Prepared for the OBA 2013 Annual Human Rights Update
The Canadian courts have continued to shape our evolving human rights jurisprudence. This paper is intended to provide context for other presenters, with the goal being to survey certain key cases decided during 2012 and 2013. As this overview will hopefully demonstrate, the courts have continued to be quite engaged with the approach being followed by tribunals as they continue to address both procedural and substantive aspects of human rights cases.
2. Johnstone: The Reasonableness Standard and Purposive Approach to Discrimination Protections
The recent decision of the Federal Court of Canada in Canada (Attorney General) v. Johnstone1 provides helpful guidance about the appropriate standard of review with respect to the decisions of Canadian human rights tribunals. While the Johnstone decision focused on the topic of discrimination on the basis of family status as provided for under the Canadian Human Rights Act, there are arguably a number of important concepts arising from the Federal Court's decision which are of more general application.
The lengthy process of seeking redress which Fiona Ann Johnstone has been involved with dates back to 2004, when she sought accommodation with respect to her shift schedules while working for the Canadian Border Services Agency ("CBSA"). In essence, Johnstone, who was returning from work following a maternity leave, asked for a fixed shift schedule as opposed to the rotating schedule which other employees are generally assigned to. In conjunction with this request, Johnstone sought to be scheduled for a sufficient number of hours to be treated as full-time so that she would therefore be entitled to benefits and other opportunities for advancement. While the CBSA agreed to schedule Johnstone on a fixed shift basis, she was not given sufficient hours to qualify as a full-time employee. Before the matter was adjudicated by the Canadian Human Rights Tribunal, there was an initial round of judicial review and appeal based on how the Canadian Human Rights Commission decided at the screening stage that it would not refer the complaint to a hearing.2 Eventually, the Tribunal heard the matter and allowed Johnstone's human rights complaint.
Standard of Review
The findings of the Federal Court in the (second) Johnstone decision which dismissed the Attorney General of Canada's application for judicial review are consistent with the broad trend of deference by Canadian courts to the decisions of human rights tribunals. The Court confirmed that the relevant standards of review of tribunal decisions will continue to be guided by the Supreme Court of Canada's decision in Dunsmuir,3 which recognizes that certain matters will be reviewed to a standard of correctness, and others will be reviewed on the basis of reasonableness. In this regard, deference will continue to be generally appropriate where a tribunal is interpreting its home statute or the tribunal has developed a particular expertise.
With respect specifically to decisions of the Canadian Human Rights Tribunal, the Court in Johnstone noted the important guidance provided by the decision in Mowat4, which affirms the reasonableness standard which applied to review of the Tribunal's determination on the issue of awarding costs. The Court proceeded to adopt similar reasoning with respect to the interpretation of the Canadian Human Rights Act5, finding that an interpretation of "family status" falls within those matters which are within the home statute of the Tribunal. Further, as the Tribunal was adjudicating within its own area of expertise on a question which did not relate to jurisdictional boundaries, the standard of review of reasonableness applied.
Given that the review of the Tribunal's findings with respect to there being prima facie discrimination involves the application of the law to the particular facts of the case, the determination is one which is a question of mixed law and fact. Accordingly, following the framework from Dunsmuir, the Federal Court confirmed that the standard of reasonableness was thereby invoked. The Court proceeded to adopt the same reasoning with respect to the standard of review applicable to the Tribunal's decisions on remedies.
Legal Test for Discrimination
The appellant Attorney General of Canada also unsuccessfully attempted to argue that the Tribunal erred in considering Ms. Johnstone's complaint by not adopting the proper legal test for establishing a prima facie case of discrimination based on family status. The Court's rejection of this argument was founded on its application of the legal test articulated in O'Malley,6which holds as follows:
A prima facie case in this context is one which covers the allegations made in 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.
Based on this framework, the Court upheld the Tribunal's determination that Ms. Johnstone had been subjected to discrimination.
Outcome and Implications
Requests by employees for accommodation both to include due consideration for relevant family obligations and childcare, and to expand the scope of the resulting duty of employers to accede to requests for flexibility, are potentially wide-ranging. One aspect which has perhaps not yet been fully considered is the specifics of how this decision may apply to other workplaces. In this regard, it is important to note that that the operations of the respondent employer, CBSA, are effectively staffed on a 24-hour, 7 day a week basis with a large number of employees, so the argument that "the work is not available" was untenable. In addition, Ms. Johnstone was able to proffer evidence before the Tribunal that other employee scheduling requests, including for religious accommodation or medical reasons, had been accommodated with solutions similar to what she had requested.
A number of the broad statements by the Court in Johnstone are likely to be adopted at the federal and provincial tribunal level going forward. In particular, the case provides current confirmation that human rights legislation will continue to have quasi-constitutional status. In this regard, the legislation will continue to be considered in accordance with the stated purpose in the relevant statutes, with any interpretation issues being decided in a manner consistent with the stated objectives of the legislation, which include being remedial. The Johnstone decision also provides useful guidance on what, on a practical basis, a "reasonable" decision involves – the Tribunal's approach to the complaint involved a reasoned or considered approach that was based on the evidence before the Tribunal. Accordingly, the findings of discrimination were ones which were matters based on clear facts and the application of the Act to those facts.
One aspect of the Johnstone decision which did involve success for the appellant related to one of the remedial orders of the Tribunal. In particular, the CBSA successfully challenged the remedy which required the employer to establish written policies satisfactory to Ms. Johnstone and the Canadian Human Rights Commission. The Federal Court held that although the Tribunal has broad remedial authority, there is no basis in the legislation to issue an order which provides that a person who has been subjected to discrimination is thereby entitled to have a right to participate in the development of remedial policies. As such, this specific item was found to have exceeded the Tribunal's bounds of jurisdiction. This shows a vivid example of a matter where a decision which is "incorrect" will be overturned regardless of the circumstances giving arise to the order.
3. Whatcott: Careful Scrutiny of What Reasonableness Means
The scope of review of human rights decisions was closely examined by the Supreme Court of Canada in its decision in Whatcott.7 The underlying conduct which was the subject of the complaint which was judicially reviewed involved the distribution of flyers which contained content which was critical of homosexuals and four resulting complaints filed with the Saskatchewan Human Rights Commission. The complainants alleged that the flyers, which Mr. Whatcott had distributed in 2001 and 2002 on behalf of Christian Truth Activists, promoted hatred against individuals on the basis of their sexual orientation. The first two flyers were entitled "Keep Homosexuality out of Saskatoon's Public Schools!" and "Sodomites in our Public Schools". The other flyers were identical to one another and were a reprinted classified ads with handwritten comments.
At issue in the case before the Saskatchewan tribunal was the extent to which the content of the flyers and the legislative prohibitions related to this material constituted a reasonable restriction, particularly when considered in the context of Mr. Whatcott's freedom of religion and expression. The tribunal appointed to hear the complaints held that the flyers constituted publications that contravened section 14 of the Saskatchewan Human Rights Code8because they exposed persons to hatred and ridicule on the basis of their sexual orientation. The Tribunal considered this in the context of Mr. Whatcott's right to freedom of religion and expressly held that the relevant provision in the Saskatchewan Code was a reasonable restriction.
The decision also thoroughly reviewed the definition of hatred, and confirmed that an objective standard is to be applied as to "whether a reasonable person, aware of the context and circumstances, would view [an] expression as likely to expose a person or persons to detestation and vilification on the basis of the prohibited ground of discrimination."9
Close Scrutiny of Decision
The Court's review focussed on the wording of section 14 of the Saskatchewan Code, and assessed whether or not these provisions were valid. The Court carefully examined the statutory wording which prohibits conduct which "ridicules, belittles or otherwise affronts the dignity of" individuals. The scrutiny of this prohibition was based on a Charter analysis, with a close line-by-line review of the disputed publications used as a basis to assess whether or not the impugned provisions of in the Saskatchewan Code minimally impaired the free speech rights of the author.
The decision to allow the complaint against Mr. Whatcott was the subject of a judicial review application,10 where the Saskatchewan Court of Queen's Bench upheld the Tribunal's decision. Kovach J. concluded that the relevant provision in the Saskatchewan Code must be interpreted in accordance with the standard of hatred and contempt articulated in the leading case of Taylor. In this regard, the Court of Queen's Bench decision held that the hatred and contempt framework applies so as to prohibit only "communication that involves extreme feelings of detestation, calumny and vilification".11 In upholding the Tribunal's decision, Kovach J. held that the flyers contravened the relevant provision, largely on the basis that the documents equated homosexuals with pedophiles and child abusers.
The subsequent decision by the Saskatchewan Court of Appeal12 held that the provisions of section 14 of the Saskatchewan Code were constitutional, but overturned the Tribunal's decision with respect to whether or not the conduct was prohibited. The appeal court panel found that the flyers did not contravene the Saskatchewan Code and highlighted the importance of context, including the genuine curriculum issues being considered at the time, and the necessity of considering competing rights that might be in issue. Through concurring judgments, the Court of Appeal emphasized the importance of carefully analyzing the alleged hate communication, and drew a distinction between content which commented on a particular activity (in this case a type of sexual conduct) as opposed to individuals (those of same-sex orientation). The concurring judges all held that the right to express genuine beliefs on moral issues as part of a public debate about schooling issues lies at the heart of protected speech. Thus, although the relevant Saskatchewan Code provisions were reasonable, the specific findings of the Tribunal were held to be wrong on the facts of the case.
Standard of Review
From the perspective of process, the Whatcott decision confirmed the recent trend of focussing on the Dunsmuir framework in the context of judicial review. The timing of the appellate decisions was, however, such that the Supreme Court of Canada was required to clarify the appropriate standard of review as applied to the Tribunal's interpretation of section 14 of the Saskatchewan Code.13 The Court of Queen's Bench and the Court of Appeal both adopted a correctness standard based on the reasoning that the issues raised turned on important points of law and interpretation of the Constitution. In applying the Dunsmuir framework, the Supreme Court of Canada highlighted the principle of deference applicable to an administrative tribunal when it is interpreting its home statute. In the specific case, the Tribunal's decision was held to be well within its expertise, and involved interpreting the Saskatchewan Code and applying it to the facts before it. The decision involved an analysis based on the Taylor precedent regarding hate speech, and otherwise did not involve questions of law that are of central importance to the legal system outside its expertise. As a result, the Supreme Court of Canada held that the standard of review with respect to whether or not the flyers contravened the Saskatchewan Code must be reasonableness. This contrasts to the scrutiny applicable to the review of the constitutionality of section 14 of the Saskatchewan Code, which is reviewable to the standard of correctness.
In considering the Tribunal's specific decisions regarding the flyers, the Supreme Court of Canada allowed the appeal in part. The conclusions in the first instance with respect to the first two flyers were held to be reasonable based on applicable law regarding hate speech. The text of these flyers was found to portray the targeted group as a menace and thus threatened the safety and well-being of others. The documents also made reference to respected sources in an effort to attempt to lend credibility to the views expressed. The Court also stressed that the specific content created a tone of hatred. In the circumstances, it was not unreasonable for the Tribunal to conclude that the flyers were more likely than not to expose homosexuals to hatred.
The outcome and finding against Mr. Whatcott did not apply to the other two flyers, where the Court held that the Tribunal's decision was unreasonable and could not be upheld. While the content of the flyers was found to be offensive, the Tribunal was determined to have erred in applying the provisions of the Saskatchewan Code to the facts before it based on the proper legal test. The Court held that it could not reasonably be found that a reasonable person, aware of the relevant context and circumstances, would consider the flyers to have exposed persons of same-sex orientation to detestation and vilification. Taken together, these outcomes reflect the close scrutiny which reviewing courts have applied in their review of decisions by human rights tribunals.
4. Dream Team: Deference to Tribunals on "Preliminary" Issues
A further example of the continued deference by courts to the decisions of human rights adjudicators emerges from the decision in Dream Team.14 The City of Toronto sought judicial review of two interim decisions of the Ontario Human Rights Tribunal which had refused the City's requests for early dismissal of the relevant application under the Ontario Human Rights Code15(the "Ontario Code"). In a succinct decision on behalf of a three person panel of the Ontario Superior Court of Justice, Swinton J. dismissed the application for judicial review on the basis that the decisions by the Tribunal were reasonable, and the application for judicial review was premature.
The Dream Team is an organization which engages in advocacy with respect to supportive housing. In their application to the Tribunal, the group sought to challenge a number of City of Toronto zoning by-law provisions which impose restrictions on premises that are used as group homes for persons with mental or physical disabilities. The Dream Team application claimed that certain named individuals had experienced discrimination on the basis of disability both in relation to services and to occupancy of accommodation. They therefore argued that the City's by-law restrictions on the number and location of group living facilities had a negative impact on their dignity, treatment, and ability to participate in the community. The remedy which the applicants seek is to have the Tribunal order that the mandatory separation distances be removed from the by-laws.
The City attempted unsuccessfully to have the application dismissed on a summary basis, arguing that the Tribunal does not have jurisdiction to grant the remedy sought and that the case does not disclose a prima facie case of discrimination. The City characterized the issue of jurisdiction as a legal question which could be determined without evidence or factual context. More specifically, the City submitted that the Tribunal could not grant the remedies sought, and the by-laws could not be characterized as a "service" which attracted the protections from discrimination contemplated by the Ontario Code. The Tribunal determined that it was premature to consider the question of jurisdiction to award remedies without the proper evidentiary foundation on what were admittedly novel issues, and held that the matter required full argument at the end of a hearing. In making this decision, the Tribunal held that it was not plain and obvious that the application was outside the scope of the Ontario Code.
Review of Tribunal's Process
The City's application for judicial review asserted that the Tribunal had been incorrect in how it dealt with the jurisdictional issue at the preliminary stage. In framing the issue in this manner, the City argued that the dispute involved a true question of jurisdiction which triggered review to the correctness standard. The respondent and the Ontario Human Rights Commission, which intervened in the case, successfully argued that the reasonableness standard of review applied based on Dunsmuir. In upholding the approach followed by the Tribunal, the Court noted that the jurisdictional question had yet to be decided, and no determination had been made about the merits of the City's argument. The approach taken by the Tribunal was instead held to be a procedural determination about how the Dream Team's application should be adjudicated.
The approach followed by the Tribunal was held to be a bona fide interpretation of the Ontario Code and a determination about the procedure to be followed for the disposition of the application. The Court noted that the relevant provisions in the Ontario Code, which are mirrored in human rights legislation across the country, allow the Tribunal to deal with applications by way of adopting procedures and practices provided for in its rules and which, "in its opinion offer the best opportunity for a fair, just and expeditious resolution of the merits of the application".16 With respect to the specific conduct being challenged, the Court accepted that the Tribunal had made a reasonable decision about the procedures to be adopted in order to make a determination with respect to the application, particularly given that the City had not been prevented from raising its jurisdictional arguments at a later stage.
The Court's finding that the Tribunal had been reasonable was based in no small measure on the clear reasons which had been provided for rejecting the City's early dismissal application. The Tribunal was found to have reasonably determined that, at least as an initial matter and without the benefit of evidence and argument, it was not plain and obvious that the application would fail. There was thus no basis to review the Tribunal's decision based on its merits.
The Court also held that the City's application for judicial review should be dismissed because it was at best premature. Under this heading, the Court noted that judicial review of interim decisions of administrative tribunals will occur only in exceptional cases. This approach is followed since the courts are reluctant to fragment and delay administrative proceedings before specialized bodies which are entitled to be the masters of their own procedures. The Superior Court's deference to the approach followed by the Tribunal relied on the reasoning of the Supreme Court of Canada in the Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission)17decision, which affirms the importance of deference to preliminary decisions of tribunals.
The Court in Dream Team also emphasized that relevant provisions of the Ontario Code reinforce the need for caution when considering interim procedural decisions. The wording of subsection 48(3) of the Ontario Code provides for the approach to be followed in situations where the Tribunal fails to comply with the practices and procedures prescribed by its rules, or the exercise of discretion under the rules occurs in a particular manner. The subsection states that any such "improper" decision is not to be set aside on an application for judicial review "unless the failure or the exercise of discretion caused a substantial wrong which affected the final disposition of the matter."18 The Court therefore emphasized the importance of reviewing interim decisions in the context of their effect, if any, on the Tribunal's final decision. Based on the specific facts before the Tribunal, the Court found that it was premature to engage in judicial review of the Tribunal's interim decisions regarding the application.
5. Moore: A Close Review of Decisions, Processes and Remedies
Close review by the courts of human rights tribunal decisions is also evident from the decision in Moore19 which arose after Frederick Moore filed a human rights complaint against the local School District and the B.C. Ministry of Education. The core allegation was that Moore's son Jeffrey had been discriminated against because of a learning disability and had been improperly denied a service customarily available to the public. The specific decision which was challenged was the District's decision to cease operating a program which Jeffrey would have benefited from.
After 43 days of hearings, the British Columbia Human Rights Tribunal found that the failure to provide the needed support and meaningful access to appropriate educational opportunities constituted discrimination. The Tribunal held that a prima facie case for discrimination had been established, and the District had failed to justify its conduct by proffering evidence of any needs-based analysis or assessments which might have been made to consider available alternatives. The Court disregarded the arguments of the respondents regarding budgetary constraints, finding that decisions had been made to disproportionately cut special needs programs. The Tribunal made a broad range of remedial orders, and also ordered that the family be reimbursed for the tuition costs of private schools where the child was enrolled to get necessary instruction.
On the application for judicial review,20 Dillon J. set aside the Tribunal's decision, finding that there was no discrimination. She found that the decisions of the District and the Ministry had been improperly compared to other special needs students, not to the general student population as the Tribunal had done. The Tribunal's decision was therefore set aside based on what was held to be an improper analysis of the discrimination question.
The B.C. Court of Appeal21 proceeded to dismiss the appeal, and supported the B.C. Supreme Court finding on judicial review that the improper comparison analysis resulted in a flawed decision at the Tribunal level. The approach of comparing the specific student to the general student population was essentially an invitation to a review of education policy and its application, which the Court of Appeal concluded was inconsistent with the remedial purpose of human rights legislation.
The Supreme Court of Canada held that the appeal should be substantially allowed, and the decision of the Tribunal was restored. The Court emphasized the legislative purposes of the B.C. School Act22 including the provision of access to educational opportunities for all learners, could not be disapplied to those with special needs such as the complainant. If the comparator approach adopted in the judicial review decision and affirmed by the B.C. Court of Appeal were followed, the province could in theory have eliminated all special needs programs and yet been immune from scrutiny or any potential finding of discrimination. The Supreme Court of Canada thus held that, for there to be a proper assessment of whether or not there was a meaningful level of access to educational opportunities, full consideration must be given to the approach taken to the overall population of students.
Framework for Discrimination Cases
The Court's decision provided helpful guidance in confirming the approach to be followed in discrimination cases. In order to demonstrate prima facie discrimination under section 8 of the B.C. Human Rights Code23(the "BC Code"), complainants are required to show that: 1. they have a characteristic protected from discrimination; 2. they have in fact experienced an adverse impact respecting a service ordinarily available to the public; and 3. that the protected ground or characteristic was a factor in the adverse impact. Once a complainant establishes a prima facie case, the burden shifts to the respondent to justify the relevant conduct or practice. If no such justification can be established, then discrimination will be found to have occurred. In many respects, this reflects a trend in the courts to return to the foundation principles provided for in early Charter and human rights cases.
The Supreme Court of Canada focused on the Tribunal's assessment of the process followed by the District to make its decisions, and whether or not these decisions resulted in discrimination. The Court carefully considered the record in the proceedings, and held that it was not appropriate to disturb the Tribunal's findings that the District had other (non-discriminatory) options available to address its budget crisis. In connection with this review, the Court placed prominence on the finding of the Tribunal that the District failed to undertake any assessment, financial or otherwise, of what alternatives were available to accommodate special needs students. This failure undermined the District's position that it essentially had no choice but to deny service to the complainant. As the Court emphasized, before a party can determine that it has no other choice, it must at least consider what those other choices are.
Review of Remedies
One aspect of the Moore decision which may not have received sufficient attention relates to the Court's findings with respect to the systemic remedies which were ordered by the Tribunal. The specific remedies which were challenged on judicial review involved orders (of which the Tribunal remained seized) regarding how British Columbia allocates funding and the creation of a mechanism for the delivery of service to students with special needs. After finding that Jeffrey Moore had suffered discrimination at the hands of the District, the Tribunal held that the broader policies of the District and Province constituted systemic discrimination. This finding was rejected by the Supreme Court of Canada, who commented unfavourably on the Tribunal's decision to approach discrimination in a binary manner involving individual and systemic discrimination.
The Court held that relevant remedies for an individual complaint can have a "systemic" (or more wide-ranging) impact, but the actual remedies which a tribunal can direct must flow from the claim. In the specific case, the Tribunal was tasked with determining whether or not Jeffrey Moore had been subjected to discrimination. For such a review, it was possible to consider systemic evidence, including details of "big picture" decisions which impacted the complaint, as part of determining how to dispose of the complaint. However, the Court emphasized that it was not necessary or indeed proper to transform the proceedings into "an extensive inquiry into the precise format of the provincial funding mechanism or the entire provincial administration of special education".24 This effort, said the Court, would make the role of the adjudicator tasked with dealing with a specific complaint more in the nature of a Royal Commission. As a result, the systemic remedies were overturned. This determination provides helpful guidance on the limits applicable to the remedial authority of human rights tribunals, particularly when considering cases involving claims pertaining to alleged discrimination arising from the delivery of services to the public.
6. Pieters: Deference Has Its Limits
The decision in Pieters25, which demonstrates that judicial deference has its limits, involved review of an Ontario Human Rights Tribunal determination that two individuals had been subjected to discrimination. The case involved a successful application for judicial review by the Peel Law Association and Melissa Firth, with the result being that the decision of the Tribunal was overturned.
The case arose out of an incident on May 16, 2008 in the lawyers lounge at the Brampton Courthouse, which is a facility operated by the Peel Law Association (PLA). The PLA's policy is that only lawyers and law students are permitted to use the lounge, and there was a sign on the premises which stated "lawyers only". The personal respondent Firth is a librarian who approached the applicants, Selwyn Pieters and Brian Noble, who are self-identified as black, and asked them to confirm that they were lawyers or law students. In their complaint to the Tribunal, the lawyers alleged that they had been subjected to racial profiling and were subjected to differential treatment because of their race.
The Tribunal found that there had been discrimination, with race being determined as a factor in why Ms. Firth approached the complainants. This finding was based on the evidence that she did not ask other persons in the lounge (which including people who were white and non-black visible minorities) for identification. The Tribunal found that the individuals had been approached in a demanding and aggressive fashion, which was indicative of their treatment being influenced by their race and colour.
Standard of Review
In considering the judicial review application initiated by the PLA and Ms. Firth, the Court began its analysis by noting that the parties agreed that the relevant standard of review of the Tribunal's decision was reasonableness. This was based on the consensus view that the central issues in the case involved issues of fact, and the application of the law to the facts. The applicants also conceded that, within the reasonableness standard as outlined in Dunsmuir, the highest degree of deference should be shown to the Tribunal with respect to its findings. The applicants asserted, however, that the determination that the incident resulted in a prima facie case of discrimination was erroneous based on the facts.
Unreasonableness of Tribunal Decision
The Court noted that the basis for the Tribunal's finding of a prima facie case of discrimination rested on specific findings, including that the complainants were the only black men in the lounge; they were the only persons Ms. Firth chose to question; no one else in the lounge was questioned; and she acted in an improper manner. However, these conclusions of the Tribunal were held to be inconsistent with certain other findings of fact, including that the complainants were the closest to the door and were the first persons who Ms. Firth would have encountered. Further, the Court noted that, based on the Tribunal's own findings, she routinely checked identification as part of her responsibility for security of the lounge, and nothing about her conduct was irregular. The result was what were essentially contradictory findings by the Tribunal.
A decision to find differential treatment was therefore held to be unreasonable, with the Court determining that there was insufficient evidence to draw such a conclusion. Further, the fact that the incident was contentious was not a basis to find differential treatment. Indeed, there were no reasonable grounds to suggest that Ms. Firth's "aggressive and demanding manner" had been adopted exclusively because the complainants were black. Other similar requests for identification had been made in the past, including when Ms. Firth had questioned non-racialized persons, and these situations had also resulted in difficult moments. The Court thus held that the Tribunal had no evidentiary basis to conclude that the complainants had been subjected to the required differential treatment which is a necessary element of a discrimination claim.
The Court found that the Tribunal had improperly reversed the burden of proof, and thus inappropriately placed the PLA and Ms. Firth in the untenable position of trying to prove a negative. More specifically, based on the findings detailed above, the reasoning of the Tribunal forced the respondents to show that the manner in which routine duties were carried out was in no way motivated by race and colour. This amounted to a reviewable error, and a decision on judicial review to overturn the finding of discrimination.
Lack of Nexus
The Superior Court panel in Pieters also proceeded, for the sake of completeness, to review other issues raised by the applicants. Even if there had been a basis to find differential treatment (which there was not based on the reasons detailed above), there was no evidence before the Tribunal which established any nexus or connection between the distinction and any alleged disadvantage suffered. The Court held that the approach which the Tribunal followed, which was to use police racial profiling cases to infer the relevant nexus, was inappropriate in the circumstances and thus resulted in a framework which was "misconceived".26 In this regard, the Court held as follows: "A complainant cannot merely point to his or her membership in a racialized group and an unpleasant interaction to establish a prima facie case of discrimination."27 While racial profiling may be the basis for a discrimination complaint, it must still be established on the facts of the particular application.
The decision to overturn the Tribunal's finding of discrimination was based on the fact that the decision could not be rationally supported from the evidence. The Court emphasized that there was no basis to establish differential treatment, and there was no nexus or causal link between the conduct of the PLA and Ms. Firth and the complainants. The result was an error in unreasonably finding that a prima facie case of discrimination had been made out and thus an improper conclusion that the onus lay with the respondent to disprove discrimination. The Court proceeded to order that the decision be quashed, and the applications to the Tribunal were dismissed. It will be interesting to see whether or not this outcome will prevail following the renewal of the proceedings by the Ontario Court of Appeal.
7. Concluding Observations
As stated at the outset, the intent of this paper has been to provide an overview of recent key decisions in order to provide context for other panel members. While others will no doubt have more detailed observations and commentary, the following trends can be discerned from the decisions reviewed above:
- the review standard from Dunsmuir continues to be regularly applied, with findings by tribunals with respect to discrimination being reviewed on a standard of reasonableness;
- reviewing courts remain generally deferential to the decisions made by human rights tribunals, particularly when the matters in issue involve decisions with respect to the tribunal's home statute;
- the legal test for prima facie discrimination and the framework applied by tribunals in this area continues to be based on established jurisprudence, which includes a purposive application of applicable legislation;
- in cases where the validity of legislation is in issue, the courts will review the relevant provisions based on a correctness standard;
- when competing rights are in issue, the specific reasons for reaching a particular determination regarding discrimination will be closely reviewed;
- the courts will show broad deference to how tribunals decide to deal with complaints, and the review of procedural or interim decisions will only be considered in exceptional cases; and
- one area where parties have had some success through judicial review relates to remedies and challenges to overly broad or technically flawed orders.
The author hopes that this provides some modest guidance with respect to how courts and tribunals might approach relevant cases going forward.
1 2013 FC 113 ("Johnstone").
2 Johnstone v. Canada (Attorney General), 2007 FC 36, and Canada (Attorney General) v. Johnstone, 2008 FCA 101.
3 Dunsmuir v. New Brunswick, 2008 SCC 9.
4 2011 SCC 53.
5 RSC 1985, c H-6.
6 Ontario Human Rights Commission v. Simpson-Sears Limited,  2 SCR 536.
7 Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 ("Whatcott").
8 S.S. 1979, C.S-24.1 (the "Saskatchewan Code").
9 SCC reasons at para 59, based on the reasoning in Canada (Human Rights Commission) v. Taylor  3 SCR 892.
10 2007 SKQB 450 (Can LII).
11 at para 21.
12 2010 SKCA26, 346 Sask. R. 210.
13 The Saskatchewan Court of Queen's Bench decision was issued prior to the Supreme Court of Canada's decision in Dunsmuir.
14 City of Toronto v. The Dream Team, 2012 ONSC 3904 (Can LII) ("Dream Team").
15 R.S.O. 1990, c. H.19.
16 See Dream Team at para 16, citing the Tribunal's reasons where referred to s. 40 of the Ontario Code.
17 2012 SCC 10 (CanLII).
18 See Ontario Code ss 48(3).
19 Moore v British Columbia (Education) 2012 SCC 61 ("Moore").
20  10 W.W.R. 518 (BCSC).
21  3 W.W.R. 383.
22 S.B.C. 1989, c.61.
23 RSBC, 1996, c.210.
24 See Moore at para 64.
25 Peel Law Association v. Pieters, 2012 ONSC 1048 ("Pieters"). Note also that leave to appeal was subsequently granted by the Ontario Court of Appeal in matter M41116 on June 25, 2012.
26 See Pieters at para 43.
27 See Pieters at para 44.
The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.
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