CITATION: Yan v. 30 Forensic Engineering Inc., 2023 ONSC 6475

DIVISIONAL COURT FILE NO.: DC 22-517

DATE: 20231120

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, STEWART, AND TZIMAS JJ.

BETWEEN:

Jia Yan

Appellant

– and –

30 Forensic Engineering Inc.,

Respondent

Self-represented

Andrea Marsland and Diana Saturno for the Respondent

Human Rights Tribunal of Ontario

Respondent

Brian A. Blumenthal for the Respondent

HEARD: at Toronto, October 26, 2023

REASONS FOR JUDGMENT

TZIMAS J.

OVERVIEW

[1] The Applicant, Ms. Yan, seeks a judicial review of the decisions of the Human Rights Tribunal of Ontario (“HRTO” or “Tribunal”) in Yan v. 30 Forensic Engineering Inc., 2022 HRTO 649, 2022 C.L.L.C. 230-038, (“Decision”) and Yan v. 30 Forensic Engineering Inc., 2022 HRTO 1002, 2023 C.L.L.C. 230-009 (“Reconsideration”). The HRTO dismissed Ms. Yan’s claims against the Respondent, 30 Forensic Engineering Inc., (“30 Forensic”). It also dismissed Ms. Yan’s request for a Reconsideration of the Decision.

[2] Ms. Yan submits that the HRTO hearing was procedurally unfair and resulted in a reasonable apprehension of bias. In her view, the Tribunal omitted references to key evidence that contradicted the 30 Forensic’s position, it ruled repeatedly and consistently in the 30 Forensic’s favour, it applied a double standard to the admission of hearsay, it was close-minded and finally, her rights as an unrepresented applicant were infringed. In Ms. Yan’s view, the Tribunal’s findings were unreasonable. Ms. Yan asks that the Tribunal’s decision be quashed.

[3] 30 Forensic disagrees and asks that the judicial review application be dismissed. It contends that the proceeding before the HRTO was procedurally fair, the Decision was reasonable, it set out each issue in clear terms, it reviewed the evidence it relied on, and explained the reasons for its various conclusions. Accordingly, 30 Forensic asks that the HRTO be afforded the highest degree of deference on its interpretation and application of human rights law.

[4] The HRTO submitted a factum outlining the applicable statutory and procedural context relevant to the judicial review. It did not take any position on any of the facts in dispute between the parties.

[5] For the reasons that follow, I conclude that the HRTO hearing was procedurally fair, there was no reasonable apprehension of bias, and the Decision and Reconsideration were reasonable. As such, the Application for judicial review is dismissed with costs in favour of 30 Forensic, fixed at $10,000.

BACKGROUND

[6] Ms. Yan is an electrical engineer. Originally from China, she immigrated to Canada around 2001. 30 Forensic is a multi-disciplinary forensic engineering firm. Ms. Yan was hired on April 10, 2018 to work as a senior associate forensic engineer. She joined as the fifth member of the electrical team, consisting of a team lead, who was male, two engineers who were junior, less experienced, and younger than Ms. Yan, and an administrative coordinator who was also female and younger than Ms. Yan. 30 Forensic terminated Ms. Yan’s employment, nine months later, on January 30, 2023.

[7] Over the course of nine months, Ms. Yan encountered various instances of interpersonal conflict. Although the parties submitted competing versions of those conflicts and who was at fault, the parties agreed that the difficulties first surfaced in the middle of June 2018. By June 29, 2018, one of the principals of 30 Forensic expressed the desire to terminate Ms. Yan’s employment. Another principal and the representative from Human Resources disagreed. They decided instead to present to Ms. Yan a Performance Improvement Plan (“PIP”). They did so on July 16, 2018, the day after Ms. Yan returned from a bereavement leave.

[8] The PIP outlined three specific incidents and concerns, all of which Ms. Yan disputed. In her view, the allegations were fabricated to cover-up the Mao t-shirt incident and the underlying Sinophobic bias and discrimination within 30 Forensic. The PIP amounted to nothing more than a set up towards her eventual termination. Discussed in the Decision, at paras. 24-28 and elsewhere, the Mao t-shirt incident involved a t-shirt with an image of the face of the new chairman of the 30 Forensic board cropped onto Chairman Mao's head. The new chair emailed everyone at the firm saying that he was auctioning one of these shirts off. Later that same day, the new chair sent an apology email. Ms. Yan submitted that this is evidence of 30 Forensic's management being anti-Chinese.

[9] On July 17, 2018, Ms. Yan filed an internal complaint setting out several allegations of discrimination and a hostile work environment. She added a complaint on July 26, 2018 concerning her interaction with the principal to whom she reported. An investigation was launched, and Ms. Yan’s direct report was transferred to a different principal. On August 22, 2018, the internal investigation concluded that the alleged incidents did not meet the definition of harassment or discrimination. In Ms. Yan’s view, the internal investigation was perfunctory.

[10] On September 10, 2018, the representative from Human Resources met with Ms. Yan and one of the other team members with whom there had been conflict. Her objective was to review how their working relationship was going. A week later, the other team member resigned.

[11] In October 2018, Ms. Yan met with her principal several times to discuss her performance in anticipation of an upcoming performance review. She also met with him for the actual review. During that meeting, the principal stated that Ms. Yan should get involved in larger firm activities and noted that Ms. Yan had missed a firm curling event. In reply, Ms. Yan raised her shoulder injury and a severe food allergy as a reason for not attending the event. The principal said that he would accommodate that. Unbeknownst to the principal, Ms. Yan recorded the meetings and eventually produced to the Tribunal a total of nine recordings. Although Ms. Yan agreed that the recordings were edited, 30 Forensic agreed to their admissibility because the witnesses who were recorded acknowledged that the recordings accurately reflected their part of their conversations with Ms. Yan.

[12] At a meeting on December 17, 2018, the principal advised Ms. Yan that she would not be receiving a raise. Ms. Yan responded with an email expressing her surprise at that decision. She also had a meeting with the President of 30 Forensic to express her disappointment with that decision and to seek an explanation, particularly since she had previously been left with the impression that a raise might be forthcoming. In that meeting, Ms. Yan said she raised her difficulties with post-traumatic stress disorder, (“PTSD”). On the evidence before the Tribunal, there was significant disagreement over what the President said in response to Ms. Yan’s reference to her issue. The Tribunal considered the competing versions and concluded that the President referred Ms. Yan to Human Resources to address any accommodation issues related to her disabilities, as he considered it a private matter. On the same day, Human Resources invited Ms. Yan to reach out to discuss employee assistance resources available to her, including “well being / stress management / relationships / financial / eldercare, etc.” Ms. Yan did not follow-up with Human Resources or take any other steps.

[13] On January 18, 2019, Ms. Yan was asked to assist on an urgent file, but she refused. Here too, there were competing versions on what happened and the reason for Ms. Yan’s refusal. However, there was no dispute that Ms. Yan refused to assist. Described by 30 Forensic as the “last straw”, it was after this exchange that Ms. Yan’s supervisor decided to terminate Ms. Yan’s employment. The formal termination occurred on January 30, 2019.

[14] Ms. Yan commenced her application before the HRTO on March 1, 2019. She alleged discrimination and harassment based on sex, age, marital status, race, place of origin, disability, and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). On May 10, 2019, 30 Forensic responded and requested a summary hearing for the dismissal of all or parts of the Application. On June 13, 2019, Ms. Yan replied to the Response.

[15] On September 18, 2019, 30 Forensic sought a summary hearing to dismiss all or parts of the Application as having no reasonable prospect of success. In response, 30 Forensic contended that there was no clear link between the Code and many of the alleged incidents. Ms. Yan responded on October 30, 2019. Then on November 13, 2019, Ms. Yan made a further request to add personal respondents to the Application. On November 27, 2019, the HRTO did not allow the addition of personal respondents.

[16] On March 5, 2020, the Tribunal heard the summary hearing for a dismissal of some or all of the allegations. In the Case Assessment Direction (“CAD”), of November 13, 2020, the HRTO decided not to dismiss any of the allegations; it deferred that decision to the hearing on the merits. Following the presentation of Ms. Yan’s evidence, the Tribunal heard submissions on whether some or all of the allegations of discrimination should be dismissed as having no reasonable prospects of success.

[17] In its CAD of January 5, 2022, the Tribunal stated that on December 9, 2021, it orally dismissed Ms. Yan’s allegations of discrimination based on marital status, age, disability (in relation to a shoulder injury and food allergies), and the sexually inappropriate touching of the shoulder and arm. The reasons for the dismissal of the noted allegations were incorporated into the Decision. Having heard all of Ms. Yan’s evidence, the Tribunal concluded that “Ms. Yan did not put forward evidence, nor was she able to point to any further evidence that may be reasonably available to her, to support these allegations.” Also in its January 5, 2022 CAD, the Tribunal allowed the allegations of discrimination based on disability (PTSD) and discrimination and harassment based on race, place of origin, sex and age, to proceed to a hearing on the merits.

[18] According to the Tribunal and 30 Forensic, the parties, including Ms. Yan, agreed to proceed with a bifurcated hearing on liability and damages. The Tribunal would hear the evidence on damages, only if it found liability. In both her oral and written submissions before this court, Ms. Yan said she did not appreciate the implications of a bifurcated hearing and felt that ultimately it compromised the procedural fairness of the trial.

[19] The hearing on liability occurred over the course of ten days, and specifically on October 5, 6, and 7, 2021, December 8, 9, 13 and 14, 2021, and January 18 and 19, 2022. Closing submissions were received on January 21, 2022. The Tribunal then provided Ms. Yan until January 26, 2022 to file written supplementary closing submissions, focused only on the caselaw 30 Forensic relied on in its closing submissions.

[20] At the conclusion of the liability hearing, the Tribunal dismissed Ms. Yan’s application and therefore, it did not proceed to consider damages.

ISSUES and ANALYSIS

Position of the Parties

[21] Ms. Yan submitted that the hearing and the HRTO’s various rulings were procedurally unfair. The cumulative effect of those rulings was to create a reasonable apprehension of bias, resulting ultimately in a decision that contained legal errors and was unreasonable. Similarly, the HRTO’s decision to refuse the Reconsideration of the Decision went against the established jurisprudence of the Tribunal.

[22] Ms. Yan said she was denied procedural fairness because the Tribunal provided procedural indulgences to 30 Forensic, including the admission and reliance on otherwise inadmissible evidence, and the allowance of late-stage filings, all of which were prejudicial to her. The Tribunal did not extend any reciprocal procedural indulgences to Ms. Yan, especially in relation to the two doctors’ notes she wished to adduce, as well as testimony by her daughter on the subject of Ms. Yan’s PTSD.

[23] Ms. Yan also explained that the Tribunal demonstrated a reasonable apprehension of bias in the way it either misstated or ignored evidence that Ms. Yan sought to adduce. In her view, the Tribunal’s selective admission of hearsay in favour of the Respondent demonstrated bias and resulted in a hearing that was procedurally unfair. Finally, the cumulative rulings against Ms. Yan underscored the Tribunal’s bias.

[24] In the result, Ms. Yan also submitted that the Decision contained a number of legal errors and was unreasonable. It lacked transparency and intelligibility; its reasons were inadequate or alternatively the result of illogical reasoning. In the result, the decision contained several fundamental errors of law and was contrary to established jurisprudence. Ultimately, Ms. Yan contended that the HRTO erred in its findings that the Applicant did not establish prima facie evidence of disability – PTSD. Ms. Yan also contended that the HRTO erred in the dismissal of the allegations of discrimination on the basis of race and place of origin and erred with respect to its findings on reprisal.

[25] The Respondent, 30 Forensic, disagreed. It submitted that the hearing was procedurally fair, the Tribunal did not demonstrate any bias and did not behave in any way so as to create a reasonable apprehension of bias, the Decision was reasonable, and the Tribunal did not err in its dismissal of the allegations of discrimination based on disability (PTSD), race, and reprisal.

Issues

[26] The parties agree that Ms. Yan’s Application for judicial review raises the following issues:

a. What is the standard of review?

b. Was the hearing procedurally fair?

c. Did the HRTO demonstrate a reasonable apprehension of bias?

d. Did the HRTO err in its dismissal of the allegation of discrimination because of PTSD?

e. Did the HRTO err in its dismissal of the allegations of racial discrimination?

f. Did the HRTO err in its dismissal of the allegation of reprisal?

What is the standard of review?

[27] The parties agree that the standard of review for decisions of the HRTO is reasonableness. The review of a decision from the HRTO should be afforded the highest degree of deference with respect to the HRTO’s interpretation and the application of human rights law. Deference is owed because of the HRTO’s specialized expertise (Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, 161 O.R. (3d) 561 and Shaw v. Phipps, 2012 ONCA 155, 289 O.A.C. 163).

[28] To assess whether a decision is reasonable, courts are to be guided by, inter alia, the following considerations, as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653:

a. The reasonableness review respects the distinct role of administrative decision-makers, their institutional expertise and experience.

b. The written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 16).

c. When conducting a reasonableness review, a judge should be attentive to the application by the decision maker’s specialized knowledge. Respectful attention to the decision maker’s expertise may reveal that outcome accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision.

d. The history and context of the proceedings is to inform the reviewing court’s reading of the reasons.

e. While the reasoning is to be rational and logical, the analysis is not to be a line-by-line treasure hunt for error. The reviewing court must ask whether the decision bears the hallmarks of reasonableness – justification, transparency, and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision. The reviewing court must trace the decision maker’s reasoning to see if there are any fatal flaws in the overarching logic. Any flaw must be more than merely superficial or peripheral.

f. A court conducting a reasonableness review must also consider the reasoning process that led to that outcome. An outcome that is based on an unreasonable chain of analysis may be set aside even if the outcome is not unreasonable in the circumstances.

g. The court must show restraint and ask itself whether the applicant demonstrated the decision was unreasonable.

h. Decision makers need not respond to every argument or make an explicit finding on every element leading to a conclusion.

Was the hearing procedurally fair?

[29] Ms. Yan alleges that the hearing was procedurally unfair. Respectfully, for the following reasons, I disagree.

[30] To begin with, there is no question that the HRTO owed Ms. Yan a duty of procedural fairness. What must be assessed is whether that duty was met. The Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration, 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 23-27 identified several relevant factors to assess the level of procedural fairness: 1. The nature of the decision being made and the process followed to make it; 2. The nature of the statutory scheme; 3. The importance of the decision to the individuals affected; 4. The legitimate expectations of the person challenging the decision; 5. The choices of procedure made by the agency itself, especially if the statute leaves the decision-maker with the ability to choose its own procedures or when the agency has expertise to determine the procedures that are appropriate in the circumstances.

[31] Also in Baker, at para. 22, the Supreme Court of Canada observed that the:

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

[32] The HRTO has significant power to control its own process: see ss. 25.0.1 and 25.1.(1) of the Statutory Power Procedures Act, R.S.O. 1990, c. s.22 (“SPPA”). It can make rules to govern the practice and procedures before it so as to offer the parties before it, the best opportunity for a fair, just, and expeditious resolution of the merits of an Application: see s. 45.8 of the Code. That authority allows the HRTO to adopt practices and procedures that are an alternative to traditional adjudicative or adversarial procedures. The HRTO is also not bound by the strict rules of evidence; it has a broad discretion to admit relevant evidence, including hearsay, even if that evidence would not be admissible in a court: see s. 15(1) of the SPPA.

[33] Ms. Yan spoke in broad generalities about the hearing being procedurally unfair. Her perception was that the Tribunal favoured 30 Forensic on every issue that came up and demonstrated at the very least, a reasonable apprehension of bias. When asked to provide the court with some specific examples for why she arrived at those conclusions, Ms. Yan said the Tribunal was unfair in its handling of the following issues: i. 30 Forensic’s late filing of 13 documents and their authenticity; ii. the HRTO’s admission of hearsay evidence from 30 Forensic and then its failure to require it to call certain individuals who were the subject of the hearsay; iii. 30 Forensic’s late filing of the caselaw in support of its closing submissions; and iv. the Tribunal’s deliberate favouring of 30 Forensic over Ms. Yan.

[34] I will proceed to review each of these concerns to explain why the alleged procedural irregularities and unfairness were unfounded.

i. 30 Forensic’s Late Filing of 13 Documents and Their Authenticity

[35] Ms. Yan submitted that the Tribunal’s acceptance of 30 Forensic’s late documents was prejudicial to her and amounted to a procedural irregularity. Then, the failure by the Tribunal to require the authentication of the documents compounded the irregularities and contributed further to the procedural unfairness of the hearing. In Ms. Yan’s view, those documents should not have been admitted into evidence.

[36] To situate this issue, 30 Forensic produced 13 new documents at the outset of the hearing. It advised the Tribunal that it discovered those documents during the preparation of their five witnesses. Ms. Yan objected to their late filing. She challenged their authenticity and suggested that they were fabricated. She also objected to their admissibility because they contained, in her view, double and triple hearsay. Their late production was nothing more than an attempt to cause delay. In response to her concerns, the Tribunal offered Ms. Yan additional time to review the documents. Ms. Yan declined the offer.

[37] The authors of the various documents testified at the hearing. Ms. Yan agreed in her submissions before this court that she cross-examined them on the authenticity of the documents in question. She also questioned them on the reliability and credibility of the communications. Each of the authors agreed that they wrote the corresponding emails and/or memos. In other words, the authors authenticated their documents, and they were entered as exhibits to the hearing.

[38] In its decision, the Tribunal considered Ms. Yan’s concerns. On the subject of hearsay, although the Tribunal expressly acknowledged the right to admit hearsay evidence, it also underscored its decision to admit the impugned hearsay portions of the communications in dispute for context only and not for the truth of their contents. The Tribunal demonstrated in its decision that it considered Ms. Yan’s concerns and submissions that they were fabricated and designed to cover-up other issues within the organization. It reviewed those issues at some length. Ultimately, it disagreed with Ms. Yan’s contention that they were fabricated or otherwise unreliable and admitted the documents into evidence.

[39] Given the foregoing, I fail to see any unfairness in the way the Tribunal treated the late delivery of the said documents. It is evident that the Tribunal was alive to the concern that the late filing of the documents might be unfair to Ms. Yan, and accordingly, it offered her additional time to review them and prepare her response accordingly. That remedy was fair, but Ms. Yan declined it.

[40] Insofar as the Tribunal ultimately rejected Ms. Yan’s theory that the documents were fabricated, having heard all the evidence related to how the documents came to be, the Tribunal was entitled to arrive at that conclusion.

[41] On the specific issue of authenticity, with the greatest respect, it is quite evident that Ms. Yan conflated the authentication of a document with its reliability or credibility. Ms. Yan did not dispute that the authors of the documents testified to their authenticity. Her chief complaint was that significant paragraphs in the emails and memo communications were made up or written up after the fact, to support the company’s decision to terminate her employment. However, having been afforded the opportunity to cross-examine the authors, from a procedural fairness point of view, the Tribunal afforded Ms. Yan the full opportunity to confront the authors with her theory of how and why those documents came to be. If anything, in my review of the Tribunal’s decision, it is evident that the Tribunal understood Ms. Yan’s concerns. Its disagreement with Ms. Yan was not the result of any procedural unfairness.

ii. The HRTO’s Admission of Hearsay Evidence and 30 Forensic’s Failure to Call Certain Witnesses

[42] Ms. Yan also submitted that it was procedurally unfair for the Tribunal to admit into evidence the double and triple hearsay that she said was contained in various 30 Forensic emails and communications. But having done so, it was then unfair that 30 Forensic was not required to call as witnesses two individuals who were implicated in the hearsay evidence. The two individuals were Ms. Yan’s co-worker with whom she was alleged to have interpersonal conflict, and the individual implicated in the Mao t-shirt incident. In Ms. Yan’s view, the unfairness was compounded by the Tribunal’s refusal to admit Ms. Yan’s own hearsay evidence, consisting of two doctors’ notes she sought to adduce, to support her alleged PTSD symptomatology. In the result, Ms. Yan argued that the HRTO prevented her from putting forward an accurate exhibit record for the evidence she adduced.

[43] Here too, in my review of the record, the Decision, and the parties’ submissions, Ms. Yan may have misunderstood the Tribunal’s engagement with the alleged hearsay. To begin with, there was nothing procedurally unfair in the admission of 30 Forensic’s hearsay evidence. As already discussed, the Tribunal was alive to the hearsay aspects of 30 Forensic’s evidence and expressly noted that it admitted that evidence for the purposes of understanding the perspectives of 30 Forensic’s upper management. As an example, I highlight para. 108 of the Decision, where the adjudicator held: “I find their contemporaneous emails to reliably reflect the events from their perspectives and show that management paid attention to Ms. Yan’s concerns.” The contemporaneous emails belonged to upper management who recorded their respective perspectives on the difficulties between Ms. Yan and others within the company. At no point did the Tribunal make any findings on the truthfulness of what others, who were not called to testify, may or may not have said.

[44] In contrast to the 30 Forensic hearsay, Ms. Yan sought to rely on the doctors’ notes she produced for the truth of their contents, but she did not call the doctors to testify. Insofar as Ms. Yan understood that the Tribunal rejected the doctors’ notes she sought to adduce into evidence as hearsay, that is not accurate. The notes were admitted into evidence, but the Tribunal decided not to assign any weight to them. The adjudicator expressly observed that Ms. Yan did not call the doctors to testify and explain their notes and therefore expressed serious concerns over the reliability and the evidentiary value of both doctors’ notes. The adjudicator explained those concerns in some detail. The first note was dated August 11, 2021 and purported to cover a period from May 2 to November 22, 2019, which was several months following Ms. Yan’s termination. The second note was obtained on February 5, 2019, after Ms. Yan’s termination. Although it referred to restrictions caused by a motor vehicle accident from February 28, 2016, and went as far as to suggest that Ms. Yan’s symptoms worsened in mid-2018 following the death in the family and a toxic work environment, the Tribunal found the note to be unreliable because there was insufficient information in it to be able to evaluate if the physician’s conclusions were based on the doctor’s observations contemporaneous to Ms. Yan’s employment, or if the doctor merely recorded Ms. Yan’s self-reporting only after her termination. In light to those concerns, the Tribunal decided that it could not assign any weight to either document.

[45] Against that analysis, there is simply no foundation to the suggestion that the Tribunal acted in a procedurally unfair manner or permitted procedural irregularities.

[46] Finally, insofar as Ms. Yan then complained about the HRTO not requiring 30 Forensic to call the two additional individuals who were implicated in the hearsay, 30 Forensic was free to call the witnesses they want. The Tribunal would not have had any basis to impose such a requirement on 30 Forensic.

iii. The Late Filing of the Caselaw

[47] Ms. Yan raised the late filing of 30 Forensic’s caselaw as one more procedural irregularity that further compromised the procedural fairness of the hearing. The evidence concluded on January 19, 2022. The Tribunal gave the parties one day to prepare their closing submissions. In its closing submissions, on January 21, 2022, 30 Forensic referred to 11 decisions, the Code, and the Human Rights Commission Guidelines but it did not provide those references to Ms. Yan. At the conclusion of its submissions, the Tribunal directed it to provide Ms. Yan with copies of cases, which 30 Forensic did after 5 p.m. on the same day. The Tribunal also gave Ms. Yan until January 26, 2022, “to file written submissions in reply in relation to those decisions only”. Ms. Yan filed supplemental submissions, but she did not comply with the Tribunal’s direction. Instead, she sought instead to reopen her evidence and amplify the narrative of her original closing submissions. The Tribunal concluded that given the importance of finality and fairness to the proceedings, it would be inappropriate to consider those additional submissions.

[48] In her submissions before this court, Ms. Yan said she was completely blindsided by 30 Forensic’s filing of the caselaw. She contended that the caselaw should have been filed well in advance of the hearing and at the time when it filed its Responding Record. In the absence of such an advance filing, Ms. Yan said she was unable to follow the Respondent’s arguments, making it difficult to respond accordingly. The additional days the Tribunal gave her, which she counted to be only three days, were therefore useless to her.

[49] In my review of this concern, I note that the Tribunal was aware that Ms. Yan was self-represented. Giving Ms. Yan additional days to respond to the caselaw was fair. Although it would have been prudent for 30 Forensic to have provided its references to the caselaw it intended to raise, in advance of its oral submissions, the timing of that would have been just before the closing submissions were delivered, and not weeks in advance of the hearing, as Ms. Yan suggested. The HRTO Rules of Procedure do not require any party to file the caselaw it intends to rely on in advance of the hearing. Tribunals Ontario’s Guide to Preparing for a Hearing before the HRTO (2010) <tribunalsontario.ca> advises parties of the following with respect to the requirement and preparation of closing submissions:

After the parties have presented the evidence, each party has an opportunity to review the evidence and the law and to tell the HRTO adjudicator how the case should be decided. It is important to note that the HRTO adjudicator must base his or her decision only on the evidence and argument heard at the hearing. It is therefore necessary to present all the relevant information at the hearing as there will not be another opportunity to do so.

[50] Ms. Yan may have found the preparation of closing submissions challenging, but she would have known that each side would be presenting a summary of the evidence and the law, on which they intended to rely. That requirement could not have come as a surprise. Moreover, in her proposed supplemental submissions, which she attached to her affidavit in support of the Application for a judicial review, there was no reference to any caselaw, much less any attempt to engage with the 11 cases that 30 Forensic raised in its closing submissions. Nor was there any evidence that Ms. Yan complained about being blindsided or suggested that she needed more time than what was accorded to her to submit the supplemental reply.

[51] I would also add, that although it made sense for the Tribunal to offer Ms. Yan the opportunity to submit a reply in writing, the HRTO’s Rules of Procedure do not contemplate a reply. Furthermore, s. 43(8) of the Code states the following:

(8) Failure on the part of the Tribunal to comply with the practices and procedures required by the rules or exercise of 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.

[52] The Tribunal exercised its discretion in Ms. Yan’s favour. The exercise of that discretion did not cause any substantial wrong which affected the final disposition of the matter. Having given that opportunity to Ms. Yan, it is difficult to find that the Tribunal’s approach to the closing submissions was anything but fair.

iv. HRTO’s Favouring of the Respondent

[53] Ms. Yan submitted that the Tribunal’s consistent rulings in the Respondent’s favour compounded her concerns over the procedural unfairness of the hearing. The Tribunal’s engagement with Ms. Yan and its Decision do not support Ms. Yan’s contention.

[54] In my review of the Decision, I note repeated efforts by the Tribunal to conduct a fair hearing, in accordance with the Code. This is reflected in the following ways.

[55] First, it did not dismiss Ms. Yan’s allegations at the conclusion of the summary dismissal hearing, as 30 Forensic would have liked it to do. In its observation that “[t]hough there is no clear link between any of the alleged incidents and a Code ground, the applicant has pointed to certain specific incidents which, if she is able to establish were discriminatory, could justify permitting evidence to be heard on the other incidents as well”, the Tribunal effectively cautioned Ms. Yan of its concerns but expressly gave her the opportunity to proceed to a hearing. In its CAD of November 13, 2020, the Tribunal also signalled to Ms. Yan its overall reservations over her allegations when it indicated that it would hear Ms. Yan’s evidence about the Mao T-shirt incident and her claims that the company had a mocking disposition towards China, and would then revisit the question of whether the allegations ought to be dismissed as having no reasonable prospect of success.

[56] Second, in its consideration of the evidence, the Tribunal engaged with Ms. Yan’s evidence rigorously, and in a few instances, recognized the validity of Ms. Yan’s concerns. For example, the Tribunal recognized that Ms. Yan’s performance and business development with the company was very good. In its reference to the interpersonal conflict and the dynamics within the company, at no point did the Tribunal draw itself into the disputes or find error with Ms. Yan. To the contrary, it noted that at the time of Ms. Yan’s hiring, the company was facing various challenges, including a management buyout and financial difficulties. The lack of clarity over Ms. Yan’s mentoring role was not attributed to any failing by Ms. Yan but rather to difficulties on the company’s end. Similarly, the Tribunal preferred Ms. Yan’s interpretation that a comment about “cultural blindness” referred to differences in Western culture and Chinese culture, and not the company’s culture of teamwork, as Mr. Macleod of 30 Forensic tried to suggest. Finally, the Tribunal recognized that Ms. Yan had valid concerns. It accepted Ms. Yan’s evidence on various specific points and acknowledged that the company representatives made negative comments among themselves about Ms. Yan. Although ultimately, the Tribunal did not find in Ms. Yan’s favour, it was not because of any predisposition in 30 Forensic’s favour, or because it was procedurally unfair.

[57] Third, as already discussed in the context of 30 Forensic’s filing of the caselaw, the Tribunal’s decision to give Ms. Yan additional time to file supplementary closing submissions in response to the caselaw, was one more indicator of the Tribunal’s efforts to be fair and to account for Ms. Yan’s inexperience as a self-represented party to the hearing.

Did the HRTO demonstrate a reasonable apprehension of bias?

[58] Ms. Yan submitted that the cumulative effect of the aforementioned procedural irregularities demonstrated a reasonable apprehension of bias against her. Having rejected Ms. Yan’s challenges to the procedural fairness of the hearing and her contention of a reasonable apprehension of bias, there is no foundation to the submission that the HRTO demonstrated any bias against Ms. Yan.

[59] The grounds for bias, or even a reasonable apprehension of bias, must be substantial and require cogent evidence to rebut a strong presumption of impartiality. The determination of whether a reasonable apprehension of bias is present requires a highly fact-specific and contextual inquiry: see Wewyakum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, 326 O.A.C. 301, and Yukon Francophone School Board Education Area #23 v. Yukon (A.G.), 2015 SCC 25, [2015] 2 S.C.R. 282. The threshold for a finding of real and perceived bias is high. There must be a “real likelihood or probability of bias”. Behaviours including an adjudicator controlling her process, interpreting the evidence, making decision adverse in interest, and intervening and questioning witnesses in an effort to guide the parties towards the relevant issues and evidence does not amount to bias.

[60] In this case, for the reasons already discussed in the preceding section, the Tribunal was fair. In its analysis of the various issues, it considered the evidence carefully, it went through the evidence it accepted from both sides, it demonstrated its weighing of that evidence, and it gave logical explanations for its ultimate findings and conclusions. There is simply no evidence to support the contention that the HRTO demonstrated a reasonable apprehension of bias.

[61] Insofar as Ms. Yan also pointed to what she considered to be inadequate reasons to ground her reasonable apprehension of bias, I note that a decision-maker is not required to deal with every issue and every argument raised by the parties. Explicit findings on each constituent elements are also not required. Rather, reasons must adequately explain the basis for a decision: see Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708. In this instance, the Tribunal’s reasons for the dismissal of Ms. Yan’s application were comprehensive, considered, and did not demonstrate any likelihood or probability of bias.

Did the HRTO err in its dismissal of the allegation of discrimination because of PTSD?

[62] Having rejected Ms. Yan’s challenges to the procedural fairness of the hearing and her contention of a reasonable apprehension of bias, this, and the following questions, are to be considered on a standard of reasonableness.

[63] The Tribunal did not err in its dismissal of discrimination because of PTSD. At para. 72 of the Decision, the Tribunal cited and applied the proper test for the consideration of this issue with reference to Ms. Yan’s specific allegations. Ms. Yan had the onus of proving that, i. she had PTSD at the relevant time period; ii. that PTSD is protected from discrimination under the Code; and iii. that PTSD was a factor in the adverse treatment she experienced in the workplace.

[64] The Tribunal’s reasons for not being satisfied that Ms. Yan proved on a balance of probabilities that she was experiencing symptoms of PTSD during her employment and that it impacted her job, were reasonable. The Tribunal considered the evidence it heard and explained the reasons for which it rejected Ms. Yan’s allegations. Although, I may have given some weight to the letter from the doctor from Great West, who commented on Ms. Yan’s PTSD intensifying at the time of her brother’s passing and the toxicity in the workplace, that is not a permitted basis to find that the decision was unreasonable. On a reasonableness review, it is not the function of the court to reweigh the evidence. The HRTO is to be afforded the highest degree of deference on its evidentiary findings and its interpretation and application of human rights law. On this specific point, the adjudicator reviewed her concerns with the notes and explained her reservations about their reliability. She was not wrong in her ultimate finding that Ms. Yan gave very little evidence on her PTSD diagnosis and how that impacted her ability to attend the curling event in September 2018 or impacted her job performance.

[65] Even if I were to find that there may have been an evidentiary route for the Tribunal to find that Ms. Yan suffered from PTSD, the Tribunal’s finding that PTSD was not a factor in the adverse treatment Ms. Yan said she received in the workplace and that 30 Forensic did not breach any duty to accommodate, is beyond reproach. On this issue, the Tribunal reviewed the duty to accommodate in some detail. It considered Ms. Yan’s testimony as it related to her disclosure to management about her PTSD, as well as the evidence from 30 Forensic. The adjudicator’s reasoning for accepting the evidence of 30 Forensic over Ms. Yan’s recollection of the conversation, was logical and thorough.

[66] To the extent that Ms. Yan alleged bias in the Tribunal’s rejection of her evidence, it is essential to underscore the adjudicator’s deliberate cross-referencing of the evidence given by 30 Forensic’s three witnesses on how Ms. Yan’s communication of her PTSD on December 17, 2018 was communicated to 30 Forensic, to support her reasons for preferring the President’s evidence that he referred Ms. Yan to human resources to obtain the appropriate support as soon as Ms. Yan told him of her situation. The adjudicator’s explanation that she found that evidence compelling because 30 Forensic had a dedicated human resources manager who was equipped to respond to Ms. Yan’s concerns made complete sense. In keeping with that observation, the adjudicator remarked on how human resources communicated immediately following Ms. Yan’s meeting with the President of 30 Forensic to offer Ms. Yan various resources.

[67] Against such corroborating evidence, it was entirely reasonable for the adjudicator to prefer 30 Forensic’s evidence over Ms. Yan’s evidence, who testified that the President reassured her that he would “take care of it” and that there was no need for any doctor’s note. The Tribunal was not wrong to prefer the President’s evidence as more plausible, given the President’s view that he considered the disclosure a private matter and believed that it would be inappropriate for him to ask Ms. Yan more questions.

[68] The most compelling dimension of the Tribunal’s Decision that also demonstrated the extent of its reasonableness is captured at para. 83. Given Ms. Yan’s argument that even if she did not make any specific requests for accommodation, 30 Forensic was aware of her anxiety and should have acted, the Tribunal’s findings on this point bear repeating because they underscore the reasonableness of its findings on this issue:

[83] Although there was no specific request for accommodation, Ms. Yan submits that there was reason for the respondent to believe that she was having difficulty due to a disability and therefore there was a duty to inquire further. Ms. Yan relies on what she told Mr. Sparling and Mr. Catania and also relies on emails written or received by management in December 2018 in which Ms. Yan is described as “paranoid” and “stressed”. Even if there was a procedural duty to accommodate, what the respondent did, by referring her to human resources was reasonable. Ms. Yan had extensive dealings and familiarity with human resources over the course of her employment and it was reasonable to refer her there to provide the doctor’s note to allow the respondent to understand the nature of her disability so that accommodation could be provided. Ms. D’Obrenan invited Ms. Yan to reach out to her with any questions when she emailed her on December 17, 2018 about employee assistance resources available to her which include “well being / stress management / relationships / financial / eldercare, etc.” services. The applicant did not follow-up with human resources or take any other steps so there could not have been any more conversations about accommodation. The duty to accommodate is a co-operative duty.

[69] Contrary to Ms. Yan’s submission that the Tribunal ignored her evidence that she exhibited PTSD symptoms during the course of her employment and that 30 Forensic did nothing about it, as reflected in the noted paragraph, that was clearly not the case. The Tribunal considered Ms. Yan’s evidence in full. Instead, rather remarkably, Ms. Yan did not disagree with the Tribunal’s finding that she never followed-up on the communication from Human Resources offering her resources and an invitation to discuss her specific needs.

Did the HRTO err in its dismissal of the allegations of racial discrimination?

[70] The Tribunal did not err in its conclusion that there was no link on a balance of probabilities between Ms. Yan’s race, place of origin, sex and age and the manner she was treated in the workplace. Here too, its analysis was extensive. It was well thought out and had a logical flow to it.

[71] The adjudicator explored at some length the evidence surrounding the incident with the Mao T-shirt. She considered the email communications and the cross-examinations on this issue at some great length. The adjudicator noted that on cross-examination, Ms. Yan did not recall when she received the July 12, 2018 email with respect to the Mao T-shirt. Ms. Yan did not raise the issue of the t-shirts in her internal human rights complaint of July 17, 2018 or in her Application to the Tribunal. In fact, Ms. Yan first raised the issue on March 5, 2020, during the course of the Tribunal proceedings. Nonetheless, the adjudicator called out 30 Forensic for its insensitivity to Chinese people. However, her juxtaposition of that incident with her examination of the circumstances surrounding the issuing of the PIP and the company’s overall response to the difficulties between Ms. Yan and the other employees on her team, justified her ultimate conclusion that she did not find a link between Ms. Yan’s race, place of origin, sex and age and the manner she was treated in the workplace. Most compelling in this regard was the adjudicator’s conclusion, at para. 108:

[108] I have considered the respondent’s explanation and the broader context of these comments. There is no doubt that management made negative comments among themselves about Ms. Yan, as evidenced by the emails, after she complained to top management. However, the evidence is that management took her concerns seriously and made genuine efforts to understand and address them. In response to Ms. Yan’s June 5, 2018 email to top management with concerns in relation to this conflict, Ms. d’Obrenan and Mr. Reitsma each met with her. I find their contemporaneous emails to reliably reflect the events from their perspectives and show that management paid attention to Ms. Yan’s concerns and sympathized with her.

[72] The reality is that the Tribunal explored all aspects of Ms. Yan’s employment and in particular reviewed all of the incidents of conflict. In addition to the Mao T-shirt incident, it considered Ms. Yan’s complaints about the distribution of files, errors in Ms. Yan’s enrolment for disability benefits when she first started her employment, interpersonal issues, the late publishing of Ms. Yan’s bio and the late news release, the difficulties with the RFP submission, the decision to issue the PIP, the continued mentoring and interpersonal issues, Ms. Yan’s performance review, 30 Forensic’s decision not to give her a raise, and the reasons for her termination. For each of these subjects, the Tribunal considered the totality of the evidence and made its findings. In some instances, it accepted Ms. Yan’s evidence. For example, the Tribunal acknowledged that the company should not have faulted Ms. Yan for its decision not to submit an RFP; the RFP issue figured prominently in Ms. Yan’s PIP. On the other hand, the Tribunal relied extensively on Ms. Yan’s surreptitious audio recordings of her meetings with one of 30 Forensic’s principals, Mr. Sparling, to conclude that her performance review was thorough and covered her various areas of improvement.

[73] Although I have selected just two examples to highlight the Tribunal’s even-handed engagement with the evidence, the same could be said about its consideration of each of the specific concerns. The findings and conclusions were reasonable and there is no basis to conclude that the Tribunal was unreasonable in its dismissal of this ground of discrimination.

Did the HRTO err in its dismissal of the allegation of reprisal?

[74] The Tribunal did not err in its rejection of Ms. Yan’s complaint of reprisal. Its conclusion was reasonable. Section 8 of the Code says:

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 doing so.

[75] For a reprisal to be made out under s. 8 of the Code, an action taken against, or threat made to, the applicant must be related to the applicant having claimed or attempted to enforce a right under the Code. Then, there must be an intention on the part of the respondent to retaliate for the claim or attempt to enforce that right.

[76] In her factum before this court, at para. 111, Ms. Yan submitted that the reprisal by 30 Forensic was not limited to the termination of her employment. Rather, the harassment she encountered, the poisoned work environment, management’s internal bad-mouthing of Ms. Yan, and the company’s characterization of her internal complaint as a work issue, were all retaliatory and the result of her internal complaint. She added that management bad-mouthed her after she spoke to the President on December 17, 2018. Ms. Yan alleged that the Tribunal erred in its conclusion on this point because it failed to consider the cumulative sum of these experiences as retaliatory and in response to her complaints.

[77] The Tribunal considered the issue of reprisal, only in terms of 30 Forensic’s termination of Ms. Yan’s employment. The decision is silent on Ms. Yan’s submission before this court that all her negative experiences during her employment were retaliatory and resulted from her internal human rights complaint.

[78] Turning first to the way the Tribunal addressed the issue of reprisal, it reviewed the following evidence. Ms. Yan pursued an internal human rights complaint on July 17, 2018, immediately following the issuing of the PIP. The complaint was dismissed in late August of 2018. Ms. Yan was terminated six months later. On the evidence before the Tribunal, which the Tribunal accepted, Mr. Sparling, one of 30 Forensic’s principals, decided to terminate Ms. Yan’s employment after she refused to assist on an urgent file. The Tribunal accepted his evidence. Although it observed that the specific conflict was consistent with Ms. Yan’s previous resistance to assist with files, it found nothing in the evidence to suggest that Mr. Sparling’s decision to terminate Ms. Yan’s employment was retaliatory. It went further to note that it did not have to determine if whether Mr. Sparling had unreasonable expectations when he asked Ms. Yan to assist him. For the purposes of deciding whether the termination was retaliatory, it was sufficient that the termination was linked to Mr. Sparling’s perception of Ms. Yan being uncooperative.

[79] With respect to Ms. Yan’s submission before this court, it may have raised a pause for concern, were it not for the evidence that Ms. Yan encountered difficulties six weeks into her employment, and well before she launched her internal complaint. To suggest that everything she encountered post-July 17, 2018 was retaliatory does not accord with her own evidence. On the uncontradicted evidence before the Tribunal, Ms. Yan’s first complaint to the company was in early June 2018. By the middle of June there were continued difficulties and by June 29, 2018, one of the one of the principals wanted to terminate Ms. Yan’s employment in response to some interpersonal conflict and the difficulties with the RFP. The Human Resources Manager and Mr. Sparling acknowledged the difficulties were not necessarily Mr. Yan’s fault and preferred instead to issue the PIP. By all evidentiary accounts, there was confusion and toxicity in the workplace, that had nothing to do with Ms. Yan’s internal complaint.

[80] The Tribunal acknowledged the bad mouthing of Ms. Yan by management but it also found a genuine attempt by management to understand and address Ms. Yan’s concerns. As noted above, it specifically found that “management paid attention to Ms. Yan’s concerns and sympathized with her.” Then in her performance review, Mr. Sparling readily acknowledged Ms. Yan’s strengths. Also on the evidence before the Tribunal, Mr. Sparling learned that Ms. Yan went away pleased with her review and it was only after it was confirmed that she would not be getting a raise that Ms. Yan confronted the President of 30 Forensic and raised her difficulties with PTSD. It is reasonable to infer that had she perceived the difficulties she now raises as retaliatory, she would have raised them with Mr. Sparling, in her encounters with him in October 2018 and with the President in December 2018.

[81] Against that evidentiary backdrop, there is nothing unreasonable in the way the Tribunal considered and ultimately disposed of this issue.

CONCLUSION

[82] For all the foregoing reasons, the application for judicial review is dismissed.

[83] Regarding costs, 30 Forensic submitted a Bill of Costs and seeks a total of $40,487.21 on a partial indemnity basis. The HRTO submitted a factum but does not seek any costs. In my review of the Bill of Costs, I am concerned that the fees claimed reflect a fair bit of duplication. Having regard for the principles underlying r. 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I fix costs at $10,000, inclusive of disbursements and applicable taxes.

Tzimas J.

I agree. _______________________________

Sachs J.

I agree. _______________________________

E. Stewart J.

Released: November 20, 2023

AMENDED DECISION

The Style of Cause has been amended on November 28, 2023, to include The Human Rights Tribunal of Ontario, Respondent and Counsel Brian A. Blumenthal.

CITATION: Yan v. 30 Forensic Engineering Inc., 2023 ONSC 6475

DIVISIONAL COURT FILE NO.: DC 22-517

DATE: 20231120

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Tzimas, Sachs, Stewart JJ.

BETWEEN:

Jia Yan

Appellant

• and –

30 Forensic Engineering Inc.,

Respondent

Human Rights Tribunal of Ontario,

Respondent

REASONS FOR JUDGMENT

Released: November 20, 2023