The Divisional Court's ruling in Pieters v. Peel Law Association 2012 ONSC 1048 brought back vivid memories of Professor Bill Bogart's animated and profound lectures at the University of Windsor on the subject of the superior court's supervisory function over inferior tribunals. On the question of the level of deference to be afforded inferior tribunals Professor Bogart would state, "is it a vase or two faces ?" in an effort to communicate the patent lack of consistency post Cupe Local 963 v. New Brunswich Liquor Corp. [1979] 2 S.C.R. 227. The lesson which I understood from those lectures and the post Cupe (supra) jurisprudence on the question of the standard of review and level of deference which inferiror tribunals will receive under judicial review is that the process is far from being logically predictable and like the concept of beauty it remains largely in the eyes of the beholder.
The Divisional court's ruling in Pieters supra provides a splendid example of the "vase and two faces" aspect inherent in judicial review of adminstrative tribunals. On the one hand factual decisions of the Tribunal going to the determination of whether there has been discrimination under the Code are supposed to be afforded "a high degree of deference".(see Audmax v. OHRT 2011 ONSC 315 and Shaw v. Phipps 2010 ONSC 3844) On the other hand, decisions of the Tribunal are required "to be rationally supported and to fall within a range of possible, acceptable outomes that are defensible in fact and law." (Audmax supra)
In Pieters a lawyer of African-Canadian racial background alleged that the Peel Law Association and its librarian violated his rights under the Code to be free from discrimination on the basis of race when she approached him in the lawyer's lounge which they opperate at the Brampton Court House and asked him to identify himself. Following a three-day hearing the Tribunal found the librarian had violated Mr. Pieter's rights under the Code. The Peel Law Association sought judicial review of this decision on the basis that the Tribunal erred by unreasonably determining that a prima facie case of discrimination had been established.
The Divisional Court went on to grant the Peel Law Association an order quashing the Tribunal's decision, an order substituting a decision dismissing the applications before the HRTO and an order of costs against the respondents in the sum of $20,000. The relevant portions of the court's analysis in support of this conclusion are found at pages 6-10 of their decision. A review of their decision shows that the court decided to overturn the Tribunal nothwithstanding the fact that the alleged errors are findings of fact clearly within the ambit of the "high degree of deference" the Tribunal is traditionally afforded.
The rationale provided by the court for what appears to me to be a departure from precedent is rooted in the court's improper application of two leading cases involving adverse impact discrimination as distinct from direct discrimination which was involved in Pieters. The Divisional Court relied on Ontario Director, Disability Support Program v. Tranchemontagne, 2010 ONCA 593 and McGill University Health Centre v. Syndicat des employes de L'Hopital General de Montreal 2007 S.C.C. 4 and went on to charcterize the issues before the Tribunal and the court in the following words:
"The key issues that fall under this heading are whether the
complainants established a distinction or differential treatment
and if so whether they demonstrated a causal nexus between their
race and the disadvantage they claimed to have suffered, on a
balance of probabilities." (at paragraph 20)
In order to illustrate the error of law committed by the Divisional Court in Pieters it is necessary to make some reference to the two cases on which the court relies upon. The important point of distinction is that both of those cases involved adverse impact discrimination and not direct discrimination. Ontario Disability Support Program v. Tranchemontagne supra involved a claim by two alcoholic men who were denied disability benefits under s.5(2) Ontario Disability Support Program Act 1997 S.O. 1997 c. 25 Sched B. That section of the subject legislation disqualified the complainants from eligibility because of their dependence on alcohol. The effect of this denial was to deny the complainants disability benefits - which paid $959 per month and provide them instead with welfare under the Ontario Works Act, 1997 which provided them with a mere $423 per month. The McGill case involved an employer's duty to accommodate where a grievor is unable to return to work in accordance with a collective agreement mandated time frame. A careful reading of those two authorities suggests that the Divisional Court's holding in Pieters requiring "a causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered" is limited to adverse impact discrimination cases and not direct discrimination cases like Pieters supra.
NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance, namely, the level of judicial deference that administrative tribunals are permitted in law and the proper evolution of human rights jurisprudence in Ontario.
The Divisional court's ruling in Pieters supra provides a splendid example of the "vase and two faces" aspect inherent in judicial review of adminstrative tribunals. On the one hand factual decisions of the Tribunal going to the determination of whether there has been discrimination under the Code are supposed to be afforded "a high degree of deference".(see Audmax v. OHRT 2011 ONSC 315 and Shaw v. Phipps 2010 ONSC 3844) On the other hand, decisions of the Tribunal are required "to be rationally supported and to fall within a range of possible, acceptable outomes that are defensible in fact and law." (Audmax supra)
In Pieters a lawyer of African-Canadian racial background alleged that the Peel Law Association and its librarian violated his rights under the Code to be free from discrimination on the basis of race when she approached him in the lawyer's lounge which they opperate at the Brampton Court House and asked him to identify himself. Following a three-day hearing the Tribunal found the librarian had violated Mr. Pieter's rights under the Code. The Peel Law Association sought judicial review of this decision on the basis that the Tribunal erred by unreasonably determining that a prima facie case of discrimination had been established.
The Divisional Court went on to grant the Peel Law Association an order quashing the Tribunal's decision, an order substituting a decision dismissing the applications before the HRTO and an order of costs against the respondents in the sum of $20,000. The relevant portions of the court's analysis in support of this conclusion are found at pages 6-10 of their decision. A review of their decision shows that the court decided to overturn the Tribunal nothwithstanding the fact that the alleged errors are findings of fact clearly within the ambit of the "high degree of deference" the Tribunal is traditionally afforded.
The rationale provided by the court for what appears to me to be a departure from precedent is rooted in the court's improper application of two leading cases involving adverse impact discrimination as distinct from direct discrimination which was involved in Pieters. The Divisional Court relied on Ontario Director, Disability Support Program v. Tranchemontagne, 2010 ONCA 593 and McGill University Health Centre v. Syndicat des employes de L'Hopital General de Montreal 2007 S.C.C. 4 and went on to charcterize the issues before the Tribunal and the court in the following words:
"The key issues that fall under this heading are whether the
complainants established a distinction or differential treatment
and if so whether they demonstrated a causal nexus between their
race and the disadvantage they claimed to have suffered, on a
balance of probabilities." (at paragraph 20)
In order to illustrate the error of law committed by the Divisional Court in Pieters it is necessary to make some reference to the two cases on which the court relies upon. The important point of distinction is that both of those cases involved adverse impact discrimination and not direct discrimination. Ontario Disability Support Program v. Tranchemontagne supra involved a claim by two alcoholic men who were denied disability benefits under s.5(2) Ontario Disability Support Program Act 1997 S.O. 1997 c. 25 Sched B. That section of the subject legislation disqualified the complainants from eligibility because of their dependence on alcohol. The effect of this denial was to deny the complainants disability benefits - which paid $959 per month and provide them instead with welfare under the Ontario Works Act, 1997 which provided them with a mere $423 per month. The McGill case involved an employer's duty to accommodate where a grievor is unable to return to work in accordance with a collective agreement mandated time frame. A careful reading of those two authorities suggests that the Divisional Court's holding in Pieters requiring "a causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered" is limited to adverse impact discrimination cases and not direct discrimination cases like Pieters supra.
NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance, namely, the level of judicial deference that administrative tribunals are permitted in law and the proper evolution of human rights jurisprudence in Ontario.
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