act with due diligence when seeking to pursue a human rights claim.[^18]

[12] The HRTO reviewed the submissions of Shih-Fen Chen. He had submitted that he did not file his application earlier because he was hopeful that the independent investigation would support his allegations of discrimination and that his union would file a grievance regarding his allegations of discriminatory conduct by the university. The HRTO noted that it had repeatedly held that persons who feel that their rights have been violated are expected to file an application within the one-year time limit specified in the Human Rights Code even if it means that they are seeking redress from two different entities. As a result, the HRTO found that Shih-Fen Chen had not demonstrated that the delay in filing his Application had been incurred in good faith.[^19]

[13] The decision of the HRTO dismissed the Application in its entirety.

Reconsideration

[14] Under s.45.7 of the Human Rights Code, the HRTO may be asked to, or may on its own decide to, reconsider a decision it has made:

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

[15] Rule 26 of the HRTO’s Rules of Procedure governs such requests:

26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the 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 to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict 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 HRTO has issued a Practice Direction to provide guidance on the exercise of its reconsideration powers. The Practice Direction states that reconsideration is a discretionary remedy; that there is no right to have a decision reconsidered and affirms that reconsideration is not an appeal or an opportunity for a party to change the way he or she presented their case.[^20]

[17] On March 4, 2019, Shih-Fen Chen requested that the Decision of the HRTO be reconsidered. It was. The Reconsideration Decision of the HRTO was released on October 15, 2020.[^21] It restated the position as put by Shih-Fen Chen in his submissions. He saw (and sees) a connection between the allegations of bullying and intimidation by the Dean and the subsequent investigation and discipline. They were, in the view of Shih-Fen Chen, part of the same “series of incidents”. As he sees it, the concerns he raised alleging unfair treatment were distorted into false accusations of racism (“playing the race card”) which led to a flawed investigation which was used to justify the discipline that was imposed.[^22]

[18] As perceived by Shih-Fen Chen the problem arose because the HRTO, in its decision had failed to accept his allegations as true. Had it done so it would have accepted his stated position. The HRTO understood its obligation but pointed to the difference between accepting that the incidents relied on occurred and accepting that those incidents occurred for discriminatory reasons. The obligation to accept the factual assertions does not include an acceptance that they demonstrate the presence of discrimination:

Put differently, this does not require the Tribunal to simply accept the applicant’s theory of his case. The applicant must point to evidence to show discrimination.[^23]

[19] As understood by the HRTO in undertaking the Reconsideration, the approach taken by Shih-Fen Chen was to submit that, understood as he saw it, the “evidence” did demonstrate that all the allegations are connected. He provided “many examples of how he believes the Tribunal committed errors in law and in mixed fact and law….” In effect he sought to have the Reconsideration override the Decision by accepting his theory of the case. The HRTO found this to be an improper use of the authority to reconsider; it was an attempt to appeal the decision that had been made.[^24] The Request for Reconsideration was denied.

[20] On this judicial review Shih-Fen Chen seeks to set aside both the Decision and the Reconsideration.

Issues

[21] The issues on this judicial review are those put forward on behalf of the university:

(a) What is the applicable standard of review?

(b) Was the Decision reasonable?

(c) Was the Reconsideration Decision reasonable?

(d) Was there a breach of procedural fairness?

Standard of Review

[22] The answer to the first of the four issues is correctly presumed in the statements of the second and third issue. The applicable standard of review is reasonableness.

[23] There has for some time been a controversy over the standard of review applicable to decisions of the HRTO. The Human Rights Code includes a privative clause:

45.8 Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, 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.

[Emphasis added]

[24] The HRTO has argued that this clause is the imposition of a statutory standard of review and that, as a result, the appliable standard is the one referred to in this clause being “patent unreasonableness”.

[25] In December 2006, significant amendments were made to the Human Rights Code[^25]. These amendments clarified that the HRTO is a specialized tribunal responsible to resolve human rights complaints. The amendments removed the right of appeal and added s. 45.8, the privative clause quoted above. With the release of Dunsmuir v. New Brunswick[^26] which served to reduce what had been three standards of review (correctness, reasonableness and patently unreasonable) to only two (correctness and reasonableness) the standard of review in matters concerning the Human Rights Code was understood to be reasonableness. This was the finding made in Shaw v. Phipps[^27]. While the reasonableness standard does not exist on a spectrum or continuum, it takes its colour from the context within which it applies. This means that the range of possible and acceptable outcomes expands or contracts depending on factors such as whether there is a privative clause, the nature of the question, and the decision-maker’s purpose and expertise.

[26] In the interim the Supreme Court of Canada released its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov[^28] which determined that “reasonableness” is the presumptive standard of review for judicial review. There are exceptions where required by “clear indication of legislative intent or by rule of law”.[^29] Vavilov reaffirmed the importance of legislative intent when determining the applicable standard of review, describing legislative intent as the “polar star” of judicial review.[^30] On this foundation the HRTO, in a broad array of cases, submitted that Vavilov served to override the finding in Shaw v. Phipps and that s. 45.8 of the Human Rights Code should be understood as an expression of legislative intent concerning the standard of review to be applied to decisions of the HRTO. These submissions called on the courts to reintroduce and accept patently unreasonable as the standard of review. The Court of Appeal recently dealt with the issue in Ontario (Health) v. Association of Ontario Midwives.[^31] The decision was released on June 13, 2022. The Court of Appeal undertook a review of the decision of the Divisional Court in Shaw v. Phipps. It noted that the analysis recognized that the legislature intended that the highest degree of deference was to be accorded to the decisions of the HRTO, its “determination of facts, its interpretation and application of human rights law, and decisions on remedy.”[^32] The Court of Appeal accepted that:

…the assimilation of patent unreasonableness to reasonableness does no violence to legislative intent[^33]

and concluded that:

…the Divisional Court’s approach to the interpretation of s. 45.8 in Shaw v. Phipps is entirely consistent with Vavilov. The Divisional Court in Shaw v. Phipps did exactly what Vavilov instructs us to do now.[^34]

[27] The Court of Appeal confirmed that the standard of review of the decisions of the HRTO is reasonableness, now informed by the guidance provided in Vavilov.[^35]

[28] What makes a decision reasonable? Pursuant to Vavilov, where reasons are required, as they are here, they are the starting point for a reasonableness review. They are the primary mechanism by which administrative decision makers show that their decisions are reasonable — both to the affected parties and to the reviewing courts.[^36] A reasonable decision is one that is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrain the decision maker.[^37] Vavilov identifies “the hallmarks of reasonableness” as justification, transparency and intelligibility.[^38] It is not enough that reasons demonstrate that a decision is justifiable; rather the decision must be justified by way of those reasons. [^39]

Was the Decision Reasonable

[29] The Decision was made in response to a Request for Order During Proceedings and dealt with in a summary hearing. The question is whether the Application, insofar as it deals with allegations that raised a concern that the university had discriminated against the applicant, was out of time.

[30] At the summary hearing, no witnesses were called and no evidence was introduced.[^40] The issue of delay was decided entirely on the facts and documents contained in the Application, the response to the Application, the Request for an Order During Proceeding, the response to that request and relevant case law. The facts as alleged were to be accepted as if proved.

[31] What this demonstrates is that the issues to be determined were narrow. Was there a “series of incidents” demonstrated by what was alleged through the Application, the Request for an Order and the responses to those requests and, if there was, over what period of time did it extend.

[32] The Application filed on September 29, 2016 alleged a series of incidents commencing during May 2014 and culminating on November 23, 2015, as follows:

(a) May 2014: Exchanges between the Applicant and then Dean of the Ivey Business School about a new policy, in which the Applicant expressed concerns that he was unfairly treated.

(b) November 2014: the Dean’s denial of the Applicant’s sabbatical leave application, which resulted in the Applicant expressing concerns about unfair treatment.

(c) June 2015: the Dean’s initiation of an internal workplace harassment complaint against the Applicant.

(d) June 2015: Commencement of a third-party investigation into the Dean’s complaint.

(e) October 2015: Receipt of the third-party investigator’s report.

(f) November 2015: Disciplinary sanctions that flowed from the findings in the third-party investigation report.[^41]

[33] The paragraphs and pages of the Application that report these events are replete with allegations concerning actions by the Dean, many but not all of unfair treatment and mistreatment of Shih-Fen Chen.

[34] The change in policy respecting workshops (paragraph (a) above) was part of an effort to centralize workshops that used or took advantage of the Ivey Business School brand. The Application alleges that this grew into unfair treatment of Shih-Fen Chen and included activity that “could have been construed as invoking my race or ethnic background”.[^42] It refers to what Shih-Fen Chen describes as false accusations made by the Dean who is alleged to have said:

…it does not help your case when you constantly assert that you are being singled out, treated differently, and discriminated against. You have made such assertion in nearly every conversation we have ever had, I am tired of having to cover this ground with you, and I know Rod White and Paul Beamish are as well…[^43]

[35] The Application alleges that there were racial overtones to these interactions that were dispensed with by the Dean on the basis that Shih-Fen Chen had falsely accused the Dean of racial bias arising from his ethnic background.[^44]

[36] The refusal of the request for a sabbatical leave (paragraph (b) above) arose first from an apparent failure on the part of Shih-Fen Chen to properly complete the forms and subsequently on what Shih-Fen Chen sees as unfair and arbitrary treatment of his research, personal attacks and a misinterpretation of the applicable Collective Agreement.[^45] In response to a note sent by Shih-Fen Chen to the Dean in preparation for a meeting to discuss the sabbatical application, it is said that the Dean “went back to personal attacks”[^46] and “once again exploited my ethnic background”.[^47]

[37] As for the Dean’s harassment complaint (paragraphs (c) and (d) above) concerning the actions of Shih-Fen Chen, the latter points out that the investigator was retained by, and paid for by the university, acted as a surrogate of the university to assemble allegations the Dean had not documented and “purported” to undertake an independent investigation of those allegations.[^48] As seen by Shih-Fen Chen this was a “fishing expedition” where the Dean made false allegations against him and inflated the number of victims.[^49]

[38] The decision made by the HRTO was that the commencement of the investigation, in June 2015, of the complaints made by the Dean against Shih-Fen Chen was the end of the applicable series of incidents and that, as a result, the Application made on September 29, 2016, was out of time. The issue is whether that finding was, in the circumstances reasonable. If it was, it doesn’t matter whether the actions of the Dean were or were not discriminatory. The Application was too late.

[39] The position of Shih-Fen Chen is that the determination made as to the end of the series of incidents was not reasonable. As he sees it, the series of incidents continued.

[40] On June 8, 2015, the Dean filed the harassment complaint which, the Application of September 29, 2016 says, accused Shih-Fen Chen of making false accusations of racism against him[^50] and others.[^51] Shih-Fen Chen says this was all in retaliation for his having challenged the Dean’s “unfair treatment of me”.[^52] The Application of Shih-Fen Chen says that the 30 “others” apparently noted in the complaint or added thereafter “did not exist”[^53]and that the 12 people the Dean proposed be interviewed were himself, Paul Beamish (who was a colleague of Shih-Fen Chen who served in multiple administrative positions at Ivey) and, with one exception, people who worked with the Dean or Paul Beamish.[^54] Shih-Fen Chen is of the view that all of this furthers his allegations of discrimination. He believes that this demonstrates that the series of events continued. The university responded by appointing an outside law firm to conduct the investigation into the complaint. Shih-Fen Chen believes that this confirms the complicity of the university:

With these procedural errors, Western appointed an external investigator anyway.[^55]

[Emphasis added]

[41] The investigation was undertaken to assess the actions of Shih-Fen Chen and whether and how they contributed to the difficulties in the relationship between the Dean and Shih-Fen Chen. Even before entering into any analysis, I observe that an investigation by an independent party is not an uncommon means by which disputes of this sort are examined. The complaints made by Shih-Fen Chen as to unfairness of the appointment of the investigators suggest he understood the investigation not to be directed to determining the facts but to prosecuting him for those alleged but unproved wrongs. In the Application he says:

The investigator who was retained and paid for by Western on whose behalf the complaint was filed, did not dismiss the allegations on the ground that no particulars were provided to support them.[^56]

[42] The investigation concluded that the Dean and four others had been the subject of unfounded attacks by Shih-Fen Chen. It concluded that:

• My allegations of bias against Kennedy [the Dean] were malicious and unfounded, and were calculated to cause distress and intimidation.

• I showed persistent, abusive behaviors, in the form of verbal confrontations, toward four staff members, three working under Kennedy and one under Beamish.[^57]

[43] The response of Shih-Fen Chen was to allege that the investigation was itself part of the discrimination to which he was subjected by the university, and, accordingly, a continuation of the series of incidents.

… the investigator acted as a surrogate of the Western to assemble the allegations that Kennedy [the Dean] had failed to document. The investigator then purported to conduct an independent investigation of the same allegations. Simply put, he played double roles in this investigation: first as a prosecutor to indict me and second as a judge trying me, also violated the Article [of the Collective Agreement] (section 11).[^58]

[44] In furtherance of this position, Shih-Fen Chen attacks the substance of the investigation suggesting that it was deeply flawed and inaccurate, but, in the Application, as filed, does not suggest that this is in some way the result of discrimination.[^59] Nonetheless, the substance of the position taken by Shih-Fen Chen is that the investigation constitutes a part of a continuing series of incidents that stretches back to 2014 and the treatment of Shih-Fen Chen in connection with the disputes over the centralizing of workshops and his request for a sabbatical leave. In his view the finding to the contrary was unreasonable.

[45] What is a “series of incidents”:

…in order to constitute a “series of incidents” within the meaning of s. 34(1) of the Code, there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues.[^60]

In my view, all of the allegations raised by the applicant in the new Application share this common theme [the experience of being marginalized as a racialized employee and the reprisals in response to having filed a human rights complaint against the respondents] which provides a sufficient connection or nexus between these allegations to support a finding that they all form a “series of incidents” within the meaning of s. 34(1)(b).[^61]

…recent Tribunal decisions have held that a series cannot be comprised of incidents relating to discrete and separate issues.[^62]

[46] In considering the circumstances of this case, the HRTO first described the positions taken by Shih-Fen Chen:

…that [the] incidents [as referred to in para. [32] above] were similar in nature and kind …crystalized when he received the investigation report on October 29, 2015 [and acknowledged that] nonetheless…the investigation report is an incident of discrimination,[^63]

and, then, the position of the university:

that the allegations outlined in paragraphs 8a-c are a discrete set of incidents that ended in April 2015; namely email exchanges between [Shih-Fen Chen] and the Dean…that the harassment complaint in June 2015 is a distinct incident of discrimination…the investigation by a third party, the findings of that party, and the imposition of discipline as a result of the report are not discriminatory events.[^64]

[47] The HRTO accepted the position common to both parties, that the complaint filed by the Dean on June 8, 2015 was or “could be construed as a continuation of the alleged bullying and intimidation” (the acts of the Dean said by Shih-Fen Chen to be discriminatory):

These allegations are similar in nature and kind, namely that the respondent through one or more of its employees sought to engage in bullying behaviour.

[48] The HRTO goes on to find that regardless of whether the allegation that the third-party investigation, which commenced later in June 2015, was somehow biased in favour of the university is true or not, that the allegation differs in nature and kind from the allegations that cover May 2014 to June 8, 2015. Why? As expressed by the HRTO, because the actions reflected on the conduct of what is referred to as a third party. In this case, a party which was investigating the actions of Shih-Fen Chen as opposed to actions of the Dean. The investigation was separate from the acts (or alleged acts) that it inquired into.

[49] The Factum filed on behalf of Shih-Fen Chen refers to what it calls “facts” which it says demonstrate that the finding that the investigation and the report differ in nature and kind from what went on before is unjustified. What they actually do is verify the difference:

• The investigator was only appointed after a number of procedural errors were made during the internal investigation.

• As already referred to herein, the investigator did not dismiss the complaint against Shih-Fen Chen for want of particulars or the failure to make out a prima facie case when the applicable policy required such a determination before carrying out an investigation.

• The investigator prepared a lengthy and costly report on the basis of one short complaint by the Dean identified as the perpetrator of other acts of discrimination. [Emphasis added]

• The investigator ignored relevant evidence.

• The investigator characterized behaviour of Shih-Fen Chen as aggressive which he says is demonstrative of the racial stereotyping of Asian men.[^65]

[50] All of this reflects on the actions and supposed failures of the investigator in the course of conducting the investigation. None reflect on the actions of the Dean which occurred in the earlier time frame. The issues it raises are “discrete and separate”. There is no common theme: one deals with the application of policies affecting the faculty at the business school (centralizing workshops that use the Ivey brand and requests for sabbatical leaves) and the other, the conduct of an investigation of a complaint made by the Dean. As the Factum states, the latter allege “other acts of discrimination”. The necessary nexus or connection is not present. The decision taken by the HRTO was reasonable and the resulting finding that the allegations of discrimination up to and including the making of the complaint by the Dean on June 8, 2015 were out of time when raised in the application dated September, 29, 2016 appropriate.

[51] As noted above, the HRTO went on to consider whether section 34(2) of the Human Rights Code applied. Did the delay occur in good faith and without substantial prejudice to any person affected by the delay? The HRTO found that Shih-Fen Chen had not provided any good faith explanation for the delay and, accordingly did not address the question of whether the university had been subjected to any prejudice.[^66] The Factum filed on behalf of Shih-Fen Chen makes no reference to this statutory provision and so I make no further comment.

[52] The question remains as to whether the complaints made by Shih-Fen Chen as to the investigation stand on their own as a complaint that should have been allowed to proceed. Such a complaint would not be excluded or dismissed as being late and out of time. I return to the understanding that the alleged facts, which on summary hearing, are taken as proved, do not necessarily extend to an acceptance of the motivation or characterization of those facts, in this case, as discriminatory. What is submitted is that the investigation was a “sham” and that the investigation and the investigator were “biased”. The HRTO acknowledged that Shih-Fen Chen submitted that the findings of fact made by the investigator were “inaccurate” and “somehow biased in favour of the respondent.”[^67] Its Decision goes on to say this refers to “the conduct of a third party who is not named as a respondent” and that Shih-Fen Chen “has not pointed to any evidence that he has, or would be reasonably available to him to support his assertions pertaining to the investigator’s alleged bias.” I understand “evidence” to refer first to the facts to be treated as proved and to evidence that would be reasonably but was not at the time, available to Shih-Fen Chen to support his allegations of bias. The HRTO found there were no such established facts and no allegation of facts that would be (or could be) reasonably anticipated to be demonstrated by evidence that was not yet available.

[53] In this judicial review it is submitted that “it was probable that on cross-examination…that this was in fact an instance of ‘case building’ or that the Investigator had characterized certain behaviour as a result of conscious or unconscious bias”[^68]. It is not enough to simply make such statements. There has to be some fact or statement not that suggests it could have happened but rather supports the prospect that it did happen or, as suggested, was at least “probable”. The factum filed on behalf of Shih-Fen Chen goes on:

Indeed, it is usually the case that the evidence pointing to a “sham investigation” is in the exclusive possession of the party that conducted or requested the investigation and that the flaws and errors are only identified through cross-examination or the production of documents not otherwise in the Applicant’s possession. The allegation is a common one in cases involving workplace investigations, namely, that the investigation was, at best, incompetent and unfair and, at worst, a “sham investigation” (i.e. it was procedurally flawed, conducted in bad faith, investigated with bias (including racial bias), investigated toward a predetermined outcome/clear example of “case building”, designed to support Western University’s false allegations of racism). In other words, the Dean’s complaint was made in bad faith and the investigation that resulted from that complaint was conducted in bad faith.[^69]

[54] What is the foundation for all of this? The allegations that an investigation was incompetent and unfair or a sham is not uncommon and from there a series of conclusions that this one was procedurally flawed, conducted in bad faith with bias and toward a predetermined outcome. These are not facts to be taken as proved. If they are to be accepted as such an Applicant would need to do nothing more than allege bias and bad faith to avoid a summary dismissal of an application and require a full hearing. These statements are not facts; they are conclusions that demonstrate Shih-Fen Chen’s theory of the case. In effect the HRTO found that the allegations of the investigation as a sham or biased were unsupported and were nothing more than bare assertions. While the HRTO is obliged to accept facts as proved, it is not required to accept the applicant’s assumptions as to why those facts occurred.[^70] There must be a basis beyond mere speculation and accusations to believe the Applicant could show a breach of the Human Rights Code.[^71] It was open to the HRTO, and reasonable for it, to find, as it did, that based on the facts taken to be proved there was no reasonable prospect that the Application or any part of the Application respecting the investigation and discipline would succeed.

Was the Decision Procedurally Unfair

[55] It is submitted on behalf of Shih-Fen Chen that the HRTO breached the duty of procedural fairness. In the Factum filed on his behalf it was submitted that this and the substantive errors overlapped and thus were dealt with in a single set of submissions.[^72] This understanding points to the problem with the submission. As a general matter, issues of process and concerns of substance do not overlap. The first deals with how the case is brought to a hearing, and how the hearing is conducted. The second reflects on the merits, that is to say the principles involved and the application of those principles to the facts. In this case the supposed breaches of procedural fairness are listed as:

(a) Ignoring a live issue or considering the wrong issue

(b) Ignoring evidence; and

(c) Relying on extra-record facts.[^73]

[56] As submitted on behalf of the HRTO in its factum, these are not demonstrative of procedural unfairness. They are more properly understood as substantive issues. The question of the propriety of the issue considered clearly runs to the substance of the decision. In this case the submission that evidence was ignored and facts outside those advanced in the material relied on, is an alternative approach to the substantive concerns suggesting that the Decision was unreasonable. It proposes that if the HRTO had relied on the facts as understood and interpreted on behalf of Shih-Fen Chen the result would have been different, and the decision taken revealed as unreasonable. As already noted herein and as a practical matter the facts were not relevant to the principal conclusion:

The applicant asserts that the third party made inaccurate findings of fact in the October 2015 investigation report, and was somehow biased in favour of the respondent. Even if this were true, and I make no finding in this regard, that allegation differs in nature and kind as compared to the allegations from May 2014 to June 2015.[^74]

Was the Reconsideration Decision unreasonable?

[57] The Reconsideration Decision outlined the submissions that had been made on behalf of Shih-Fen Chen:

(a) The Tribunal failed to assume the applicant’s allegations were true even though there was no clear evidence to the contrary. In particular, the Tribunal incorrectly held the applicant did not point to any evidence to support his allegation that the investigator made inaccurate findings of fact or was biased, and incorrectly held the respondent imposed discipline because the investigator’s report supported that approach;

(b) The Tribunal incorrectly held the conduct of a third party who is not named as a respondent in the Application could not be considered to form part of a series of allegations; and

(c) The Tribunal incorrectly ignored evidence and therefore incorrectly held certain allegations had no reasonable prospect of success. In doing so, the Tribunal departed from established jurisprudence in finding the investigation and discipline that followed did not form part of the series of allegations as the other incidents raised in the Application.[^75]

[58] The HRTO responded to these assertions by noting that the difficulty was not that the Decision failed to assume the allegations made by Shih-Fen Chen were true. Rather the HRTO distinguished between alleged facts and the conclusions that represented his theory of the case:

This does not mean the Tribunal is required to accept the applicant’s assumption that the incidents occurred for discriminatory reasons. Put differently, this does not require the Tribunal to simply accept the applicant’s theory of his case. The applicant must point to evidence to show discrimination.[^76]

[59] Within the ambit of the supposed failure of the HRTO to accept the alleged facts as proved is the submission that the investigation and discipline were part of a continuous series of incidents beginning in 2014 with the centralizing of workshops relying on the Ivey brand. This supposed failure arises from the submission that the investigation was a sham and a biased effort to build a case sustaining the views of the Dean. This is an example of the effort to treat a conclusion respecting the motivation of the investigator as a fact. It is not a fact; what it is, is a reflection of Shih-Fen Chen’s theory of the case.

[60] The same can be said of the statement that the HRTO determined that the reason the investigation could not be considered a part of a continuing series of incidents is because it was conducted by a third party who was not named as a respondent. This is not an accurate appreciation of what was put forward as a fact. All that was said in the Decision is that the allegation that the investigation was “somehow biased…pertains to the conduct of a third party who is not named as a respondent in this Application.”[^77] This does nothing other than identify the fact that the allegation of bias that the HRTO found to differ in nature and kind was directed at someone who was not named as a respondent. It does not make that the deciding factor, or a factor at all, in identifying the difference.

[61] What this demonstrates is that the Reconsideration was, in its entirety, in furtherance of attempting to have the HRTO reconsider the findings that had been made in the Decision and to have the HRTO override its own conclusions. This was the determination that it came to in deciding to deny the reconsideration request:

The difficulty facing the applicant is that reconsideration cannot be used in this way. The Tribunal’s Practice Direction and case law are clear: reconsideration cannot be used as a means to appeal a Tribunal decision.[^78]

[62] There is no basis on which this court can or should set aside the Reconsideration Decision. It was reasonable.

Conclusion

[63] For the reasons reviewed the application for judicial review is dismissed.

Costs

[64] As agreed between Shih-Fen Chen and Western University costs are to be paid to the university (the successful party) by Shih-Fen Chen in the amount of $5,000. No costs are sought by or against the HRTO. None are awarded.

Lederer, J.

I agree _______________________________

Swinton, J.

I agree _______________________________

Nishikawa, J.

Released: December 2, 2022

[^1]: R.S.O. 1990, c. H19. [^2]: Ibid s. 5(1) [^3]: Ibid s. 34: I make note of the reference to “person” only to observe that the Human Rights Commission has, pursuant to s. 35, an independent right to make an application for an order, not under s. 45.2 (referred to in s. 34) but under s. 45.3. It would appear that “person” does include an “organization” which, in the circumstances referred to, is authorized to make an application “on behalf of another person…” (see: s. 34(5) of the Code). [^4]: Ibid s. 43(1) [^5]: There are two parts to the rules of the HRTO. Part I is the Social Justice Tribunals Ontario (“SJTO”) Common Rules, which also apply to other tribunals within SJTO. Part II is the Human Rights Tribunal of Ontario, Specific Rules which apply only to the HRTO. Both parts are to be read together (see: the Rules of Procedure, “Introduction”). [^6]: Human Rights Tribunal of Ontario: Application-Employment (Form 1 and 1A) p. 7 of 22 (Caselines A92) referred to in the Decision of the HRTO, January 31, 2019 at para. 2 (Caselines A510) [^7]: Application Record p. 122, Human Rights Tribunal of Ontario, Request for an Order During Proceedings, Schedule A to Form 10 paras. 8-10 (Caselines A163) [^8]: Ibid at p. 121 para. 3 (Caselines A162) [^9]: Application Record, Request for a Summary Hearing-Rule 19A (Form 26) p. 127 (Caselines A168). The document itself is undated but is referred to in the “Index” of the Record of Proceedings of the Human Rights Tribunal of Ontario found at Tab E of the Application Record at p. 42 (Caselines A84) as having been issued on January 18, 2017, the same day (perhaps as part of) the Request for an Order During Proceedings [^10]: Ibid at p. 134 (para. 21) (Caselines A175) [^11]: Application Record p. 146, Response to Request for an Order, Schedule “A” at para. 4(g) (Caselines A187) [^12]: Application Record p. 460, Case Assessment Direction, October 20, 2017 para. 2 (Caselines A501) [^13]: Ibid at p. 462, 464 and 465 (respectively at paras. 14, 20 and 24) (Caselines A503 and A505) [^14]: Application Record, Decision p. 467 (Caselines A508) [^15]: Chen v. Western University, 2019 HRTO 162 (“Decision”) at paras. 12 and 13 [^16]: Ibid at para. 13 [^17]: Ibid at paras. 13 and 14 referring to Chappell v. Securitas Canada Limited, 2012 HRTO 874; Garland v. Canusa-CPS, 2012 HRTO 1309; Mozafarian v. Saint Elizabeth Health Care, 2016 HRTO 784 and Gan v. District School Board of Niagara, 2017 HRTO 1062 [^18]: Ibid at para. 15 referring to Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339 and Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 [^19]: Ibid at para. 17 referring to Agyei-Abankwa v. University of Windsor, 2012 HRTO 92; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670; Poole v. Trent University, 2011 HRTO 2086; Foley v. CAW-Canada Local 222, 2011 HRTO 1224 and SB v. Toronto (City), 2012 HRTO 2018 [^20]: Chen v. Western University, 2020 HRTO 830 (“Reconsideration Decision”) at para. 6 referring to Tribunals Ontario, Human Rights Tribunal of Ontario, Direction on Reconsideration under the heading “General”. [^21]: Ibid [^22]: Ibid at para. 8 [^23]: Ibid at para. 9 referring to Lewis v. Toronto Transit Commission, 2016 HRTO 1200 at para. 10. [^24]: Ibid at para. 10 [^25]: Human Rights Amendment Act, S.O. 2006, c. 30, s. 5 [^26]: 2008 SCC 9, [2008] 1 S.C.R. 190 [^27]: 2010 ONSC 3884 (Div. Ct.), upheld at 2012 ONCA 155 [^28]: 2019 SCC 65, 441 D.L.R. (4th) 1 [^29]: Ibid at para. 10 referred to in Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458 at para. 71 [^30]: Ibid at para. 33 referred to in Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458 at para. 71 [^31]: See fns. 28 and 29 herein [^32]: Ontario (Health) v. Association of Ontario Midwives, supra (fns. 28 and 29) at para. 77 [^33]: Ibid at para. 77 referring to Daly, Paul: “Patent unreasonableness after Vavilov” (2021) 34 Can. J. Admin. L. & Prac. 167, at pp. 175-76 [^34]: Ibid at para. 76 [^35]: Ibid at para. 83 [^36]: Canada (Minister of Citizenship and Immigration) v. Vavilov, supra (fn. 28) at para. 81 [^37]: Ibid at para. 85 [^38]: Ibid at para. 99 referring to Dunsmuir v. New Brunswick, supra (fn. 26) at paras. 47 and 74 and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5 at para. 13 [^39]: Ibid at para. 86 [^40]: Application Record p. 460, Case Assessment Direction, October 20, 2017 at p. 462, 464 and 465 (respectively at paras. 14, 20 and 24) (Caselines A503 and A505) [^41]: Application Record, Attachment to Shih-Fen Chen’s HRTO Application at pp. 67, 70-71, 73-76, and 76-77 at paras. 4, 24-29, 52-69, and 80-82 (Caselines A108, A111-A112, A114-A118) [^42]: Ibid at para. 9 (Caselines A109) [^43]: Ibid at para. 10 [^44]: Ibid at para. 11 [^45]: Ibid at paras. 25, 27, 28 and 29 (Caselines A111-A112) [^46]: Ibid at para. 31 [^47]: Ibid at para. 33 [^48]: Ibid at para. 61 (Caselines A115) [^49]: Ibid at para. 62 [^50]: Ibid at para. 52 (Caselines A114) I note this as attributed to the Application of September 29, 2016, because the Dean’s Complaint does not, so far as I can see, appear in the Record. Both the Application Record and the Record of Proceedings of the HRTO begin with the Application and do not include any earlier documentation. [^51]: Ibid at para. 53. 54 and 57 (Caselines A114 and A115) [^52]: Ibid at para. 56 (Caselines A115) [^53]: Ibid at para. 53 (referring to 13 people in this complaint), 54 (referring to 17 people) and para. 57 referring to these 30 people as not existing (Caselines A114 and A115) [^54]: Ibid at para. 5 and 57 (Caselines A108 and A115) [^55]: Ibid at para. 60 (Caselines A115) [^56]: Ibid at para. 60 [^57]: Ibid at para. 64 (Caselines A116) [^58]: Ibid at para. 61 (Caselines A115) [^59]: Ibid at paras.52-69 (under the heading “The Harassment Investigation”) (Caselines A114-A117) [^60]: Baisa v. Skills for Change, 2010 HRTO 1621 at para. 22 [^61]: DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 2049 at para. 12 [^62]: Cadarette v. Peel Regional Police Services Board, 2011 HRTO 1660 at para. 33 [^63]: Chen v. Western University, supra (fn. 15) (“Decision”) para. 9) [^64]: Ibid at para. 10 [^65]: Factum of the Applicant at para. 576 (Caselines A17) [^66]: Chen v. Western University, supra (fn. 15) (“Decision”) para. 18 [^67]: Ibid at para. 13 [^68]: Factum of the Applicant at para. 66 (Caselines A20) [^69]: Ibid [^70]: Lewis v. Toronto Transit Commission, 2016 HRTO 1200 at para. 10 [^71]: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17 referred to at Leong v Ontario (Attorney General), 2014 HRTO 311 at para. 45 [^72]: Factum of the Applicant at para. 48 (Caselines A14) [^73]: Ibid a para. 50 [^74]: Chen v. Western University, supra (fn. 15) (“Decision”) para. 13 [^75]: Chen v. Western University, supra (fn. 20) (“Reconsideration Decision”) para. 7 [^76]: Ibid at para. 9 [^77]: Chen v. Western University, supra (fn. 15) (“Decision”) para. 13 [^78]: Chen v. Western University, supra (fn. 20) (“Reconsideration Decision”) para. 20