Noble v. Human Rights Tribunal of Ontario, 2024 ONSC 7129
CITATION: Noble v. Human Rights Tribunal of Ontario, 2024 ONSC 7129
DIVISIONAL COURT FILE NO.: 167/24
DATE: 20241223
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Davies, Muszynski JJ.
BETWEEN:
Brian Noble Applicant
– and –
The Genuine Canadian Corp. o/a Carter’s Oshkosh Respondent
– and –
Human Rights Tribunal of Ontario Respondent
Brian Noble, self-represented
John J. Wilson and Michael Piaseczny, for The Genuine Canadian Corp.
Mindy Noble, for the Human Rights Tribunal of Ontario
HEARD at Toronto: December 10, 2024
Davies J.
A. Overview
[1] Mr. Noble filed a complaint with the Human Rights Tribunal of Ontario following an altercation on August 16, 2019 with an employee at a Carter’s Oshkosh store in Toronto (which is owned and operated by The Genuine Canadian Corp.). Mr. Noble claimed that a Carter’s employee discriminated against him on the basis of his race and colour.
[2] After a two-day hearing, the Tribunal dismissed Mr. Noble’s application (“the merits decision”). Mr. Noble filed a Request for Reconsideration of the Tribunal’s decision, which was also dismissed (“the reconsideration decision”).
[3] Mr. Noble seeks judicial review of both decisions.
[4] Mr. Noble makes three broad arguments on his applicaton for judicial review. First, he argues the hearing before the Tribunal was procedurally unfair because the Member restricted the scope of the hearing and limited his right to cross-examine several witnesses. Second, he argues the merits decision was unreasonable because the Member failed to properly assess the evidence and applied a heightened level of scrutiny to the evidence he presented. Finally, he argues the Tribunal erred in rejecting his request for reconsideration.
[5] For the following reasons, we dismiss the application for judicial review.
B. The hearing below was procedurally fair
[6] The parties agree there is no standard of review applicable when dealing with issues of procedural fairness. The question for us to decide is whether Mr. Noble was afforded the requisite level of procedural fairness in light of the nature of the decision, the nature of the statutory scheme, the importance of the decision to the Applicant, the legitimate expectations of the Applicant and the procedure followed by the Manager: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 23 to 27.
[7] Mr. Noble argues the hearing before the Tribunal was procedurally unfair for two reasons. First, he argues the Member unfairly prevented him from using will-say statements and the Response to his complaint, which were prepared by the Respondent’s lawyer, to impeach the credibility of two witnesses: the store employee involved in the incident (Ms. Lizana) and the other employee in the store at the time of the incident (Ms. Abayisenga). Second, Mr. Noble argues the Member unfairly limited the scope of the hearing to the events of August 16, 2019 and prevented him from adducing evidence about the adequacy of the Respondent’s investigation.
a. The Tribunal did not unfairly limit Mr. Noble’s right to cross-examine the witnesses
[8] Mr. Noble had a right, as a matter of procedural fairness, to present his case “fully and fairly”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 128. The right of parties to participate in a hearing ensures that 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”: Baker, at para. 22.
[9] Cross-examination is an important part of the right to participate in a hearing before the Tribunal. Cross-examination has been recognized as “the greatest legal engine ever invented for the discovery of truth”: Innisfil Township v. Vespra Township, [1981] 2 SCR 145 at p. 167. But the right to cross-examination is not absolute. First, cross-examination is limited by the ordinary rules of evidence applicable at a Tribunal hearing: Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, ss. 15 and 23(1). Second, cross-examination can be limited by the Member in order to ensure the hearing is “fair, just and expeditious”: Rules of Procedure, R. 1.7.
[10] The Tribunal has the power to make rules governing its own practices and procedures: Human Rights Code, R.S.O. 1990, c. H.19, s. 43. The Tribunal’s Rules of Procedure give Members the express power to “define and narrow the issues” and to “limit the evidence or submissions”, which includes the power to limit cross-examiantion: Rule 1.7(h) and (n), Macanovic v. Ontario (Attorney General), 2020 HRTO 19 at para. 110.
[11] At the start of the hearing, the Member made an evidentiary ruling about the use that could be made of the Respondent’s Response to Mr. Noble’s complaint and the will-say statements prepared by the Respondent’s counsel for two of its witnesses. The Member ruled that Mr. Noble could cross-examine the witnesses on the content of the will-say statements and Response but the will-say statements and the Response themselves would not be treated as prior inconsistent statements to the extent they contradicted the witness’ testimony at the hearing. The Member explained his ruling in the merits decision as follows:
…[P]rior to the merits hearing no witness statements were provided by respondent’s counsel for either Lizana or Abayisenga. Instead, will-say statements were prepared by respondent’s counsel because they were no longer employed by the respondent and respondent’s counsel was unable to contact them. As such the applicant was advised that, for cross-examination purposes, it would not be appropriate to view the Response or the will-say statements as prior inconsistent statements. However, the applicant was directed that he would be permitted to crossexamine the witnesses on any alternate factual statements that were contained in the Response or the will-say statements. As such there was no significant restriction on the applicant’s cross-examination of the respondent’s witnesses.
[12] The Tribunal did not err in its evidentiary ruling. When counsel for the Respondent delivered the witness statements, they made it clear the witnesses had not reviewed or confirmed the content of the will-say statements because they were no longer working at Carter’s. Counsel explained they used notes of what the witnesses had said at the time of the incident to prepare the summaries of their anticipated evidence. In those circumstances, there was nothing wrong with the Tribunal deciding the summaries prepared by counsel would not be treated as formal statements from the witnesses that could be admitted for the truth of their contents if they were not adopted by the witnesses.
[13] Mr. Noble relies on the Tribunal’s decision in Morrison v. Service Employees International Union, Local 1 Canada (SEIU), 2017 HRTO 270 to support his position that he was entitled to impeach the witnesses on the will-say statements and the Response. In Morrison, the Tribunal was dealing with the use that could be made of the applicant’s Application and will-say statement. The Tribunal found, at para. 63, that the will-say statement must have been prepared in consultation with the Applicant because it contained allegations about the incident that were not in her pleadings. The Tribunal rejected the Applicant’s disavowal of the will-say and found that she was responsible for the contents of that statement. The factual circumstances here are very different. The Tribunal found that Ms. Lizana and Ms. Abayisenga did not participate in preparing the will-say statements. The witnesses would also not have been involved in preparing the Response. The ruling in Morrison is, therefore, not applicable and the Tribunal did not err in finding that it would be unfair to allow Mr. Noble to rely on will-say statements for the truth of their contents when they were never confirmed by the witnesses.
[14] In any event, Mr. Noble was permitted to and did cross-examine the witnesses on the content of their will-say statements and the Response. As a result, the evidentiary ruling did not significantly restrict Mr. Noble’s right to cross-examine and did not undermine Mr. Noble’s right to procedural fairness.
b. The Tribunal did not unfairly prohibit Mr. Noble from adducing evidence about the Respondent’s duty to investigate his complaint
[15] Mr. Noble also complains that the Member unfairly prohibited him from cross-examinaing the store manager, Ms. Spring, about the adequacy of her investigation after the incident on August 16, 2019.
[16] Mr. Noble spoke to Ms. Spring on August 17, 2019. Ms. Spring told Mr. Noble that Ms. Lizana’s conduct was inconsistent with Carter’s practices and apologized for her conduct. Ms. Spring also said she would conduct a full investigation of what happened and would report her findings to Mr. Noble.
[17] In its Response to Mr. Noble’s complaint, the Respondent wrote that approximately a week after the incident, Ms. Spring phoned Mr. Noble to update him on her investigation. Mr. Noble says he never received a call from Ms. Spring after they spoke on August 17, 2019.
[18] At the hearing, Mr. Noble wanted to adduce evidence about the inadequacy of their investigation. In anticipation of that argument, Mr. Noble brought a pre-hearing motion seeking production of
a. all documents related to Ms. Spring’s investigation; and
b. telephone records related to his August 17, 2019 call with Ms. Spring and the purported call a week later.
[19] The Member found that the Respondent had no documents related to Ms. Spring’s investigation. The Member found that while those documents would have been relevant, he could not order the production of records that do not exist. Nevertheless, the Member ruled that Mr. Noble was “free to cross-examine the respondent’s witnesses at the merits hearing regarding the existence or non-existence of these documents.”
[20] The Member did not order the Respondent to produce the telephone records. The Member found that “whether or not the respondent called the applicant at any later date to inform the applicant of the results of any internal investigation into his complaint is a collateral issue” and not relevant to whether Ms. Lizana’s conduct on August 16, 2019 amounted to discrimination. I am satisfied that this finding was reasonable.
[21] The jurisprudence is divided on whether the failure to investigate a complaint of discrimination constitutes an independent breach of the Human Rights Code. In some cases, the Tribunal has found that a failure to investigate an allegation of discrimination can constitute a violation of the Human Rights Act. Those cases tend to involve allegations of discrimination in an employment context where the employer has a duty to provide a workplace free from discrimination for all its employees: Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, Nelson v. Lakehead University, 2008 HRTO 41. However, in Armitage v. Ottawa Carleton District School Board, 2022 HRTO 252 the same principles were applied to the provision of services in the education context. In other cases, the Tribunal has held that a failure to investigate a complaint does not constitute a breach of the Human Rights Code if there is no finding of discrimination: Scaduto v. Insurance Search Bureau, 2014 HRTO 250.
[22] In Lindsay v. Toronto District School Board, 2020 HRTO 496, the Tribunal addressed the conflicting jurisprudence:
The Tribunal’s jurisprudence is somewhat divided on the issue of whether an inadequate investigation can amount to an independent violation of the Code in the absence of findings of Code based discrimination or harassment. In Scaduto v. Insurance Research Bureau, 2014 HRTO 250, the Tribunal found that the failure to investigate discrimination that does not exist cannot amount to a breach of the Code. In Ananda v. Humber College Institute of Technology & Advanced Learning, 2017 HRTO 611 (“Ananda”), the Tribunal found that there can be circumstances in which it is inherently discriminatory to fail to address allegations of discrimination or harassment although the allegations are shown to be unsupported. See paragraph 121. The reasoning in Scaduto, above, has generally been preferred in the Tribunal’s case law.
[23] The main focus of Mr. Noble’s complaint was on how he was treated by Ms. Lizana on August 16, 2019. The hearing was about a single, brief encounter between Ms. Lizana and Mr. Noble, who had no dealings with each other before or after August 16, 2019. It was not unfair for the Member to exercise his authority to limit the hearing by allowing Mr. Noble to cross-examine Ms. Spring about the existence or non-existence of notes about her investigation but to otherwise focus on the events of August 16, 2019.
[24] Nevertheless, Mr. Noble adduced evidence about the nature of the Carter’s investigation into the incident. At the hearing, he filed an affidavit from the security guard who was working in the mall on the day of the incident. The security guard described his interactions with Mr. Noble and the store employee on August 16, 2019. The incident report prepared by the security guard on August 16, 2019 was attached to his affidavit as an exhibit. The security guard also said that he was never contacted by anyone from Carter’s as part of an internal investigation into the incident.
[25] Mr. Noble also cross-examined Ms. Spring about what she was told about the incident. Ms. Spring was called to testify about Carter’s policies and procedures related to store operations. The closing submissions of the parties make it clear that Ms. Spring was questioned about how employees are expected to act when there are customers in the store as closing time approaches. But Ms. Spring was also questioned about what Ms. Lizana told her about the August 16, 2019 incident. In fact, the description Ms. Lizana gave to Ms. Spring of Mr. Noble after the incident played an important part in Mr. Noble’s argument that Ms. Lizana discriminated against him. Mr. Noble argued that the fact Ms. Lizana told Ms. Spring he was a black man was evidence from which the Tribunal could infer discrimination. The Member rejected that argument but Mr. Noble was permitted to adduce evidence about statements given to Ms. Spring after the incident.
[26] Mr. Noble prepared very lengthy written closing submissions. His submissions focused exclusively on the events of August 16, 2019. He made no arguments about the sufficiency of the investigation. He did not ask the Member to find the lack of a proper investigation amounted to a separate breach of the Human Rights Code.
[27] The duty of procedural fairness is flexible and context-specific. The Member was entitled to limit the scope of the hearing to ensure it was fair, just, proportionate and expeditious: Human Rights Tribunal Rules of Procedure, Rule 1.7, Knight v. Indian Head School Division, [1990] 1 SCR 653 at 685, Tice v. The Human Rights Tribunal of Ontario, 2023 ONSC 5453 at para. 12. Given that this case involved a single, brief interaction between Mr. Noble and Ms. Lizana, the Member did not breach the duty of procedural fairness by defining and narrowing the issues as he did.
C. The decision on the merits was reasonable
[28] Mr. Noble argues that the merits decision is unreasonable because the Member erred in his assessment of the credibility of the witnesses and applied a different level of scrutiny to Mr. Noble’s evidence compared to the evidence presented by the Respondent.
[29] The question for us to decide is whether the Tribunal’s decision dismissing Mr. Noble’s application is reasonable. A reasonable decision is one that is transparent, intelligible and justified in light of the evidentiary record: Vavilov, at paras. 15 and 126. It is not the role of this Court to re-weigh or reassess the evidence. The Court will not interfere with factual findings, including findings in relation to the credibility and reliability of witnesses, unless the Tribunal fundamentally misapprehended the evidence or failed to consider relevant evidence: Vavilov, at para. 125. If an administrative decision-maker fails to adequately articulate how credibility and reliability concerns were resolved, that could also impact the reasonableness of the decision.
[30] The Member set out the proper principles that apply when assessing the credibility and reliability of witnesses. The Member made clear and intelligible findings based on the evidence and provided detailed reasons for his findings.
[31] In the end, however, credibility and reliability were not important factors in this case for two principle reasons. First, the Member found that credibility was not an issue for any of the witnesses. The Member found that he had “no reason” to believe any witness deliberately withheld the truth.
[32] Second, the Member reasonably concluded that the material facts about the altercation between Ms. Lizana and Mr. Noble were not in dispute. There was no dispute that Mr. Noble went into the Carter’s store just before it was closing. There was no dispute that Ms. Lizana told Mr. Noble the store was closing. A few minutes later, Ms. Lizana told Mr. Noble a second time that the store was closing and asked him to take any items he wanted to purchase to the cash register. Mr. Noble asked if he could have a few minutes to decide what he wanted to buy and Ms. Lizana said “no.” Mr. Noble threw the items he intended to purchase. Ms. Lizana and Mr. Noble then got into a verbal altercation. Mr. Noble and Ms. Lizana each admitted they made rude, offensive and insulting comments to each other during their altercation.
[33] The real issue was whether the Member was satisfied that Mr. Noble’s race or colour was a factor in how he was treated by Ms. Lizana.
[34] The Member considered all the arguments advanced by Mr. Noble. The Member considered but rejected Mr. Noble’s argument that Ms. Lizana’s rude and offensive conduct was the result of her conscious or unconscious bias towards him based on his race and colour. The member found that Mr. Noble was the first person to behave in a rude and disrespectful manner during their interaction when he was told by Ms Lizana he could not continue shopping. The Member found that Ms. Lizana became angry in response to Mr. Noble’s comments and Mr. Noble’s race and colour were not a factor in her treatment of him. These findings were open to the Member to make.
[35] The Member also considered but rejected Mr. Noble’s argument that Ms. Lizana singled him out for scrutiny when he entered the store. The Member made the following findings, which were reasonable based on all the evidence:
The uncontradicted evidence is that all other customers who were in the store just prior to the 7:00 pm closing were advised that the store was closing. As such there is no evidence to suggest that the applicant was treated any differently than any other customer in the store at that time. Even if there had been evidence to suggest that the applicant was treated differently from any other customers in the store there was no evidence as to the race or colour of the other customers in the store from which any differential treatment on Code grounds could be based.
[36] We are satisfied the merits decision is reasonable.
D. Reconsideration Decision
[37] In light of our finding that the merits decision was reasonable, we do not need to address whether the Tribunal made any error in dismissing Mr. Noble’s request for reconsideration. However, given the very limited grounds for reconsideration, we are satisfied that the Tribunal made no error in dismissing that request. Under Rule 26.5 of the Rules of Procedure, a request for reconsideration will not be granted unless (a) there is new evidence that could be determinative of the case, (b) the party seeking reconsideration did not receive notice of the hearing, (c) the Tribunal’s decision conflicts with established jurisprudence, or (d) other factors exist that outweigh the public interest in the finality of the decision. The Tribunal’s decision that there was no basis to interfere with the merits decision was reasonable.
E. Conclusion and Costs
[38] Mr. Noble’s application for judicial review is dismissed.
[39] The Respondent seeks more than $75,000 in costs on a partial indemnity basis. In our view, the hours claimed by the Respondent’s counsel are excessive. They had six different lawyers on this matter who spent more than 180 hours on this application. The record of proceedings is less than 1000 pages and the same firm represented Carter’s before the Tribunal.
[40] We are of the view that it would be fair, reasonable and proportionate to order Mr. Noble to pay the Respondent $15,000 in costs inclusive of HST and disbursements.
Davies J.
I agree _______________________________
Sachs J.
I agree _______________________________
Muszynski J.
Date: December 23, 2024
CITATION: Noble v. Human Rights Tribunal of Ontario, 2024 ONSC 7129
DIVISIONAL COURT FILE NO.: 167/24
DATE: 20241223
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Davies, Muszynski JJ.
BETWEEN:
Brian Noble Applicant
– and –
The Genuine Canadian Corp. o/a Carter’s Oshkosh Respondent
– and –
Human Rights Tribunal of Ontario Respondent
REASONS FOR JUDGMENT
DAVIES J.
Date of Release: December 23, 2024