DIVISIONAL COURT FILE NO.: 558/21 DATE: 2024/03/18
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BEFORE: Firestone R.S.J., Lococo, Ryan Bell JJ.
BETWEEN:
ASSOCIATION OF MANAGEMENT, ADMINISTRATIVE AND PROFESSIONAL CROWN EMPLOYEEES OF ONTARIO
Steven Barrett, Geetha Philipupillai and Nadine Blum, for the Applicant
Applicant
– and –
THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF THE ATTORNEY GENERAL)
Paul Meier and Andrew Lynes, for the Respondent
Respondent
– and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION[^1]
Intervener
HEARD at Toronto: November 28, 2023
REASONS FOR DECISION
RYAN BELL J.
Overview
[1] The Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO”) applies for judicial review of an arbitrator’s decision dealing with a workplace investigation into an incident involving the grievor, a Black woman, and her white colleague. In the underlying complaint, the grievor alleged that she was intentionally shoved by her colleague.
[2] The arbitrator concluded the investigation process and outcome were not tainted by anti-Black racism or unconscious bias, and that the respondent employer did not breach the Human Rights Code[^2] or the no discrimination clause of the collective agreement in its handling of the workplace complaint. At the same time, the arbitrator upheld AMAPCEO’s argument that the respondent breached the Occupational Health and Safety Act[^3] and the health and safety provisions in the collective agreement in failing to undertake a fair and unbiased investigation.
[3] AMAPCEO argues the arbitrator’s decision that the investigation process and outcome were not tainted by anti-Black racism or unconscious bias was both incorrect and unreasonable because the arbitrator misapprehended and misapplied the test for establishing prima facie discrimination.
[4] The respondent argues the application is moot because the arbitrator has already labelled the investigation as procedurally flawed, directed the respondent not to rely upon the investigation report, and ordered the respondent to pay the grievor monetary damages. In the alternative, the respondent argues the arbitrator’s conclusion that the investigation process and outcome were not tainted by anti-Black racism or unconscious bias was both reasonable and correct.
[5] For the following reasons, I would set aside the arbitrator’s decision dismissing the claim of discrimination and remit the claim to the arbitrator to be determined in accordance with these reasons.
Background
[6] On October 16, 2017, there was physical contact between the grievor and her colleague, Ms. X, as they passed each other in the corridor of their workplace. The grievor believed the contact was an intentional shove. Ms. X stated the contact was accidental. There were no eyewitnesses to the contact, although witnesses overheard words exchanged between the grievor and Ms. X and observed them immediately after the contact. The grievor also spoke to two colleagues about the incident immediately after it occurred.
[7] The grievor reported the incident to her manager the following day. The grievor then left the workplace and has not returned since. She was approved for WSIB benefits.
The Investigation
[8] The respondent appointed an investigator to investigate the grievor’s complaint under its Workplace Violence Prevention Policy. The investigator was a white man and lawyer in a management position in another department. He was assisted by a team of human resource professionals.
[9] The grievor submitted a written statement of her version of events, together with a request for remedies. The investigator interviewed several witnesses. Two of the witnesses reported hearing the grievor say “excuse me, excuse me” after the reported incident. One reported hearing Ms. X reply with words to the effect, “you were in my way.” A third witness could not remember what was said but reported that the grievor had a “confrontational” tone.
[10] Ms. X told the investigator that, as she was returning from the mailroom, the grievor crossed to her side of the corridor and walked into her, with their left shoulders bumping. Ms. X told the investigator about her medical issues at the time of the incident, including her balance problems, that could have affected how quickly she could get out of the way.
The Investigator’s Report
[11] The investigator produced a draft of his report on February 2, 2018, a few hours after hearing from the final witness. In the draft report, the investigator concluded that the incident did not occur as the grievor described. The draft did not include the actual statements given by each witness. The investigator incorrectly stated that one witness had called the grievor’s tone “threatening” when the witness had used the word “confrontational.”
[12] In the next draft of his report, the investigator added the following paragraph:
The evidence of the [grievor] seems self-serving. She admits to no wrong, not even suggesting that she raised her voice after the contact. Her evidence, including her claims of continuing impact of this minor physical altercation seems calculated to support her various claims for relief, including compensation. [Ms. X] appeared more credible. She admits matters that could be perceived as against her interest. For example, she says that she could have stopped to avoid contact. She also concedes that she raised her voice in the exchange following the contact.
[13] After going “back and forth” several times with his team, the investigator released his final report on February 23, 2018. In his report, the investigator concluded the grievor’s allegation that Ms. X subjected her to a physical assault was unsubstantiated. The investigator found that Ms. X’s evidence “was more consistent with the facts that are not in dispute”, “appeared more credible”, and that she had candidly admitted matters that could be perceived as against her interest.
[14] Regarding the grievor, the investigator concluded that her evidence “seems contrived to support her various claims for relief”, that she “does not admit to any wrongdoing on her part, not even raising her voice after the contact”, and that her evidence of continuing harm stemming from the incident “seems calculated to lead to the requested relief, including compensation.”
The Arbitrator’s Decision
[15] AMAPCEO’s grievance was based on three claims: (i) contrary to the investigator’s conclusion, Ms. X deliberately pushed the grievor; (ii) the respondent’s investigation into the incident was unfair, biased and flawed, contrary to its own internal policies and applicable legislation; and (iii) the investigation discriminated against the grievor and was tainted by anti-Black racism because the investigator’s processes and conclusions bore the hallmarks of anti-Black stereotypes, prejudice, and implicit bias.
[16] AMAPCEO called several witnesses in support of its discrimination claim, including Dr. Kerry Kawakami, an expert in implicit/unconscious bias. OPSEU led the evidence of Ms. X. The respondent employer called the grievor’s manager but did not call the investigator or any members of the investigator’s team as witnesses.
AMAPCEO does not challenge the arbitrator’s determinations on claims 1 and 2
[17] Regarding the first of AMAPCEO’s claims, the arbitrator determined that Ms. X did not assault the grievor in a pre-meditated fashion, but that Ms. X may have used two hands to push the grievor while attempting to ward off a collision in a narrow hallway.
[18] In regard to AMAPCEO’s second claim, the arbitrator concluded that the investigation was biased and flawed against the grievor, contrary to the requirement under s. 25(2)(h) of the Occupational Health and Safety Act that the employer take every reasonable precaution for the protection of the health and safety of workers. The arbitrator had “serious concerns about the Investigator’s processes and conclusions”, noting that “[i]t is apparent that the Investigator quickly came to a conclusion about the Grievor’s claim and then wrote the report with that conclusion in mind.” (Decision, at para. 205) The arbitrator summarized his concerns about the unfairness of the investigation: “The report was written in a way meant to justify the Investigator’s early conclusion without a fair consideration of the evidence. This did not meet the minimum requirements for a fair investigation.” (Decision, at para. 206)
[19] AMAPCEO does not challenge these determinations.
AMAPCEO’s claim that the investigation discriminated against the grievor and was tainted by anti-Black racism
[20] AMAPCEO challenges the arbitrator’s conclusion that AMAPCEO had failed to establish a prima facie case that the investigator’s process or conclusions were tainted by anti-Black racism or unconscious or implicit bias.
[21] Dr. Kawakami’s expert opinion addressed common anti-Black stereotypes and how implicit bias operates. The arbitrator agreed with Dr. Kawakami’s opinion that it was questionable whether the investigator would have reached the same conclusions if the grievor was white or if Ms. X was Black. (Decision, at para. 235) However, the arbitrator accepted the respondent’s argument that Dr. Kawakami had not provided a specific opinion about whether implicit anti-Black bias influenced the investigator, writing that “the most that [Dr. Kawakami] can do” is “rely on probabilities; since most White people have implicit anti-Black biases, then it is likely the Investigator did.” (Decision, at para. 210)
[22] The arbitrator concluded that while racism was one possible explanation for the biased and unfair way in which the investigator treated the grievor, it was not the dominant possibility. The arbitrator concluded there was no prima facie case of discrimination because, based on the evidence, he was unable to find on a balance of probabilities that race played a role in the investigation:
Since the Investigator did not testify, the issue is whether the Grievor has demonstrated a prima facie case that she did not receive “equal treatment” with respect to employment … because of her race.” In my view, she has not. There are any number or reasons why the Investigator might have investigated the way he did and came to the conclusions that he did and the Grievor’s race is one of them but the fact that it was part of his investigating and decision making was not proven … Here, based on the evidence I heard I am unable to find on a balance of probabilities that race played any role in the Investigator’s process. There is no prima facie case of illegal discrimination made out. (Decision, at para. 226)
[23] The arbitrator went on to find that because AMAPCEO “has not proven on a balance of probabilities that, to use the words of the Supreme Court, ‘[…] the protected characteristic was a factor [no matter how small] in the adverse impact’”, the “onus” [the arbitrator’s word] did not switch to the respondent to provide a reasonable explanation for the behaviour. (Decision, at paras. 236-237)
Judicial Review Application is Not Moot
[24] The respondent argued the application for judicial review was moot because the arbitrator had labelled the investigation as procedurally flawed, directed the respondent not to rely upon the investigation report, and ordered the respondent to pay the grievor monetary damages. After hearing the parties’ submissions on this issue, the court determined the application was not moot with reasons to follow. These are the reasons.
[25] A proceeding is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. A “live controversy” must be present not only when the action or proceeding is commenced, but also when the court is called upon to reach a decision: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.
[26] In Borowski, at p. 353, the Supreme Court of Canada adopted a two-step analysis to determine whether a matter should be dismissed as moot: “[f]irst, it is necessary to determine whether the required tangible and concrete dispute has disappeared, and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case.”
[27] On a plain reading of the arbitrator’s decision, it is readily apparent there remains a tangible and concrete dispute between the parties as to whether the respondent’s workplace investigation was tainted by anti-Black bias. One of the remedies sought by the grievor was damages for discrimination. Damages for procedural flaws, the removal of the investigation report from the grievor’s personnel file, and the direction by the arbitrator that the contents of the report not be relied upon for any purpose are not a substitute for damages for discrimination.
[28] The issues of procedural fairness and discrimination are distinct and there remains a live controversy between the parties. The application for judicial review is not moot.
Standard of Review
[29] AMAPCEO asserts that the standard of review to be applied to this application is correctness. The basis for AMAPCEO’s submission is the holding in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, that the presumption of reasonableness can be rebutted with regard to “general questions of law of central importance to the legal system as a whole.” AMAPCEO submits that the proper articulation and application of the test for prima facie discrimination is a general question of law of central importance to the legal system as a whole.
[30] The respondent maintains that the standard of review is reasonableness. The respondent argues that, as in Stewart v. Elk Valley Coal Corp.,[^4] “the debates here are not about the law, but about the facts and the inferences to be drawn from the facts” which requires a reasonableness standard of review. The respondent submits that if AMAPCEO’s argument is accepted, all discrimination cases would be subject to a correctness standard of review.
[31] As the Supreme Court explained in Vavilov, at para. 59:
… the reality that certain general questions of law “require uniform and consistent answers” as a result of “their impact on the administration of justice as a whole”: Dunsmuir, at para. 60. In these cases, correctness review is necessary to resolve general questions of law that are of “fundamental importance and broad applicability”, with significant legal consequences for the justice system as a whole or for other institutions of government […] For example, the question in University of Calgary could not be resolved by applying the reasonableness standard, because the decision would have had legal implications for a wide variety of other statutes and because the uniform protection of solicitor-client privilege – at issue in that case – is necessary for the proper functioning of the justice system […] As this shows, the resolution of general questions of law “of central importance to the legal system as a whole” has implications beyond the decision at hand, hence the need for “uniform and consistent answers.” [citations omitted]
[32] In support of its position that the standard of review is reasonableness, the respondent relies on this court’s decision in Toronto District School Board v. Canadian Union of Public Employees, 2023 ONSC 1619 (Div. Ct.). In my view, TDSB does not assist the respondent as to the applicable standard of review here. The decision under review in that case involved the interpretation of a collective agreement and the arbitrator’s disposition of two grievances involving the allocation of sick leave credits and the grievor’s return to work schedule. The Board argued the arbitration award was unreasonable because it lacked internal coherency, irrationally interpreted the collective agreement, and failed to properly apply the law. Unlike the case at bar, the decision under review in TDSB did not deal with an alleged breach of the Human Rights Code, nor was there any allegation that the arbitrator had misapprehended the legal test in relation to human rights protections and legislation.
[33] I also do not agree with the respondent that the debate here is about the facts and the inferences to be drawn from the facts. At the centre of this application is the correct test for prima facie discrimination, including the shifting evidential burdens, and whether the arbitrator misapprehended that test.
[34] In United Nurses of Alberta v. Alberta Health Services, 2021 ABCA 194, 24 Alta. L.R., at para. 55, the Alberta Court of Appeal recognized that the proper articulation and application of the test for prima facie discrimination is “essential to give effect to the recognized, fundamental human right to be free from discrimination, including on the basis of family status.” The Court emphasized the quasi-constitutional status of human rights legislation in Canada, and the need for consistency in the interpretation of human rights protections in collective agreements and in human rights legislation because these provisions “provide some of the most important protections in our society”: United Nurses, at para. 55.
[35] At issue in United Nurses was whether the test for discrimination included a requirement that the claimant prove “self-accommodation” in the context of a family status claim. The Court concluded, at para. 108:
Under Vavilov, the test for prima facie discrimination is a question of central importance to the legal system, to be reviewed on a standard of correctness. The three-part test established by the Supreme Court of Canada in Moore, sets a low threshold and is to be applied consistently in all claims of discrimination. This includes family status cases.
[36] I agree with the reasoning of the Alberta Court of Appeal. The protection of human rights and the rule of law would be undermined if the test for prima facie discrimination were interpreted and applied a certain way by one adjudicator and in an entirely different manner by another. As the Court put it in United Nurses, “[d]ifferent tests or evidentiary gradations of the same test beget inequality”: at para. 99.
[37] Contrary to the respondent’s submission, reviewing the arbitrator’s decision on a standard of correctness would not have the effect of making all discrimination cases subject to a correctness standard of review. Where the debate is about the facts and the inferences to be drawn from the facts, a reasonableness standard of review will apply. Where, however, the debate is about the applicable legal test and the analytical framework, a correctness standard of review applies because the question is of central importance to the legal system.[^5]
[38] That is the case here. A correctness standard of review applies.
Analysis
Prima facie discrimination – the legal principles
[39] The test for prima facie discrimination was confirmed by the Supreme Court of Canada in Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360. A complainant must show that: (i) they have a characteristic protected from discrimination; (ii) they experienced an adverse impact on account of the challenged norm; and (iii) the protected characteristic was a factor in the adverse impact: Moore, at para. 33. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice. If it cannot be justified, discrimination will be found to have occurred: Moore, at para. 33; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 63.
[40] A prima facie case of discrimination is “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer”: Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at p. 588.
[41] In Imperial Oil Limited v. Haseeb, 2023 ONCA 364, 483 D.L.R. (4th) 228, the Court of Appeal for Ontario reviewed the burden of proof and the shifting evidential burdens in a claim for discrimination on a prohibited ground under the Human Rights Code. Describing the law as “well-settled”, the Court of Appeal explained:
(i) The ultimate burden to prove a claim of discrimination on a prohibited ground is on the applicant: Imperial Oil, at para. 52; Ontario v. Association of Ontario Midwives, 2020 ONSC 2839 (Div. Ct.), at paras. 144-51.
(ii) If the applicant establishes a prima facie case of discrimination on a prohibited ground, then the evidential burden shifts to the responding party to rebut that a prohibited ground of discrimination was a factor in the impugned conduct. If the responding party succeeds in rebutting the prima facie case, then the evidential burden shifts back to the applicant to prove that the respondent’s non-discriminatory explanation is pretextual: Imperial Oil, at para. 53; Peel Law Association v. Pieters, 2013 ONCA 396, at paras. 63-74.
(iii) The responding party must show that the non-discriminatory reason was the sole reason for the action. The presence of a non-discriminatory reason for the impugned conduct does not insulate the conduct from a finding of discrimination under the Human Rights Code if it is combined with one or more discriminatory reasons: Imperial Oil, at para. 54.
(iv) The shifting evidential burdens recognize that if there is a non-discriminatory explanation for the impugned conduct, the respondent is uniquely positioned to provide evidence on that issue, because it has to do with the respondent’s state of mind or motivation: Imperial Oil, at para. 55; Pieters, at paras. 70-73.
[42] To elaborate on point (iv), the Court of Appeal explained in Pieters, at para. 72:
The question whether a prohibited ground is a factor in the adverse treatment is a difficult one for the applicant. Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence.
[43] While the legal burden of proof remains with the complainant, “[r]elatively ‘little affirmative evidence’ is required before the inference of discrimination is permitted”: Pieters, at para. 73; Ontario (Minister of Health and Long-Term Care) v. Association of Ontario Midwives, 2022 ONCA 458, 161 O.R. (3d) 561, at para. 146. The inference must only be more probable than not, and once there is evidence to support a prima facie case, the respondent faces a “tactical choice: explain or risk losing”: Pieters, at para. 73.
[44] Under the third branch of the analysis for a prima facie case of discrimination, all that is required is for the complainant to show there is a “connection between the adverse treatment and the ground of discrimination: Pieters, at para. 59. The connection does not need to be causal, and the connection between the adverse treatment and the prohibited ground can co-exist with other non-discriminatory factors: Imperial Oil, at para. 51; Pieters, at para. 60. The prohibited ground need not be the only reason for the adverse treatment, or even the predominant reason: Imperial Oil, at para. 51; Bombardier, at paras. 43-52.
The arbitrator misapprehended the test for prima facie discrimination
[45] In my view, the arbitrator’s reasoning reflects a misapprehension of the test for prima facie discrimination under the Human Rights Code and the associated legal principles.
[46] First, the arbitrator concluded that while racism was one possible explanation for the biased and unfair way in which the investigator treated the grievor, it was not the “dominant possibility.” (Decision, at para. 233) All that is required under the third branch of the analysis is that AMAPCEO show that race played any role in the decision-making process. The arbitrator erred in applying the incorrect legal standard by requiring racism to be the dominant possibility for the biased and unfair way in which the investigator treated the grievor.
[47] Second, the arbitrator misapprehended the correct analytical framework and the shifting evidential burdens. The arbitrator concluded that because the investigator did not testify, “the issue is whether the Grievor has demonstrated a prima facie case that she did not receive ‘equal treatment’ with respect to employment … because of her race.” (Decision, at para. 226) With respect, the arbitrator ought to have first considered whether, based on the evidence in the record, AMAPCEO had established a prima facie case of discrimination. If so, then the evidential burden shifted to the respondent to explain or risk losing. Instead, the arbitrator erroneously conflated the two stages in concluding that there was no obligation on the respondent to call any evidence because AMAPCEO had not “proven” illegal discrimination.
[48] Third, the arbitrator erred in terms of the nature and sufficiency of the evidence required before an inference of discrimination is permitted. The arbitrator discounted the uncontradicted expert evidence of Dr. Kawakami on the basis that,
…aside from reaffirming that there is racism in the OPS [Ontario Public Service] and that Black employees have serious misgivings about the way investigations are handled, I find the report of little relevance to the determination of these disputes. I know that there is racism in the OPS. I also know that the OPS is not exempt from implicit bias as discussed by Dr. Kawakami. However, the report cannot provide much assistance with the largely factual determinations that are before me. (Decision, at para. 220)
[49] The arbitrator then wrote that,
… [i]n my view, in order to find that the Investigator was unconsciously biased against the Grievor due to her race, there must be actual evidence, apart from the statistics, to suggest such bias. There must be words or conduct which, on a balance of probabilities, lead to the conclusion that such bias was present and affected conduct. (Decision, at para. 221)
[50] With respect, direct evidence – such as the words or conduct mandated by the arbitrator – is not required. Discrimination will more often be proven by circumstantial evidence and inference: Pieters, at paras. 111-112.
[51] As for the arbitrator’s treatment of Dr. Kawakami’s evidence, the Court of Appeal has recognized that the indicators of racial profiling recognized in the literature by experts and in the case law, can assist a trier of fact in determining what inferences should or should not be drawn: Peart v. Peel Regional Police Services (2006), 217 O.A.C. 269 (C.A.), at para. 96, leave to appeal refused, [2007] S.C.C.A. No. 10.
[52] Evidence of discrimination – even if it is circumstantial – must be “tangibly related” to the impugned decision or conduct: Bombardier, at para. 88. Dr. Kawakami provided evidence about the indicia of unconscious bias that, in a number of respects, correspond to the arbitrator’s own findings. For example, in her report, Dr. Kawakami noted that “White perceivers may be more likely to attend to and interpret behaviour by Blacks as criminal” and “it is more plausible that a White perceiver will identify with a White compared to a Black person as vulnerable to crimes and as a victim of violence than vice versa.” The arbitrator found:
• The evidence of the grievor’s statement ought to have been given some consideration by the investigator; “had he done so, he surely might have thought it implausible that the Grievor would cook up a scheme on the spot to make a false claim in order to seek compensation.” (Decision, at para. 198)
• The investigator’s finding that the grievor made up the complaint for compensation was “particularly harsh” and “not based on any actual evidence.” (Decision, at para. 196)
• The investigator was “not tasked with investigating the motives behind the Grievor’s complaint and yet for some reason took it upon himself to draw such conclusions.” (Decision, at para. 196)
• “The suggestion that the Grievor was making this complaint in order to get money was never put to the Grievor and was not suggested by Ms. X.” (Decision, at para. 196).
• “Had the Grievor been given an opportunity to respond to the Investigator’s claim … [h]e would have realized that the basis for his suspicion was illusory. The Investigator’s failure to ask the Grievor to respond to the Investigator’s own theory was improper and deeply unfair.” (Decision, at para. 196)
[53] The arbitrator erred in discounting Dr. Kawakami’s evidence and by looking for “words or conduct” that “lead to the conclusion that such bias was present and affected conduct.” As a result of this error, the arbitrator failed to consider the correlation between his own findings and Dr. Kawakami’s evidence about the indicia of unconscious bias and failed to consider whether AMAPCEO had met its initial evidential burden based on the evidence in the record, including the circumstantial evidence.
[54] Finally, in the face of the respondent’s failure to adduce any evidence by way of explanation for the investigator’s conduct, it was an error for the arbitrator to provide his own explanations. The arbitrator speculated that the defects in the investigator’s report “likely stem[ed] from an early conclusion that the Grievor’s account was inaccurate or false and the failure to consider the Grievor properly.” The arbitrator further speculated that the investigator came to a conclusion about the Grievor’s claim quickly and then “wrote the report with that conclusion in mind” and in a way “meant to justify the Investigator’s early conclusion without a fair consideration of the evidence.” (Decision, at para. 206)
[55] I make two observations. First, the arbitrator’s explanations are speculative because they were not adduced in evidence through either the investigator or a member of his team. Second, I agree with AMAPCEO that the arbitrator, by supplying his own explanations for the investigator’s conduct, effectively reversed the established approach to adjudicating discrimination claims. Rather than calling upon the respondent to explain and rebut the evidence supporting a prima facie case of unconscious bias, the arbitrator placed the burden on AMAPCEO to disprove the existence of possible non-racist explanations. The arbitrator erred in doing so.
[56] For these reasons, I conclude the arbitrator’s decision dismissing the claim of discrimination was incorrect and must be set aside. Even if the standard of review is reasonableness, the arbitrator’s decision cannot be justified under the “well-settled” law dealing with claims for discrimination involving the Human Rights Code.
Disposition of the application
[57] I would grant the application for judicial review, set aside the arbitrator’s decision dismissing AMAPCEO’s claim of discrimination, and remit the discrimination claim to the arbitrator to be determined in accordance with these reasons.
[58] Costs to be paid by the respondent to AMAPCEO in the agreed upon amount of $6,000, all inclusive.
“Ryan Bell J.”
I agree: “Firestone R.S.J.”
I agree: “Lococo J.”
Date of Release: March 18, 2024
DIVISIONAL COURT FILE NO.: 558/21 DATE: 2024/03/18
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Firestone R.S.J., Lococo, Ryan Bell JJ.
BETWEEN:
ASSOCIATION OF MANAGEMENT, ADMINISTRATIVE AND PROFESSIONAL CROWN EMPLOYEEES OF ONTARIO
Applicant
– and –
THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF THE ATTORNEY GENERAL)
Respondent
– and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Intervener
REASONS FOR DECISION
Ryan Bell J.
Date of Release: March 18, 2024
[^1]: OPSEU did not participate in the application for judicial review. [^2]: R.S.O. 1990, c. H.19. [^3]: R.S.O. 1990, c. O.1. [^4]: 2017 SCC 30, [2017] 1 S.C.R. 591, at para. 22. [^5]: Where a decision of the Human Rights Tribunal is at issue, the legislated standard of review set out in s. 45.8 of the Human Rights Code applies. Section 45.8 provides:
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.
In [Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458](https://www.minicounsel.ca/onca/2022/458), 161 O.R. (3d) 561, the Court of Appeal for Ontario confirmed at para. 83, that the standard of review under this provision, post-Vavilov, remains reasonableness, although the application of the reasonableness standard is now informed by the guidance provided in Vavilov.