Board of Education of Toronto (City) v. Quereshi, (2006) 215 O.A.C. 102 (DC)

• Judge: Gravely, Jarvis and Wilson, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 25, 2006
• Jurisdiction: Ontario
• Citations: (2006), 215 O.A.C. 102 (DC)

Toronto School Bd. v. Quereshi (2006), 215 O.A.C. 102 (DC)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. MY.048

Muhammed Saleem Quereshi (appellant) v. Ontario Human Rights Commission (respondent) and Board of Education for the City of Toronto and Central High School of Commerce (respondent) and Attorney General of Ontario (intervenor)

(File No. 522/04)

Indexed As: Board of Education of Toronto (City) v. Quereshi

Court of Ontario

Superior Court of Justice

Divisional Court

Gravely, Jarvis and Wilson, JJ.

April 25, 2006.

Summary:

A Board of Inquiry under the Human Rights Code ruled that the Toronto Board of Education discriminated against a prospective teacher because of his place of origin. The Board appealed.

The Ontario Divisional Court, Campbell, J., dissenting, in a decision reported (1991), 42 O.A.C. 258, allowed the appeal and held that the Board did not discriminate against the teacher on the basis of ethnic or place of origin. The Ontario Human Rights Commission appealed.

The Ontario Court of Appeal, in a judgment reported (1997), 96 O.A.C. 353, allowed the appeal, set aside the decision of the Divisional Court and dismissed the Board of Education's appeal. Leave to appeal to the Supreme Court of Canada was denied. The matter was remitted to the Human Rights Tribunal, which determined the teacher's monetary remedies. The teacher appealed respecting pension benefits, sick leave credits, mitigation of lost income and interest. The Board cross-appealed respecting lost income, general damages, legal fees and interest. The teacher also sought a declaration that s. 41(4) of the Human Rights Code violated ss. 7 and 15(1) of the Charter. Section 41(4) provided for costs payable by the Commission to a respondent in limited circumstances, but not to a complainant.

The Ontario Divisional Court affirmed the monetary remedies with the exception of the $10,000 portion of the general damage award attributed to costs. The Tribunal had no jurisdiction to award the complainant costs. The court dismissed the constitutional challenge.

Administrative Law - Topic 9052

Boards and tribunals - Jurisdiction of particular boards and tribunals - Provincial Human Rights Commission - [See first Civil Rights - Topic 7108 ].

Civil Rights - Topic 783

Liberty - Particular rights - Economic or property rights - [See Civil Rights - Topic 5677 ].

Civil Rights - Topic 5677

Equality and protection of the law - Particular cases - Costs - Section 41(4) of the Human Rights Code empowered a Tribunal to award costs, in limited circumstances, to the person against whom a discrimination complaint was made and dismissed - The Act did not give authority to award costs to a successful complainant - The Ontario Divisional Court held that s. 41(4) did not violate a successful complainant's s. 7 Charter right to life liberty and security of the person - Entitlement to costs was a purely economic interest not protected by s. 7 - The court also held that s. 41(4) did not violate equality rights under s. 15(1) - The court stated, inter alia, that "permitting one party to recover costs, while denying another party the opportunity, is a distinction that does not offend any enumerated or analogous grounds under s. 15" - See paragraphs 77 to 119.

Civil Rights - Topic 7063

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Remedies - Prejudgment interest - [See Interest - Topic 5009 ].

Civil Rights - Topic 7108

Federal, provincial or territorial legislation - Practice - Costs - As part of the remedy of general damages awarded to a teacher discriminated against by a school board, the Tribunal awarded $10,000 in recognition of the teacher's legal expenses - The only reference to costs in the Human Rights Code was s. 41(4), which provided for costs, in limited circumstances, to the person against whom a complaint was made and dismissed - No provision was made for costs to a successful complainant and the Tribunal had not acted under s. 17.1 of the Statutory Powers Procedure Act to enact rules respecting costs - The Ontario Divisional Court held that the Tribunal had no jurisdiction to award costs to the teacher - Section 41(4) occupied the field, leaving no implicit or residual authority to award costs under the general provision of s. 41(1)(b) - See paragraphs 65 to 76.

Civil Rights - Topic 7108

Federal, provincial or territorial legislation - Practice - Costs - [See Civil Rights - Topic 5677 ].

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Life, liberty and security of the person - [See Civil Rights - Topic 5677 ].

Interest - Topic 5009

Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Calculation of (incl. rate) - A teacher's discrimination complaint was allowed in October 1982 - Because of unsuccessful appeals, the Tribunal did not award the teacher a monetary remedy until 2003 - The Tribunal awarded prejudgment interest from October 1982 under the Courts of Justice Act, at the rate then applicable (13.75%) - The Ontario Divisional Court held that the Tribunal did not err in its interest decision - The Tribunal had jurisdiction to order interest under the Courts of Justice Act and the decision was reasonable and accorded with approved practice - The court rejected the submission that the applicable rate of interest was that provided for under the Rules of Civil Procedure for personal injuries - See paragraphs 46 to 58.

Cases Noticed:

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 18].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

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

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, refd to. [para. 19].

Smith v. Human Rights Commission (Ont.) et al. (2005), 195 O.A.C. 323 (Div. Ct.), refd to. [para. 20].

Wallersteiner v. Moir (No. 2), [1975] Q.B. 373, dist. [para. 47].

Impact Interiors Inc. v. Human Rights Commission (Ont.), [1998] O.J. No. 2908 (C.A.), refd to. [para. 55].

Bubb-Clarke v. Toronto Transit Commission, [2002] O.H.R.B.I.D. No. 6, refd to. [para. 62].

Naraine v. Ford Motor Co., [1997] O.H.R.B.I.D. No. 6, refd to. [para. 69].

Liquor Control Board (Ont.) and Parker v. Karumanchiri, Ng and Yan (1988), 25 O.A.C. 161 (Div. Ct.), refd to. [para. 70].

Curling v. Torimiro, [2000] O.H.R.B.I.D. No. 16, refd to. [para. 72].

McKenzie Forest Products Inc. v. Human Rights Commission (Ont.) et al. (2000), 131 O.A.C. 165; 48 O.R.(3d) 150 (C.A.), refd to. [para. 74].

Siemens et al. v. Manitoba (Attorney General) et al., [2003] 1 S.C.R. 6; 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1, refd to. [para. 94].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 95].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1, refd to. [para. 101].

Falkiner et al. v. Director of Income Maintenance (Ont.) et al. (2002), 159 O.A.C. 135; 59 O.R.(3d) 481 (C.A.), refd to. [para. 111].

Polewsky v. Home Hardware Stores Ltd. et al. (2003), 174 O.A.C. 358; 66 O.R.(3d) 600 (Div. Ct.), refd to. [para. 113].

R. v. D.B., [2005] O.T.C. 26 (Sup. Ct.), refd to. [para. 113].

Khokar v. Blackburn (1993), 146 A.R. 69 (Q.B.), refd to. [para. 114].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 117].

Statutes Noticed:

Human Rights Code, R.S.O. 1990, c. H-19, sect. 41(1)(b) [para. 23]; sect. 41(4) [para. 67]; sect. 42(1), sect. 42(3) [para. 16].

Counsel:

Charles Roach and Kikelola Roach, for the appellant;

Anthony Griffin, for the respondent;

J. Paul R. Howard, for the respondent;

Shannon Chace-Hall, for the intervenor.

This appeal and cross-appeal were heard on March 30-31, 2006, at Toronto, Ontario, before Gravely, Jarvis and Wilson, JJ., of the Ontario Divisional Court.

The judgment of the Court was delivered by Wilson, J., and released on April 25, 2006.