Tomen v. Human Rights Commission (Ont.), (1995) 83 O.A.C. 161 (DC)

• Judge: Boland, Rosenberg and Then, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: June 21, 1995
• Jurisdiction: Ontario
• Citations: (1995), 83 O.A.C. 161 (DC)

Tomen v. HRC (1995), 83 O.A.C. 161 (DC)

MLB headnote and full text

Ontario Human Rights Commission (commission/respondent) and Margaret Tomen, Linda Logan-Smith (complainants/respondents) v. Ontario Teachers' Federation (respondent/appellant) and Ontario Public School Teachers' Federation (respondent/respondent) and Federation of Women Teachers' Associations of Ontario, Ontario English Catholic Teachers' Association and Association des Enseignantes et des Enseignantes Franco-Ontariens (intervenors/appellants) and Ontario Secondary School Teachers' Federation (intervenors/respondent)

(No. 271/94; 273/94)

Indexed As: Tomen v. Human Rights Commission (Ont.)

Ontario Court of Justice

General Division

Divisional Court

Boland, Rosenberg and Then, JJ.

June 21, 1995.

Summary:

The Ontario Teachers' Federation (OTF) passed a bylaw which required all women who taught elementary school to be mem­bers of the Federation of Women Teachers' Association of Ontario (bylaw, s. 2(a)) and all men who taught elementary school to be members of the Ontario Public School Teachers' Federation (bylaw, s. 2(c)). Two teachers complained to the Ontario Human Rights Commission that s. 2(a) and (c) discriminat­ed on the basis of sex, contrary to the Human Rights Code, s. 6. A board of in­quiry held that there was "unlawful dis­crimination on the basis of gender" by OTF et al. which was not justified under s. 14(1). OTF et al. appealed. The two teachers ap­plied to quash the appeals on the ground that the order of the board of inquiry was not a final decision.

The Ontario Divisional Court, in a decision reported 73 O.A.C. 383, dismissed the teachers' application stating that the order appealed from was a final decision.

The Ontario Divisional Court, Boland, J., dissenting, in the decision reported below, dismissed OTF et al.'s appeal.

Administrative Law - Topic 9118

Boards and tribunals - Judicial review - Curial deference to decisions of tribunals -A board of inquiry under the Ontario Human Rights Code held that a bylaw passed by the Ontario Teachers' Federation (OTF) unlawfully discriminated on the basis of sex (Human Rights Code, s. 6) - OTF et al. appealed - The Ontario Divi­sional Court stated that although s. 42(3) of the Code provided "that 'the court may substitute its opinion for that of the board' ... it has subsequently been estab­lished by the Supreme Court of Canada that judicial deference should be granted with regard to findings of fact by the board of inquiry that had the benefit of hearing all of the evidence and seeing all of the witnesses ..." - The board deter­mined that the bylaw was an injury to the complainants' dignity and therefore dis­criminatory - This was a finding of fact - The appeal was dis­­missed.

Civil Rights - Topic 987

Discrimination - Employment - On basis of sex - [See Civil Rights - Topic 1066 ].

Civil Rights - Topic 990

Discrimination - Employment - Affir­mative action program - The Ontario Teachers' Federation (OTF) passed a bylaw which required all women who taught elementary school to be members of the Federation of Women Teachers' Associ­ation of Ontario (FWTAO) (bylaw, s. 2(a)), and all men who taught elementary school to be members of the Ontario Pub­lic School Teachers' Federation (OPSTF) (bylaw, s. 2(c)) - Two teachers success­fully complained to the Ontario Human Rights Commission that s. 2(a) and (c) discrimi­nated on the basis of sex, contrary to the Human Rights Code, s. 6 - Further the board held that the discrimination was not justified under s. 14(1) - OTF et al. appealed, arguing that the FWTAO fell within the scope of s. 14(1) because it was a program representing a "historically disadvantaged group" - The Ontario Divi­sional Court dismissed the appeal - See paragraphs 34 to 45.

Civil Rights - Topic 1025

Discrimination - Membership in organization or association - Inclusion based on sex - [See Civil Rights - Topic 1066 ].

Civil Rights - Topic 1066

Discrimination - By sex - What consti­tutes - The Ontario Teachers' Federation (OTF) passed a bylaw which required all women who taught elementary school to be members of the Federation of Women Teachers' Association of Ontario (bylaw, s. 2(a)) and all men who taught elementary school to be members of the Ontario Pub­lic School Teachers' Federation (bylaw, s. 2(c)) - Two teachers complained to the Ontario Human Rights Commission that s. 2(a) and (c) discriminated on the basis of sex, contrary to the Human Rights Code, s. 6 - A board of inquiry held that there was "unlawful discrimination on the basis of gender" by OTF et al. which was not jus­tified under s. 14(1) - OTF et al. appealed - The Ontario Divisional Court dismissed the appeal where the board's decision was reasonable.

Civil Rights - Topic 5586

Equality and protection of the law - Af­firmative action programs - Particular programs - [See Civil Rights - Topic 990 ].

Civil Rights - Topic 7086

Federal or provincial legislation - Boards of inquiry - Conduct of hearing - A board of inquiry under the Ontario Human Rights Code held that a bylaw passed by the Ontario Teachers' Federation (OTF) un­lawfully discriminated on the basis of sex (Human Rights Code, s. 6) - OTF et al. appealed arguing, inter alia, that the board improperly managed the inquiry - The Ontario Divisional Court re­viewed the procedure followed by the board and held that the "method of pro­ceeding by the board was appropriate" - The appeal was dis­missed - See para­graphs 46 to 51.

Education - Topic 6151

Teachers - Employment - General - The Ontario Divisional Court referred to a dis­cussion of the history of the Ontario Teachers' Federation and the history of education in Ontario - See paragraphs 18 and 83 to 163.

Education - Topic 6164

Teachers - Employment - Union mem­bership - [See Civil Rights - Topic 1066 ].

Cases Noticed:

Bhadauria v. Seneca College, [1981] 2 S.C.R 181; 37 N.R. 455; 124 D.L.R.(3d) 193, refd to. [paras. 20, 59].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81; 93 D.L.R.(4th) 346, refd to. [para. 20].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1; 100 D.L.R.(4th) 658, refd to. [para. 21].

University of British Columbia v. Berg, [1993] 2 S.C.R. 353; 152 N.R. 99; 26 B.C.A.C. 241; 44 W.A.C. 241; 102 D.L.R.(4th) 665, refd to. [para. 21].

Large v. Stratford (City) et al. (1993), 68 O.A.C. 136; 16 O.R.(3d) 385 (C.A.), refd to. [para. 21].

Eaton v. Board of Education of Brant County (1995), 77 O.A.C. 368 (C.A.), consd. [paras. 23, 80].

Andrews v. Law Society of British Co­lumbia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, refd to. [paras. 24, 63].

Human Rights Commission (Ont.), Allan and Wilson v. Chrysalis Restaurant En­terprises Inc. et al. (1987), 24 O.A.C. 27; 42 D.L.R.(4th) 752 (Div. Ct.), refd to. [para. 29].

Rocca Group Ltd. v. Muise (1979), 22 Nfld. & P.E.I.R. 1; 58 A.P.R. 1; 102 D.L.R.(3d) 529 (P.E.I.C.A.), refd to. [para. 29].

Ontario Human Rights Commission and O'Malley v. Simpson Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241; 23 D.L.R.(4th) 321; 9 C.C.E.L. 185; 17 Admin. L.R. 89; 86 C.L.L.C. 17,002, refd to. [para. 29].

Janzen and Govereau v. Pharos Restaurants and Grammas et al., [1989] 1 S.C.R. 1252; 95 N.R. 81; 58 Man.R.(2d) 1; 10 C.H.R.R. D/6205, refd to. [para. 29].

Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161; 40 D.L.R.(4th) 193; 27 Admin. L.R. 172; 87 C.L.L.C. 17,022, refd to. [para. 29].

Lavigne v. Ontario Public Service Employees Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241; 81 D.L.R.(4th) 545, consd. [paras. 32, 77].

Roberts et al. v. Ontario et al. (1994), 73 O.A.C. 20; 19 O.R.(3d) 387 (C.A.), refd to. [para. 39].

Blainey v. Ontario Hockey Association (1986), 14 O.A.C. 194 (C.A.), consd. [para. 41].

Tomen et al. v. Federation of Women Teachers' Association of Ontario et al. (1987), 61 O.R.(2d) 489 (H.C.), upheld (1989), 34 O.A.C. 343; 70 O.R.(2d) 48 (C.A.), leave to appeal to S.C.C. denied, [1991] 1 S.C.R. xv; 136 N.R. 408; 50 O.A.C. 80, refd to. [para. 42].

Statutes Noticed:

Human Rights Code, R.S.O. 1990, c. H-19, sect. 2(c) [para. 54]; sect. 6 [para. 6]; sect. 14(1) [para. 7]; sect. 19(2) [para. 41]; sect. 42(3) [para. 19].

Teaching Profession Act, R.S.O. 1990, c. T-2, sect. 3 [para. 14]; sect. 5(1) [para. 4].

Authors and Works Noticed:

Hall-Dennis Report, Patterns for Pro­fes­sionalism, generally [para. 141].

Counsel:

L. Thomas Forbes and J. Lord, for the appellants, Ontario Teachers' Federation;

Mary Eberts, Elizabeth Shilton and Karen Schucker, for the appellants/intervenors, Federation of Women Teachers' Associ­ation of Ontario;

Paul J.J. Cavalluzzo, for the appellants/ intervenors, Ontario English Catholic Teachers' Association;

Sean T. McKee, for the ap­pellants/intervenors, L'Association des Enseignantes et des Enseignantes Franco-Ontariens;

Janet Minor, for the respondent, Ontario Human Rights Commission;

Russell G.I. Juriansz and S. Margot Blight, for the respondents, Ontario Public School Teachers' Federation and the Complainants;

Maurice A. Green, for the respondents/ intervenors, Ontario Secondary School Teachers' Federation.

This appeal was heard on March 27 to 31, 1995, before Boland, Rosenberg and Then, JJ., of the Ontario Divisional Court. On June 21, 1995, the following opinions were re­leased for the court:

Rosenberg, J. (Then, J., concurring) - see paragraphs 1 to 57, 83 to 163;

Boland, J., dissenting - see paragraphs 58 to 82.