McKay v. Toronto Police Services Board ruling highlights inconsistencies in HRTO adjudicative process

The Ontario Human Rights Tribunal's recent decision in McKay v. Toronto Police Services Board et al 2011 HRTO 499 provides a splendid example of the apparent struggle that this adjudicative body is having in developing a consistent and logical legal framework for its decisions. This recent ruling finding that a Toronto Police Service officer racially profiled an Aboriginal complainant stands in stark contradiction to the Tribunal's decision in Clennon v. Toronto East General Hospital 2009 HRTO 1242 - an allegation of age discrimination in the firing of a long-term obstetrical nursing manager who was fired "without cause" and denied common law severance unless she signed a release acknowledging that her rights under the Code were not violated by the employer.

In McKay the Tribunal subjects the evidence to a level of scrutiny that is commensurate with the quasi-contitutional nature of these statutory rights. Vice Chair Edna Chadha clearly states in her reasons the fundamental part that credibility plays in the adjudication of these claims. She cites and applies established legal authorities such as Faryna v. Chorney [1952 2 DLR 354 and applies the principles articulated therein to the facts. She recognizes and articulates the key concepts for evaluating and scrutenizing evidence - namely - credibility and reliability. She points out that they are distinct concepts. Credibility she indicates refers to the honesty and sincerity of the witness while reliability deals with the accuracy and faliability. She states in her reasons and therefore recognizes that a tribunal is entitled to accept or reject some, all or none of a witness' evidence. In this case the Tribunal actually evaluates and weighs all of the evidence - viva voce and documentary.

In Clennon the Tribunal employs a radically different approach. Here the Tribunal ruled that the employer fired Mrs. Clennon for a non-discriminatory motive, namely, poor performance. This was based on her supervisor reciting a litany of unproven allegations of poor performance which she claimed to rely upon in making her decision to terminate. The Tribunal received this evidence characterizing it as non-hearsay - holding that it went to the supervisors state of mind and establishing that she did not rely on age to terminate. In this case the Tribunal did not assess credibility and reliability of the evidence even though the Tribunal made significant credibility findings against the supervisor who testified. The Tribunal found against her on three crucial evidentiary points in the case. The first two focussed on two statements she made to Mrs. Clennon suggesting that she ought to take early retirement and the other was that she told Mrs. Clennon that she was dismissed from her previous position at Humber River Regional Hospital. These adverse credibility findings are further compounded by the Tribunal's finding that none of the alleged incidents relied upon as poor performance were brought to Mrs. Clennon's attention as performance issues and were very poorly documented. The Tribunal even found that the supervisor who effected the dismissal did not speak truthfully to the vice-president who authorized it.

Commentary:

The claim that the Tribunal possesses expertise in the areas within its jurisdiction is a very hallow one in light of the above. Labour relations and securities regulations are clearly areas that require some special knowledge for the proper adjducation of rights in those areas. I question whether the same is true for human rights. At the end of the day the proper adjudication of a human rights case boils down to the assessemnt and evaluation of the evidence. It is generally a he said she said inquiry. Tribunals of this nature do not hold any monopoly on the skill and legal wisdom needed to assess and evaluate evidence in accordance with law. There is no expertise there that the courts ought to defer to.

NOTE: This piece is written for the sole purpose of encouraging debate on a matter of social importance - namely - the proper adjudication of human rights in the Province of Ontario.