Audmax Inc. et al. v. Human Rights Tribunal (Ont.) et al., (2011) 273 O.A.C. 345 (DC)

• Judge: Whalen, Molloy and Swinton, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: October 20, 2010
• Jurisdiction: Ontario
• Citations: (2011), 273 O.A.C. 345 (DC);2011 ONSC 315

Audmax Inc. v. Human Rights Tribunal (2011), 273 O.A.C. 345 (DC)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. FE.010

Audmax Inc. and Maxcine Telfer (applicants) v. Human Rights Tribunal of Ontario and Seema Saadi (respondents)

(28/10; 2011 ONSC 315)

Indexed As: Audmax Inc. et al. v. Human Rights Tribunal (Ont.) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Whalen, Molloy and Swinton, JJ.

January 18, 2011.

Summary:

Saadi was dismissed from her employment in June 2008, six weeks after she had been hired. She filed a complaint of discrimination against her employer and its owner. Saadi identified herself as a Bengali-Canadian Muslim woman who was legally blind. Saadi alleged that she was discriminated against and harassed because of her race, colour, ancestry, place of origin, ethnic origin, creed and sex, and that this pattern of conduct culminated in her dismissal, based on those same discriminatory grounds. An adjudicator of the Human Rights Tribunal of Ontario found some basis for Saadi's complaint. He awarded Saadi general damages of $15,000 and $21,070 for lost wages. The employer and owner sought judicial review.

The Ontario Divisional Court allowed the application, set the decision aside below and remitted the case to the Tribunal for a new hearing before a different adjudicator.

Administrative Law - Topic 533

The hearing and decision - Conduct of hearing - Duty of administrative body to assist unrepresented party - [See Civil Rights - Topic 7046 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Civil Rights - Topic 7046 ].

Administrative Law - Topic 2490

Natural justice - Procedure - At hearing - Calling witnesses - [See Civil Rights - Topic 7046 ].

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - An adjudicator of the Human Rights Tribunal of Ontario found that an employer and its owner had discriminated against an employee (Saadi) - The employer and owner sought judicial review - They sought leave to admit fresh evidence (two exhibits) on two issues - First, how the adjudicator dealt with the inability of the employer's witness to attend the hearing and the employer's request to file his evidence in writing - Second, how the adjudicator dealt with the employer's attempt to submit into evidence a photograph of clothing alleged to be similar to what Saadi had been wearing on the crucial day when she had been spoken to about the employer's dress code - The Ontario Divisional Court granted leave to admit this evidence - The proposed evidence was very limited in nature - It addressed issues of natural justice that could not be discerned from the record due to the complete lack of any transcript or recording of the proceedings - It was also necessary to properly understand and evaluate the adjudicator's rulings, and the impact of those rulings on the result - This was one of those rare and exceptional cases in which the rules for admission of such evidence had been met - See paragraphs 10 to 15.

Civil Rights - Topic 985

Discrimination - Employment - Duty to accommodate - An adjudicator of the Human Rights Tribunal of Ontario found that an employer and its owner (the applicants) had discriminated against an employee (Saadi) by its dress code policy requiring its employees to wear "business attire" in the workplace - Saadi adhered to the principle of "modest dress and behaviour" and wore a hijab to cover her hair - The adjudicator also held that the manner in which the employer conducted a meeting to discuss Saadi's attire was itself discriminatory based on the breach of a procedural duty to accommodate - The adjudicator took great exception to the presence of a male (Barnett) at the meeting as it failed to consider Saadi's needs and sensitivities as an observant Muslim woman - Barnett was not the employer or an employee but was allegedly relied on by the employer for advice on personnel issues - The Ontario Divisional Court stated that "[t]o the extent this represents a finding that the participation of a man in any meeting about a female employee's attire constitutes sex discrimination, I find this decision to be patently unreasonable. If there were particular sensitivities involving this employee or the issues that were discussed, they are not disclosed in the reasons. On its face, a discussion about what constitutes proper business attire is not one that would require the exclusion of the opposite sex." - See paragraphs 92 and 93.

Civil Rights - Topic 986

Discrimination - Employment - On basis of religion or creed - An adjudicator of the Human Rights Tribunal of Ontario found that an employer and its owner (the applicants) had discriminated against an employee (Saadi) by its dress code policy requiring its employees to wear "business attire" in the workplace - Saadi adhered to the principle of "modest dress and behaviour" and wore a hijab to cover her hair - She had argued that the employer discriminatorily singled her out for corrective action regarding her mode of dress in a manner that constituted discrimination and harassment - She further alleged that the employer failed to accommodate her personal choice with respect to the style of hijab she wore - The hijab in issue was not the traditional hijab but what Saadi considered an elegant form of hijab - The adjudicator concluded that the employer breached the Human Rights Code (Ont.) in relation to the clothing and the hijab - The applicants sought judicial review - The Ontario Divisional Court held that the decision was patently unreasonable - The process by which the adjudicator reached that conclusion was not clear, either in fact or in law - The court saw no line of reasoning that could logically lead to the conclusion that conforming to the employer's business attire dress code would conflict with Saadi's religious beliefs - There was no basis for finding that the employer's imposition of discipline respecting the dress code was in any way directed at, or connected to, Saadi's race or religion - The fact that the employer had no problem accommodating different kinds of headdress in the past, both with respect to Saadi and others, suggested that what was at issue here was a question of style and taste, not religious accommodation - If it was possible for her to wear a religiously acceptable form of hijab that was fully consistent with the dress code (as she had done every day for six weeks), her religious rights were not affected - All that was affected was her sense of style, which apparently was in conflict with that of her employer - See paragraphs 59 to 88.

Civil Rights - Topic 987

Discrimination - Employment - On basis of sex - [See Civil Rights - Topic 985 ].

Civil Rights - Topic 989.1

Discrimination - Employment - On basis of nationality, race or ethnic origin - An adjudicator of the Human Rights Tribunal of Ontario found that an employer and its owner (the applicants) had discriminated against an employee (Saadi) by its policy respecting what food could be warmed in the staff microwave - Saadi had alleged that she was singled out for discriminatory enforcement of the employer's microwave policy based on the intersection of her race, ancestry, ethnic origin and place of origin - The applicants sought judicial review - The Ontario Divisional Court held that the adjudicator's reasons did not disclose a rational basis for the conclusion that there was discrimination against Saadi in respect of the microwave policy - He did not deal with whether there was anything about ethnicity and ancestry generally, or in the particular case of Saadi, that required the reheating of particular foods at lunchtime in the workplace - It was also difficult to discern from the reasons how Saadi's ancestry or ethnic origin related at all to her difficulty with the microwave policy - The conclusion of discrimination was irrational and patently unreasonable - See paragraphs 49 to 58.

Civil Rights - Topic 7046

Federal, provincial or territorial legislation - Commissions or boards - General - Duty of fairness - An adjudicator of the Human Rights Tribunal of Ontario found that an employer and its owner had discriminated against an employee (Saadi) - They sought judicial review, arguing that the the manner in which the adjudicator dealt with the inability of a key witness (Barnett) for the employer to attend the hearing was a denial of procedural fairness - The self-represented owner had attempted to tender a sealed envelope containing a letter from Barnett explaining that he could not attend the hearing because of a family emergency and setting out the substance of his proposed evidence - The adjudicator refused to accept the previously undisclosed letter or to read it - The Ontario Divisional Court held that the owner was unrepresented by counsel at the hearing and not fully conversant with her rights - It was incumbent on the adjudicator to consider the implications of his refusal to accept Barnett's evidence in written form and to provide the owner with some information about her options (requesting an adjournment, etc.) - The failure to even consider the available options was unfair to the unrepresented parties and compromised the overall fairness of the hearing - This constituted a breach of procedural fairness that could, on its own, result in the decision being quashed - The adjudicator compounded the problem, and the unfairness, by drawing an adverse inference from the failure of Barnett to testify on critical issues related to the reason for Saadi's dismissal - See paragraphs 34 to 44.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce evidence - An adjudicator of the Human Rights Tribunal of Ontario found that an employer and its owner had discriminated against an employee (Saadi) - The self-represented owner had attempted to tender a sealed envelope containing a letter from a witness (Barnett) explaining that he could not attend the hearing because of a family emergency and setting out the substance of his proposed evidence - The adjudicator refused to accept the previously undisclosed letter or to read it - The adjudicator drew an adverse inference from the failure of Barnett to testify on critical issues related to the reason for Saadi's dismissal - The employer and owner sought judicial review - The Ontario Divisional Court stated that the drawing of the adverse inference was "particularly problematic" - Barnett was on the witness list - He was willing to testify, and there was every reason to believe he would have testified if he had not been called away unexpectedly on a family emergency - An explanation was provided for his absence - The employer attempted to provide his evidence in writing, which was refused by the adjudicator and no other option for obtaining his evidence was raised by the adjudicator - It was incorrect in law, and patently unreasonable on the facts, to draw an adverse inference in this situation - An adverse inference was appropriately drawn when one would expect a witness to be called and where it was reasonable to infer that the failure to call him was based on the likelihood that his testimony would be unfavourable - Here, an explanation was provided for Barnett's absence, and there was no reason given for not accepting that - See paragraph 99.

Cases Noticed:

Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 29 O.R.(2d) 513 (C.A.), refd to. [para. 15, footnote 3].

Entrop et al. v. Imperial Oil Ltd. (2000), 137 O.A.C. 15; 50 O.R.(3d) 18 (C.A.), refd to. [para. 17, footnote 4].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18, footnote 5].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 19, footnote 6].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 19, footnote 6].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 19, footnote 6].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 26, footnote 11].

Toronto (City) Police Service v. Phipps - see Shaw et al. v. Phipps et al.

Shaw et al. v. Phipps et al. (2010), 271 O.A.C. 305; 2010 ONSC 3884 (Div. Ct.), refd to. [para. 26, footnote 12].

R. v. Owen (T.), [2003] 1 S.C.R. 779; 304 N.R. 254; 173 O.A.C. 285; 2003 SCC 33, refd to. [para. 27, footnote 13].

Mills v. Workplace Safety and Insurance Appeals Tribunal (Ont.) (2008), 237 O.A.C. 71; 168 A.C.W.S.(3d) 679; 2008 ONCA 436, refd to. [para. 31, footnote 16].

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120 (C.A.), refd to. [para. 33, footnote 17].

Razack v. Human Rights Commission (Ont.) (2007), 231 O.A.C. 58 (Div. Ct.), refd to. [para. 33, footnote 17].

Toronto-Dominion Bank v. Hylton (2010), 270 O.A.C. 98; 2010 ONCA 752, refd to. [para. 38, footnote 18].

Kainz v. Potter, [2006] O.T.C. 525; 33 R.F.L.(6th) 62 (Sup. Ct.), refd to. [para. 39, footnote 19].

Cicciarella v. Cicciarella (2009), 252 O.A.C. 156; 72 R.F.L.(6th) 319 (Div. Ct.), refd to. [para. 39, footnote 19].

Kalin v. College of Teachers (Ont.) (2005), 198 O.A.C. 201; 75 O.R.(3d) 523 (Div. Ct.), refd to. [para. 42, footnote 21].

Igbinosun v. Law Society of Upper Canada (2009), 265 O.A.C. 27; 96 O.R.(3d) 138; 2009 ONCA 484, refd to. [para. 42, footnote 21].

Meiorin Grievance - see Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union.

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 51, footnote 24].

Chauhan v. Norkam Seniors Housing Cooperative Association, 2004 BCHRT 262, refd to. [para. 51, footnote 25].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 58, footnote 26].

Gray v. Disability Support Program (Ont.) (2002), 158 O.A.C. 244; 59 O.R.(3d) 364 (C.A.), refd to. [para. 58, footnote 26].

Law Society of Upper Canada v. Neinstein (2010), 259 O.A.C. 313; 99 O.R.(3d) 1; 2010 ONCA 193, refd to. [para. 68, footnote 27].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 71, footnote 28].

R. v. Hall (S.) (2010), 267 O.A.C. 35; 2010 ONCA 421, refd to. [para. 71, footnote 28].

Authors and Works Noticed:

Canadian Bar Association - Ontario, Taking the Tribunal to Court: A Practical Guide for Administrative Law Practitioners (2000), p. 25 [para. 20, footnote 7].

Mullan, David J., Recent Developments in Standard of Review, in Canadian Bar Association - Ontario, Taking the Tribunal to Court: A Practical Guide for Administrative Law Practitioners (2000), p. 25 [para. 20, footnote 7].

Counsel:

Ted Charney and Julian Roy, for the applicants;

Prabhu Rajan, for the respondent, Human Rights Tribunal of Ontario;

Toby Young and Jo-Ann Seamon, for the respondent, Seema Saadi.

This application was heard at Toronto, Ontario, on October 20, 2010, by Whalen, Molloy and Swinton, JJ., of the Ontario Divisional Court. Molloy, J., filed the following reasons for judgment of the court on January 18, 2011.