CITATION: Zheng v. G4S Secure Solutions (Canada) Ltd, 2022 ONSC 93

DIVISIONAL COURT FILE NO.: 202/19

DATE: 20220111

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McLean, Gordon, Lederer JJ.

BETWEEN:

QUN (GEORGE) ZHENG

Applicant

– and –

G4S SECURE SOLUTIONS (CANADA) LTD., MONIQUE BUITRON, LINNETTE FORRESTER, JANET PUDAN, LELA RAMBARAN, TOM DOYLE, AMANDA SINGH, DEBBY TAYLOR, CEDRIC MACKELLAR, PETER PANARITIS, KETHEESAN PACKIYANATHAN, JOE CACCAMO, SHAN CHITHRAN, JMJ WORKPLACE INVESTIGATION LAW LLP, MONICA JEFFREY, SHERRARD KUZZ LLP, BRIAN WASYLIW and HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

On his own behalf

Brian Wasyliw and Katherine Ford, for the Respondents, G4S Secure Solutions (Canada) Ltd., Monique Buitron, Linnette Forrester, Janet Pudan, Lela Rambaran, Tom Doyle, Amanda Singh, Debby Taylor, Cedric Mackellar, Peter Panaritis, Ketheesan Packiyanathan, Joe Caccamo and Shan Chitran

Nicole Simes and Marium Rehan for the Respondents, JMJ Workplace Investigation Law LLP and Monica Jeffrey

Jason Tam, for the Respondent, Human Rights Tribunal of Ontario

HEARD: December 7, 2021

LEDERER J.

Introduction

[1] This is an application for judicial review of a decision of the Human Rights Tribunal of Ontario. No oral submissions were received by the Court. The applicant Qun (George) Zheng asked and the other parties consented to this proceeding being “in writing”. A case management order was made and the matter has been dealt with under its direction.

Background

[2] The applicant was employed by the respondent G4S Secure Solutions (Canada) Ltd. as a security guard. He alleged that other employees of the company harassed him, called him stupid and acted in breach of company policy. He brought these allegations to the attention of his employer. He was advised that it was not his responsibility to monitor the actions of his coworkers or to report on possible performance issues. A group of those coworkers made a complaint to management about his behaviour. The company, through its counsel, the law firm Sherrard Kuzz, brought in a workplace investigator, JMJ Workplace Investigation Law LLP. The investigator (Monica Jeffrey) met with various parties and completed a report. The report supported the version of the events as described by the applicant’s coworkers, a number of whom are named as respondents to this application. Following the investigation, the applicant’s employment was terminated. The applicant alleges that he was subjected to discriminatory treatment throughout his interactions with his coworkers, management and the workplace investigator. He alleges that the investigator relied on racial stereotypes, and that the counsel involved engaged in reprisals by sending him a “cease and desist” letter. It is the position of the applicant that he was the subject of discrimination in respect of employment on the basis of his race, ancestry, place of origin, colour, and ethnic origin. In short, he was discriminated against because he is of Chinese heritage.

The proceeding before the Human Rights Tribunal

[3] The matter came before the Human Rights Tribunal of Ontario on October 3, 2018 in what was described as a combined summary/preliminary hearing. It was to determine whether the various respondents were proper parties and whether the matter as a whole was one that should proceed. The Tribunal outlined the issues to be dealt with:

• Whether the Tribunal has jurisdiction to consider the claims against JMJ Workplace Investigation Law LLP (“JMJ”), Monica Jeffrey, Sherrard Kuzz LLP (“Sherrard Kuzz”) and Brian Wasyliw;

• Whether some or all of the 12 employees of the respondent G4S Secure Solutions (Canada) Ltd (“G4S”) named as respondents should be removed as parties to the proceeding;

• Whether the Application as against G4S and four of the G4S employee respondents is barred by s. 34(11) of the Code;

• Whether some or all of the issues in dispute were appropriately dealt with in another proceeding and should be dismissed in accordance with s.45.1 of the Code;

• Whether to dismiss some or all of the allegations on the basis they have no reasonable prospect of success; and

• Whether to allow the applicant's request to amend the Application to add the grounds of sex and age.[^1]

[4] The Tribunal took note of the fact that the applicant had commenced a separate civil claim against G4S and four of the personal respondents: Monique Buitron, Janet Pudan, Ketheesan Pakiyanathan, and Joe Caccamo. The Tribunal found that this triggered s. 34(11) of the Ontario Human Rights Code[^2], in particular section 34(11)(a):

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

[Emphasis added]

[5] The Statement of Claim had not been served and no reference in it made to s. 46.1 of the Code. The Tribunal found that the fact that the Claim had not been served did not detract from the fact that it had been “commenced”. There does not have to be a specific reference to s. 46.1, the issue is whether the facts and issues in a court action are the same as those in the application under the Code.

[6] This being so the Tribunal dismissed the Application, as it applied to G4S and the four personal respondents.

[7] The Tribunal moved on to consider whether the Application could proceed against the remaining eight respondents who were employees of G4S: Linnette Forester, Lela Rambaran, Tom Doyle, Amanda Singh, Debby Taylor, Cedric MacKellar, Peter Panaritis, and Shan Chithran. The Human Rights Tribunal has a policy. It seeks to discourage the practice of naming unnecessary personal respondents. This can occur when acts alleged to have been discriminatory are and remain the responsibility of the employer. This happens when the employer is vicariously liable for any such discrimination:

46.3 (1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

[Emphasis added]

[8] The Tribunal observed that, in this case, the applicant had taken the position, and G4S agreed, that G4S, as the employer, was vicariously liable for the actions of the personal respondents. There was no remedy requested that the corporation could not provide other than apologies from each of the individuals. The Tribunal found this was insufficient to warrant the Application being continued against each of the eight remaining personal respondents.

[9] This left the actions against counsel to the employer, both the firm and the lawyer and the workplace investigator, the firm and the person involved. Counsel wrote a “cease and desist” letter to the applicant. The applicant alleges that this stands as an independent wrong, separate from the allegations he makes against the other respondents. As he sees it, the letter is a reprisal made against him in response to his claims of discrimination:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

[Emphasis added]

[10] The Tribunal relied on other of its decisions to confirm that the relationship between a lawyer and an opposing party is not covered by the Code.[^3] Counsel for G4S did not provide a service to, any accommodation to, contract with, provide employment to, or was in any other relationship with the applicant which is addressed by the Ontario Human Rights Code.[^4] Any proper allegation of a reprisal would have to be against G4S as the employer.

[11] As for the workplace investigator, the Tribunal was uncertain as to whether her actions were outside the jurisdiction of the Tribunal but went on to consider whether the application, insofar as it implicated the workplace investigator, had any reasonable prospect of success. The Tribunal understood that in considering this question it was bound to assume that the version of the facts, as brought forward by the applicant, were true. Nonetheless, the Tribunal found that there was unlikely to be any evidence of unfair treatment allegedly resulting from actions of the investigator and allegedly experienced by the applicant that could be connected with any of the protections provided by the Human Rights Code. There was no reasonable prospect that the Application, as against either JMJ Workplace Investigation Law or Monica Jeffrey, would succeed.

[12] The Application, as a whole was dismissed. It bears noting that this did not foreclose the applicant from a remedy as against G4S or the four personal respondents that are defendants in the civil action he has commenced. That action, though the Statement of Claim had not been served, was still available.

[13] The applicant was not satisfied and sought to have the Human Rights Tribunal reconsider its decision.

The Reconsideration

[14] The prospect of a request for reconsideration is raised in the Human Rights Code at section 45.7:

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] The Tribunal has issued rules governing requests for reconsideration. There is also a “Practice Direction on Reconsideration”. As explained by the Tribunal in introducing its reconsideration of this case, the Practice Direction “is to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers”. The Tribunal quoted the Practice Direction to set the governing principle and the limits of a reconsideration:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

[16] The Tribunal identified rule 26 of its rules as “most relevant to this Decision”. It quoted the following:

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.

[17] As the Tribunal understood it, the applicant complained that there was cause to reconsider pursuant to each of rule 26.5 (b) (failure of notice), (c) (conflict with established jurisprudence and (d) (another factor that outweighed the public interest in the finality of the decision being a breach of procedural fairness).

Failure of Notice

[18] There was no demonstration of a failure of notice. There was nothing to suggest that there was notice to which the applicant was entitled but had not received. The question of whether s. 34(11) applied so as to found the basis to dismiss the application as against G4S and the four named personal respondents was initiated by the Tribunal and not one of the other parties. The parties had been advised of this issue by a “Case Assessment Direction” issued on September 17, 2018 which is to say in excess of two weeks before the hearing was scheduled (October 3, 2018). The time was short but the applicant did not ask for more time and had made full submissions on the issue. The applicant’s complaint that he had not received responses to his request for a deferral did not recognize that such responses were not required in every situation. The fact that the request that the case be dismissed against certain of the personal respondents was made on the wrong form was not to be treated as the applicant supposed; that is as if it had not been made. The Tribunal found that use of the wrong form did not deny the applicant meaningful notice.

Conflict with Established Jurisprudence

[19] There are cases where s. 34(11) has not operated to foreclose an application under the Code in the presence of a separate civil proceeding but the Tribunal pointed out that those circumstances were different.[^5] Here there was a “substantial overlap between both the legal issues to be determined and the facts raised by the Application and Statement of Claim.” The fact that the applicant had moved to remove references to the Code and “Code-based allegations” was not enough to bring it in line with the case of Baker v. Sears Canada[^6]. It did not change the fact that “the allegations set out in the Application and the Statement of Claim are virtually identical.”

[20] The applicant took the same position with respect to the decisions to dismiss the action as against the additional eight employees of G4S, the law firm and its lawyer as well as JMJ Workplace Investigation, and the individual investigator. In considering the eight employees, the law firm and lawyer, the Tribunal found that the reliance on supposed conflicting jurisprudence was nothing more than repeating reliance on case law and submissions made at the original hearing.[^7] With respect to JMJ Workplace Investigation and the investigator, the Tribunal noted that the applicant had “not made any submissions that suggest that the decision conflicts with the established jurisprudence”. Rather what he attempted to do was to challenge the underlying decision to hold a summary hearing.

[21] The applicant had sought to amend his claim by adding, as grounds for the discrimination, both his age and sex. On the reconsideration, he submitted this had not been adequately addressed. As the Tribunal saw it the applicant had failed to raise any grounds which would constitute the basis for a reconsideration. Even so she went on to explain. Given her findings that the complaint as against G4S and its four named employees, the additional eight G4S employees, and the law firm and lawyer would not proceed, there was little purpose in considering the applicability of these additional grounds for discrimination. As for JMJ Workplace Investigation and the investigator, the applicant had not made any direct allegations with respect to age relating to either of them. This issue was canvassed in the original decision. The Tribunal asked what evidence the applicant had that age and sex were factors in his treatment. He urged the Tribunal “to take judicial notice of the historic discrimination against men of Chinese origin in Canada, and the stereotypes of this group.” As heard by the Tribunal, the applicant “failed to articulate any link between this discrimination, the accompanying stereotypes and what happened to him.”

Denial of Procedural Fairness or Natural Justice

[22] The Tribunal found that there was nothing to support the idea that there was a lack of procedural fairness or natural justice. As found by the Tribunal there was no basis for the proposition that the summary hearing was invalid. There was nothing to sustain the submission that the point of the hearing was to dismiss the application and not to conduct a proper review. The fact that it finished forty minutes earlier than scheduled does not support such an idea. The fact that the Tribunal asked for clarification of his submissions was not a waste of time. It was in furtherance of better and greater understanding. While the applicant complained about the lack of production, no production order had been made nor would it have been. As explained by the Tribunal, this only happens when the parties are given notice of a hearing on the merits. The applicant pointed to nothing that would support a finding of bias. To put it in terms of the applicable test: there was nothing on which an “informed person, viewing the matter realistically and practically – and having thought the matter through” would conclude there was a reasonable apprehension of bias.

[23] It is both decisions that are the subject of this judicial review.

[24] Before entering into any discussion of this application for judicial review, I wish to make a general observation. This case is in one respect unfortunate. Qun (George) Zheng is not represented by counsel. The Court recognizes the right of individuals to act on their own behalf. The Court is alive to the reality that people who take this course may not always grasp the fine lines of the process, the limitations of the applicable rules, the substance of the issues and the nuances in the law that applies. The Court can provide some guidance to self-represented parties. In this case, in the absence of oral submissions, that would have occurred in case management meetings. The fact remains that the Court cannot take over prosecution of the case. Both sides have a right to a considered and impartial determination. There is an obligation on parties who represent themselves to work to understand the process and what will assist them in making helpful submissions. In this case, the applicant has failed to fully understand the process, the issues and the cases he has referred to. This has led him to a number of submissions which are not supportable.

[25] I turn to the issue of the standard of review.

Standard of Review

[26] The applicable standard of review is of particular concern to the Human Rights Tribunal. In its Factum it refers to and relies on s. 45.8 of the Ontario Human Rights Code:

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.[^4]

[Emphasis added]

[27] This is contrary to the direction found in Dunsmuir v. New Brunswick which sought to simplify the issue of the standard of review. It reduced the available options from three to two: correctness and reasonableness. “Patent unreasonableness” was found to be unnecessary:

The current approach to judicial review involves three standards of review, which range from correctness, where no deference is shown, to patent unreasonableness, which is most deferential to the decision maker, the standard of reasonableness simpliciter lying, theoretically, in the middle. In our view, it is necessary to reconsider both the number and definitions of the various standards of review, and the analytical process employed to determine which standard applies in a given situation. We conclude that there ought to be two standards of review — correctness and reasonableness.[^8]

[28] The Tribunal quotes Canada (Minister of Citizenship and Immigration) v. Vavilov as providing further guidance on this issue. Having determined that reasonableness is the presumptive standard of review, Vavilov held:

…that the presumption of reasonableness review can be rebutted “where the legislature explicitly provides the applicable standard of review.”[^9]

[29] Here and elsewhere, the Human Rights tribunal of Ontario has sought to rely on this statement to revive patent unreasonableness as the standard of review that should apply to it. In doing so, in this case, it seeks to rely, in part, on cases which predate the amendments to the Human Rights Code (2008) and Dunsmuir[^10] as well as more recent cases, but from other provinces, one from British Columbia and another from Alberta.[^11]

[30] As for cases from Ontario, the Factum of the Human Rights Tribunal refers to Shaw v. Phipps which came after the amendments to the Code and Dunsmuir but before Vavilov. It does not uphold “patent unreasonableness” as the standard. Rather it refers to “the highest degree of deference” being accorded to decisions of the Tribunal but discusses this in terms of a reasonableness standard:

Therefore, reading the words of s. 45.8 of the Code purposively and in light of general principles of administrative law, it would follow that the highest degree of deference is to be accorded to decisions of the Tribunal on judicial review with respect to determinations of fact and the interpretation and application of human rights law, where the Tribunal has a specialized expertise.

With respect to the present applications for judicial review, a high degree of deference is therefore to be accorded to the Tribunal's determination whether there has been discrimination under the Code and what the appropriate remedy should be, given that these are questions within the specialized expertise of the Tribunal. In other words, the decisions on liability and on remedy must be respected unless they are not rationally supported — in other words, they are unreasonable.[^12]

[31] What the Factum does not refer to is that the Tribunal has, since Vavilov, consistently taken the position that “patent unreasonableness” is the applicable standard and this Court has rejected that submission. In Intercounty Tennis Association v. Human Rights Tribunal of Ontario[^13] the Divisional Court considered and accounted for both Dunsmuir and Shaw v. Phipps. It noted that: “All counsel on this application, except for counsel for the Tribunal, agree that “reasonableness” continues to be the appropriate standard of review for the Tribunal’s decisions”.[^14] The Court went on to say: “The issue I must determine is whether, as the Tribunal asserts, Vavilov has overruled this principle.” [^15] The Court reasoned and concluded that:

Nowhere in Vavilov does the Court identify the merger of the reasonableness and patent unreasonableness standards as being one of the features of Dunsmuir that it is seeking to revise. Furthermore, to reintroduce the distinction would be contrary to the Court’s stated purpose in Vavilov – to clarify and simplify the law of judicial review. Reintroducing what the Court has already called a “meaningless” distinction that caused confusion would run counter to this aim.

Furthermore, in the section of Vavilov that expands on legislated standards of review, the Court ends its discussion with the following statement at para. 35:

We continue to be of the view that where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law.

As set out above, returning to an era where “patent unreasonableness” is given a meaning beyond “reasonableness” does raise rule of law concerns – namely, the fact that an irrational decision is allowed to stand because its irrationality is not “clear” or “obvious” enough.

For these reasons I find that the words “patent unreasonableness” in the Code are to be given the meaning ascribed to them in Shaw v. Phipps – namely, reasonableness.[^16]

[32] This understanding has been taken up and relied on in at least two other decisions of this Court. The issue has not, as of yet been taken up by the Court of Appeal. In Longueépée v. University of Waterloo the issue was raised in that Court but not dealt with:

In my view, it is both unwise and unnecessary for the proper disposition of this appeal, to embark on the analysis that the HRTO asks this court to undertake: that is, to determine whether post-Vavilov the statutory standard of review in s. 45.8 of the Code should be given effect, and if so, whether a court’s review of an administrative decision for “patent unreasonableness” would be different from a review for “reasonableness”. It is unwise to do so because these issues should be decided in a case where the standard of review makes a difference to the outcome, and where the parties with a stake in the dispute have joined issue on the point. It is unnecessary in this case because the result would be the same under both standards of review.[^17]

[33] In that case the resolution of the question would not have affected the overall disposition of the case. The same is true in this one. As will become clear the decisions, both the original decision and the reconsideration, were reasonable. Thus, the distinction between “reasonableness” and “patent unreasonableness” will have no impact on the questions the Court is being asked to consider.

The Judicial Review

[34] The applicant in his factum referred to eight issues in addition to questioning the standard of review (his issue #1). They are:

Issue #2: Was the HRTO’s Original Decision on the application of s. 34(11), as prejudged, unreasonable?

[35] The applicant submits that reliance on s. 34(11)(a) (the presence of an existing civil action which relies on the same facts and infringement) as a ground for the dismissal of the application under the Code was unreasonable.

[36] I return to what was said earlier concerning the limitations on the Court and the responsibility of parties who represent themselves. Simply stating that the Tribunal “committed a palpable and overriding error or made a material fact finding unsupported by the evidence when it found that s. 34(11) applied to my Application” does not help. Contrary to the view expressed by the applicant it was entirely reasonable for the Tribunal to conclude that:

The application of section 34(11) does not require that an applicant include an explicit reference to section 46.1 of the Code in the civil claim. Section 34(11) applies where the facts and issues in a court action are the same as those in the application, the applicant has alleged a violation of the Code in the civil claim, and he or she has sought damages based on that alleged violation. See Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 11.

[37] This is not a question of shaping the civil action so as to avoid reference to the allegation of discrimination. The facts are the same. A self-represented party would not be aware of our courts’ general antipathy to a multiplicity of proceedings. Having decided to go to court, relying on the same impugned actions as those alleged to have been discriminatory in a complaint to the Human Rights Tribunal of Ontario means that the Court is in a position to deal with the matter fully, including any allegation of discrimination. In short, you do not get two kicks at the same set of facts.

[38] This is consistent with an understanding of the evolution of the treatment of discrimination under the Human Rights Code of Ontario. The Code was first enacted in 1962. Its reach was limited. It was repealed and revised in 1981. Under the provision of the 1981 Code a complaint was made to the Human Rights Commission which conducted an investigation and where appropriate requested the “Minister” to appoint a “board of inquiry” to conduct a hearing to consider the complaint. Over time the Commission became overwhelmed with the volume of complaints it received. In 2006 the role of the Commission was changed. Instead of being responsible for the investigation of individual human rights complaints it was directed to focus on systemic causes of discrimination. The Human Rights Tribunal was created. Applications by individuals were made to the Tribunal which, where appropriate, could appoint a person to conduct an inquiry. As part of this reorganization, the 2006 amendment introduced s. 34(11) such that the process under the Human Rights Code was not to be available where a proceeding in court “seeking an order under section 46.1 with respect to the alleged infringement” had been commenced. This was in furtherance of restructuring the process such that it was better able to respond to complaints and broader discriminatory practices. The direction that allegations of discrimination could be dealt with as part of a proceeding in a different forum is consistent with Tranchemontagne v. Ontario (Director, Disability Support Program). The case was decided in 2006, the same year these amendments were enacted. In it the Supreme Court of Canada determined that jurisdiction as to the applicability of the Code was not limited to the decision makers put in place by the Code.[^18]

[39] The policies under the Occupational Health and Safety Act and any policies internal to G4S to which the applicant refers in his Statement of Claim, may be different from those under the Code but to the extent they are relevant, the Court can deal with them all.[^19]

[40] In Moreland v. St. Michael’s Hospital[^20] the Tribunal came to a different decision than the one it made here:

Moreover, as further noted in Baker, supra, the fact that a civil proceeding could potentially have been commenced alleging both wrongful dismissal and discrimination is a matter of personal choice. It is not within the Tribunal’s jurisdiction or mandate to instruct parties where to bring their cases.[^21]

[41] Statements like this made by the Tribunal in a different case, at a different time are not binding. They do not render the decision made in this case, on its particular facts, unreasonable. In Sonia Coombs-Carpio v. Toronto Catholic School Board Employees’ Credit Union[^22] in deciding to allow a human rights complaint to continue in the face of a civil action the Tribunal noted:

I am satisfied that the applicant’s civil action does not duplicate her Application in which she alleges breaches to the Code. The civil claim is a wrongful dismissal action in which the applicant does not refer to the respondent’s allegedly discriminatory actions described in the Application and seeks damages pursuant to the common law of employment. While both the civil claim and the Application address the termination of the applicant’s employment, the Tribunal has held that the fact that separate legal proceedings arise out of the same facts is not a basis for declining jurisdiction.[^23]

[42] In saying this the Tribunal relies on Moreland. The situation is the same. This is a matter of discretion. The Tribunal is not required to, nor should it blindly follow what has been said in other cases dealing with other facts.

[43] As I see it, this is underscored by the case of Baker v. Sears Canada[^24] which considered essentially the same situation: an application in which the respondents to a human rights complaint sought to have it dismissed in the face of a civil action relying on the same facts. As perceived by the Tribunal the choice lay exclusively within the purview of the applicant:

The applicant argues that the two cases address completely different issues, admittedly both related to her employment with the corporate respondent, but referring to discrete legal rights and obligations. She states that she has tailored her pleadings to the distinct allegations made and to the remedies sought in each matter, and requests that the Application be permitted to continue.

The threshold question is whether the applicant did in fact decide to raise the Code and seek remedies for alleged breaches by way of a court action. If so, she is clearly barred from bringing an Application to the Tribunal by virtue of the operation of section 34(11). If not, however, then the factual similarity between the two pieces of litigation is irrelevant to the question of the Tribunal’s jurisdiction to consider the matter. Similarly, any prejudice alleged by the respondents is immaterial to the jurisdictional question. The Tribunal either has jurisdiction to consider a matter or it does not.[^25]

[Emphasis added]

[44] What is surprising is that the Tribunal failed to recognize that it had any responsibility to contribute to the processing of these complaints in a fashion, and with the expedition, the broader public interest requires:

The Tribunal is not charged with a broad mandate to manage scarce judicial resources across adjudicative agencies, nor is it empowered to do so. Any person is entitled to file an Application, subject to clearly-defined jurisdictional limits. On a request for early dismissal without a hearing, the Tribunal must determine whether a jurisdictional bar prescribed in the Tribunal’s enabling legislation, in this case section 34(11), applies. The question of whether the Tribunal has the jurisdiction to deal with an application is distinct from the issue of whether it should defer dealing with an application in its jurisdiction, in the face of concurrent legal proceedings.[^26]

[45] There is no foundation for a finding that the decision to dismiss these complaints, given that the Statement of Claim that has been issued deals with the same facts, is not reasonable. This is particularly so having regard to the high level of deference applicable to the Human Rights Tribunal of Ontario. To my mind the better question, although seemingly never asked, is whether the decisions decided differently are themselves reasonable. Is it reasonable to allow a complainant to purposely shape his or her complaint in order to have two proceedings based on the same facts move forward?[^27] What happens if those facts, once subjected to the test of cross-examination and the understanding of two decisionmakers are found to be different and lead to inconsistent results? In the context of a dismissal from employment, does it make sense that a dismissal could be determined to be founded on a discriminatory act but is nonetheless not wrongful? If in such a circumstance the Tribunal finds there was discrimination and the Court finds the termination wrongful, on what basis is any remedy to be determined? Would there not be the potential for overlap; that is the risk that the wronged party would be compensated twice for the same wrongful conduct?

[46] The use of the phrase “it appears that the application is statutorily barred against the named respondents” [Emphasis added] made by the Tribunal in the course of a Case Assessment Direction does not, as the applicant suggests, imply any prejudgment. Contrary to the submission of the Applicant, the governing verb is not “is” it is “appears”. The phrase, including both “is” and “appears” has to be read as whole.

Issue #3: Was the HRTO’s Original Decision on deferral issue, as prejudged, unreasonable?

[47] The fact that the Tribunal had another option which was to defer the human rights complaint, that she issued a “Notice of Intent to Defer” but opted to consider whether s. 34(11) applied is not unreasonable. The case of Minega v. Ottawa Police Services Board[^28] referred to by the Applicant, where a deferral was granted pending a review by the Office of the Independent Police Review Director, does not demonstrate or refer to the granting of referrals as the Tribunal’s “normal practice”. It’s just a different case in which the Tribunal’s exercise of its discretion took it to a different result.

Issue #4: Was the HRTO’s Original Decision on arbitrary removal issue unreasonable?

[48] It was reasonable for the Tribunal to conclude that in the absence of an Application against G4S (the employer) the Application should also be dismissed against the remaining eight personal respondents. Whatever role they each played in relation to the Application will still be part of the civil action and the liability of any of them taken up and borne by G4S which, as the employer, is vicariously liable for any wrongful conduct carried out in the course of their employment. This is quite different from Thomas v. IATSE Local 461[^29] referred to by the applicant. In that case the individual against whom the complaint was allowed to continue was alleged to have sexually harassed the person complaining. This is not something the employer would necessarily be responsible for. Moreover, in that case the application was dismissed against the employer and the other employees not because of an ongoing civil action but because the application had no reasonable chance of success.

[49] The decision to dismiss the complaint against the eight employees also does not conflict with OHRC v. Farris.[^30] In that case the applicant alleged that she had been discriminated against during the course of her employment, because of her sex. The two individual respondents were principals of the company. The Tribunal found that the applicant had been discriminated against and that the personal respondents had failed to address her concerns. Despite these findings, the Tribunal only made the company liable for damages. The company was inoperative. Nonetheless, the Tribunal declined to impose liability on the personal respondents. This determination was found to be unreasonable. The circumstances, in this case are entirely different. That case came after a full hearing and adjudication. It concerned only whether the individual respondents should be jointly and severally liable in circumstances where there was doubt that the company would be able to pay. There is no such concern apparent here. In this circumstance, when asked to demonstrate the foundation for his claim to discrimination based on his sex, the applicant was not able to point to anything associated with his particular situation and relied only on the fact that it was accepted that men of Chinese ethnic origin were generally discriminated against on that account.

[50] The applicant referred to the case of Dhingra v. The Oxford College of Arts, Business and Technology Inc.[^31] The Tribunal made the following determination:

In all the circumstances, I deny the Request to remove the personal respondent, Jennifer Bawn. Though the corporate respondent acknowledges responsibility for Ms. Bawn’s conduct and asserted that it was within the scope of her duties, the allegations made, if proven, could lead to an individual remedy.[^32]

[51] On its face, the difference is clear. There were allegations against the personal respondent that could reach beyond those that were the responsibility of the corporate respondent. There is nothing to suggest this is so in the case being decided. Similarly, in Agar v. North York General Hospital,[^33] the application against the personal respondent was allowed to continue but not only because, as part of the remedy, an apology was sought and could not be provided by the employer but because the personal conduct of the individual would be a central issue in the complaint. It was alleged that she was independently responsible for the respondent corporation’s failure to accommodate the applicant. In the case being considered, there is no suggestion specific to any employee that suggests participation that was central to the Application that was made to the Tribunal.

Issue #5: Was the HRTO’s Original Decision on no reasonable prospect of success unreasonable?

[52] This determination was made only in respect of JMJ Workplace Investigation Law and its investigator. The applicant questions what the Tribunal was referring to when she concluded from the evidence available that there was no reasonable prospect that the Application, against the investigator, could succeed. He “guesses” that this refers to the “investigation report” and “notes of interviews”. This speculation does not help. The report and the notes would reflect on what, during the course of the investigation, was learned from and about others. There is no evidence made apparent by the applicant or anyone else that demonstrated discriminatory activity by the investigator that was independent and separate from the allegations made against G4S and its employees. This being so it is plain and obvious, accepting the allegations of any facts asserted as to discrimination “with respect to his employment”, that there was no reasonable prospect of success against the investigator. They weren’t involved in his employment as distinct from the investigation of his complaints.

[53] The case of Pollak v. Richmond Hill[^34] referred to by the applicant, does not help him. In that case the alleged mistreatment was under a municipal by-law. The applicant, in that case, believed the foundation for that treatment to be discriminatory arose from the fact that he was Jewish. What the case stands for is that while the facts (the actions and activities) as alleged must, for the purpose of a motion to dismiss, be accepted as proved, this acceptance does not extend to “the applicant’s assumptions about why they were treated unfairly.”[^35] The Tribunal went on to observe that:

The applicant’s role is to explain, by referring to evidence in his possession or evidence that may be reasonably available to the applicant, how he intends to prove that there is a connection between the conduct of the respondent and the prohibited grounds cited in this Application.[^36]

[54] It is apparent that in the case being decided no such evidence was forthcoming. The applicant submits that in the absence of referring to the “investigation report” which was within the control of the investigators and deciding in their favour the Tribunal “departed from the legal guidelines laid down in the leading Dabic case.[^37] In Dabic the applicant had been drinking and assaulted his wife. His family called the police. They charged him with domestic assault. The charges were later withdrawn. The applicant complained that he had been mistreated by the police as a result of his being a Serbian. Later he said he was being discriminated against by his wife and son. The Tribunal confirmed that there are circumstances where the reason for the conduct at issue would be in evidence that was in the hands of the respondent and not available to the applicant. It would only appear during the course of disclosure or cross-examination. The Tribunal went on:

However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.[^38]

[55] The Tribunal had only a “bald allegation of discrimination with nothing to suggest that the actions of the police were connected with grounds under the Human Rights Code”.[^39] It dismissed the complaint. This is the case here. There is nothing that links the investigators or the investigation to complaints concerning the applicant’s treatment in respect to his employment.

Issue #6: Was the HRTO’s Original Decision on amendment requests, as prejudged, unreasonable?

[56] The submissions made with respect to this issue concerned the failure of the Tribunal to take “judicial notice of the historic discrimination against men of Chinese origin in Canada, and the stereotypes of this group.”[^40] It is self-evident that a general assertion of discrimination against an identifiable group does not implicate a particular party in a particular circumstance. The Tribunal made this clear in the sentence that followed this quotation. The Tribunal went on: “However, the applicant failed to articulate any link between this discrimination and the accompanying stereotypes and what happened to him.”[^41]

[57] For his part the applicant repeats his position in his Factum underscoring the general understanding on which his allegation is founded:

I submitted at the summary hearing that the alleged sex-based discrimination was not because certain individual respondents are women but because they are inherent racial stereotyping flow from historic discrimination against male Chinese-Canadians.[^42]

Issue #7: Was the HRTO’s Reconsideration Decision on all decided issues unreasonable?

[58] The applicant refers again to his position that it was unreasonable to dismiss the human rights complaint in the face of the civil action. The Tribunal considered and did not accept that the applicant was not properly notified of the issue concerning the applicability of s. 34(11) of the Code. She found that the notice, though short did not result in unfairness, that the applicant did not raise any concern at the hearing, did not request an adjournment and made full submissions. This being the case, this was nothing more than an attempt by the applicant to try again with respect to his efforts to separate the two proceedings. Even so, the Tribunal reviewed the issue. She referred to cases identified by the applicant. In Roycroft v. Premier Salons Ltd.[^43] the applicant had successfully separated a “claim for constructive dismissal” from a human rights application:

The applicant in this case originally filed a civil claim against the respondents claiming that they had constructively dismissed her from employment and that they had discriminated against her contrary to the Code. However, the applicant subsequently amended her Statement of Claim to specifically remove the allegation that the respondents infringed her rights under the Code and her prayer for relief under the Code. What remains, the applicant submits and I agree, is a civil action for constructive dismissal and any remedies that may flow therefrom. Given that the applicant has withdrawn her request for a remedy under the Code, there is no basis upon which to dismiss the human rights Application under s. 34(11).[^44]

[59] The applicant, in this case attempted to do the same thing. As found by the Tribunal, he did not succeed.

[60] In Barker v. Elizabeth Fry Society of Simcoe County[^45] the applicant fell. She alleged that the respondent was negligent in failing to ensure proper snow removal from its premises. There was “very little overlap between the allegations made in the civil claim and those made in the Application.”[^46] The request to dismiss the Application was denied.

[61] This case was distinguished from those. While in those cases the Tribunal had found the civil action and human rights complaints were distinct[^47] in this case she confirmed the presence of a “substantial overlap between both the legal issues to be determined and the facts raised by the Application and the Statement of Claim. There is nothing unreasonable in this distinction being made.

Issue #8: Did the HRTO deny procedural fairness and natural justice?

[62] I return to where I began this discussion of the judicial review. The applicant complains that the Tribunal failed to carry out its responsibilities it owed him as a self-represented party. He says the Tribunal:

• was unfair to him in that she failed to tell him of his right to request an adjournment,

• took advantage of him,

• had an ulterior motive to summarily dismiss his application by virtue of the summary hearing and denied a fair merits hearing on evidence, and

• in effect manipulated him by asking him “to repeat those during the hearing five types of evidence” thus “subtly chang[ing] the topic of wasting time.[^48]

[63] He objects to the procedure. There should never have been a summary hearing. There is nothing that supports these allegations. They are a means of describing actions of the Tribunal in a way that is pejorative, but there is no evidence or allegation of fact that serves to confirm anything other than a sincere, careful and reasonable effort to deal with the applicant’s assertion that he was discriminated against contrary to the Human Rights Code. I point out that the Code contains terms which make clear that its processes should be more concerned with substance as opposed to technical compliance. In this regard I make note of the following sections:

41 This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.

43(8) Failure on the part of the Tribunal to comply with the practices and procedures required by the rules or the exercise of a discretion under the rules by the Tribunal in a particular manner is not a ground for setting aside a decision of the Tribunal on an application for judicial review or any other form of relief, unless the failure or the exercise of a discretion caused a substantial wrong which affected the final disposition of the matter.

Issue #9: Was the presumption of adjudicative impartiality rebuttable?

[64] The applicant submits that:

…prejudgments of different issues, such as s. 34 (11), referral, amendment and jurisdiction, tone and content of both Decisions based on irrelevant factors, aligning herself with the respondents on all issues, and cumulative effect of her comments expressed in the second Case Assessment Direction and during the summary hearing with the impression that those issues were predetermined were decided on the basis of stereotypical assumptions or generalizations, the public confidence in such administration of justice miscarried in the present case was lost, and the presumption of impartiality was rebutted, if rise to a perceived bias.[^49]

[65] The applicant went on to suggested that the Tribunal:

…misled the public in bad faith by deliberately falsifying “discrimination” in the Reconsideration Decision that was arbitrarily included in his civil claim for improper purpose. The Court of Appeal defined of bad faith as “a lack of candour, frankness and impartiality. It includes arbitrary or unfair conduct at the exercise of power to serve private purposes at the expense of the public interest”. Therefore, this act of bad faith also rebutted the presumption of impartiality.[^50]

[66] Not everything submitted requires a detailed discussion in reasons delivered by the Court. Alleging bias and bad faith requires more than the allegations being made. There must be a basis beyond mere speculation and accusations.[^51] I repeat what was said earlier in these reasons: there was nothing on which an “informed person, viewing the matter realistically and practically – and having thought the matter through” would conclude there was a reasonable apprehension of bias.

Conclusion

[67] The decisions taken were reasonable. The judicial review is dismissed.

Costs

[68] The HRTO does not seek costs, none are awarded to it. G4S while submitting that its partial indemnity costs are much higher seeks $3,000 in costs, while JMJ Workplace Investigation Law LLP and the investigator claim costs on a partial indemnity scale of $7,173.77. The law firm, Sherrard, Kuzz filed the factum received on behalf of G4S and made no submissions on its own behalf.

[69] In the circumstances it is appropriate that G4S receive less in costs than JMJ Workplace Investigation Law LLP. The former was the employer and directly implicated as such. The investigator was, in substance, a bystander. Costs are to be paid by the applicant Qun (George) Zheng to G4S in the amount of $3,000 and to JMJ Workplace Investigation Law LLP. In the amount of $7,000.

Lederer, J.

I agree _______________________________

McLean, J.

I agree _______________________________

Gordon, J.

Released: January 11, 2022

CITATION: Zheng v. G4S Secure Solutions (Canada) Ltd, 2022 ONSC 93

DIVISIONAL COURT FILE NO.: 202/19

DATE: 20220111

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McLean, Gordon, Lederer JJ

BETWEEN:

QUN (GEORGE) ZHENG

Applicant

– and –

G4S SECURE SOLUTIONS (CANADA) LTD., MONIQUE BUITRON, LINNETTE FORRESTER, JANET PUDAN, LELA RAMBARAN, TOM DOYLE, AMANDA SINGH, DEBBY TAYLOR, CEDRIC MACKELLAR, PETER PANARITIS, KETHEESAN PACKIYANATHAN, JOE CACCAMO, SHAN CHITHRAN, JMJ WORKPLACE INVESTIGATION LAW LLP, MONICA JEFFREY, SHERRARD KUZZ LLP, BRIAN WASYLIW and HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

REASONS FOR JUDGMENT

Lederer, J.

Released: January 11, 2022

[^1]: Zheng v. G4S Secure Solutions (Canada) Ltd., 2018 HRTO 1397 at para. 2 [^2]: R.S.O. 1990 c. H. 19 [^3]: Belso v. York Region Police, 2009 HRTO 757; Cooper v. Pinkofskys, 2008 HRTO 390. [^4]: Human Rights Code, supra (fn. 2) ss. 1, 2, 3, 4, 5, 6, and 7 [^5]: Roycroft v. Premier Salons Ltd., 2013 HRTO 573, and Barker v. Elizabeth Fry Society of Simcoe County, 2017 HRTO 805. [^6]: 2009 HRTO 1014, [^7]: For example: Persaud v. Toronto District School Board, 2008 HRTO 31 and Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, [^8]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para. 34 [^9]: 2019 SCC 65, 441 DLR (4th) 1, 59 Admin LR (6th) 1, 312 ACWS (3d) 460 at para. 17 [^10]: Canada (Attorney General) v. Public Service Alliance of Canada 1993 S.C.C. 941 at p. 960 and R. v. Owen 2003 SCC 33, 2003 S.C.C. 33 at paras. 32-33 [^11]: Team Transport Services Ltd. v. Unifor 2020 BSCS 91 at paras. 13-15 and 19 and Trach v. Alberta (Transportation Safety Board) 2020 ABQB at paras. 17-19 [^12]: Shaw v. Phipps 2010 ONSC 3884 (Div. Ct.) at paras. 41-421 upheld at 2012 ONCA 155 at para. 10 [^13]: (2020) 2020 ONSC 1632, 446 DLR (4th) 585, [2020] OJ No 1473 (QL) [^14]: Ibid at para. 38 [^15]: Ibid at para. 39 [^16]: Ibid at paras.42-45 [^17]: Longueépée v. University of Waterloo 2020 ONCA 830 at para. 56 [^18]: 2006 SCC 14, [2006] 1 SCR 513 at paras. 33-42 [^19]: The Human Rights Code s. 46.1 provides:

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect. [^20]: 2012 HRTO 2262 [^21]: Ibid at para. 7 [^22]: 2013 HRTO 26 [^23]: Ibid at para. 8 [^24]: Supra (fn. 6) [^25]: Ibid at paras. 5 and 7 [^26]: Ibid at para. 8 [^27]: Roycroft v. Premier Salons Ltd., supra ((fn. 5) at para. 23 (see the quotation at fn. 43 herein: [^28]: 2019 HRTO 1147 [^29]: 2015 HRTO 872, [^30]: 2012 ONSC 3876 [^31]: 2019 HRTO 1186 [^32]: Ibid at para. 7 [^33]: 2009 HRTO 1165 [^34]: 2019 HRTO 720 [^35]: Ibid at para. 12 [^36]: Ibid at para. 14 [^37]: Dabic v. Windsor Police Service 2010 HRTO 1994 [^38]: Ibid at para. 10 [^39]: Ibid at para. 12 [^40]: Zheng v. G4S Secure Solutions (Canada) Ltd., supra (fn.1) at para. 28 [^41]: Ibid [^42]: Factum of the Applicant at para. 56 [^43]: Supra (fn. 6) [^44]: Ibid at para. 23 [^45]: Supra (fn. 5) [^46]: Ibid at para. 7 [^47]: Roycroft v. Premier Salons Ltd., supra (fn. 5), and Barker v. Elizabeth Fry Society of Simcoe County, supra (fn. 5) [^48]: Factum of the Applicant at paras.60 and 63 [^49]: Ibid at para. 66 [^50]: Ibid at para. 67 [^51]: Zheng v. G4S Secure Solutions (Canada) Ltd., supra (fn. 1) at para. 25