ADVERTISEMENTS

The authority of Human Rights Tribunals in Ontario is one that carries with it a degree of controversy, particularly where their decisions intersect with the employer/employee relationship. That is not likely to diminish any time soon, as we have now seen the first incidence of a Divisional Court overturning a Human Rights Tribunal decision:

A Mississauga businesswoman whose home was ordered seized to pay an Ontario Human Rights Tribunal award to a former employee can keep her house ? for now.

The Superior Court struck down the ?fatally flawed? decision as so unfair to defendant Maxcine Telfer - [owner and CEO of Audmax Inc., who employed the complainant and] who represented herself in the hearing ? that it was ?simply not possible to logically follow the pathway taken by the adjudicator.?

That October 2009 decision ordered Telfer to pay $36,000 to a woman who had been her employee for six weeks. Lawyers wanted the sheriff to seize and sell Telfer?s home to collect the money.

The decision, Audmax v. Ontario Human Rights Tribunal - available for review here - lists nine deficiencies in the decision. Molloy J. grounds her decision following the precedents set in Dunsmuir v. New Brunswick, the 2008 Supreme Court administrative law decision which streamlined the guidelines for scrutiny of adminstrative tribunal decisions. Technically, the Court cannot reverse the decision (which, for the interested, can be found here) but only order a new hearing (under statutory law regarding judicial review of human rights tribunals). It has done so.

The court's objections include multiple complaints about procedural unfairness and the correctness (or lack thereof) of the decision:

• They criticize the HRT for failing to advise the defendant, who was self-representing at the time, about her options in regard to adjournment when her key witness was unable to be present for the tribunal.

• They explain at length that the HRT's conclusion that the employer's microwave policy was discriminatory was unsupported by the factual findings at the Tribunal, that the supposed violations were unexplained by the HRT and that the HRT's conclusion lacked a rational basis for the conclusion.

• They state that the decision made regarding the existence of discriminatory policy in the dress code was both reliant on a simple test of the employee's credibility at the tribunal versus the employer's, and that further the HRT's reasoning as to the existence of discrimination in that policy was either flawed or nonexistent.

• They argue that the adjudicator improperly and in a patently unreasonable manner characterized the meeting to discuss the complainant's attire as discriminatory, based on no explanation or analysis whatsoever.

• They point out that although the HRT clearly did not accept the employer's evidence as to the reasons for the employee's termination, the HRT also did not explain why, beyond claiming that the witnesses the employer would have called failed to appear (as mentioned earlier, one was unavailable) and that this failure represented a negative inference against the employer. The court considered this patently unreasonable.

Human rights tribunals in Ontario (and across the rest of Canada, for that matter) have been the subject of intense criticism in the past, with many complaining that HRT decisions such as Ms. Telfer's were not treated with the appropriate seriousness such matters merited.

Certainly, Audmax will serve as fodder for that line of argument. Others have suggested that HRTs are themselves a waste of state resources which would be better allocated to the traditional court system; while Audmax demonstrates that HRTs can be flawed in execution, it does not necessarily follow from the decision that the system must therefore be scrapped.

What Audmax ultimately demonstrates to the reader is that Divisional Court is willing to consider with the utmost seriousness whether HRT outcomes are merited, that they are willing to review them where they feel they are incorrect or unfair, and that although HRTs decisions have been statutorily protected, they are not ironclad.

This is probably for the best. The Courts' willingness to review flawed administrative rulings is ultimately necessary to preserve trust in the system.

- Christopher Bird, Toronto

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