A Human Rights complainant (“Gismondi”) was unsuccessful in his appeal of a decision by the Human Rights Commission not to deal with his complaint because it was not brought in a timely manner. The court held that procedural fairness had been afforded to Gismondi in the review of the Commission’s decision as he was given ample notice of the review and an opportunity to be heard. The court further held that the Commission’s reasons, although extremely brief, were sufficient, given the “screening” or primarily administrative nature of the decision at issue.
Administrative law – Human rights complaints – Discrimination – Age – Limitations – Judicial review application – Breach of procedural fairness – Natural justice – Standard of review – Patent unreasonableness – Failure to provide adequate reasons
Gismondi v. Ontario (Human Rights Commission),  O.J. No. 419, Ontario Superior Court of Justice, February 14, 2003, Blair, E.M. Macdonald and MacDougall JJ.
Prior to December 31, 1999, Gismondi was employed by the City of North York. He was 47 years old and had been an employee of the Municipality for 20 years. During the creation of the newly amalgamated City of Toronto (which included the former City of North York) in 1997, Gismondi’s position was eliminated. Gismondi was unsuccessful in competitions for other posts. Gismondi protested to the City that he had been treated in a discriminatory manner because of his age. He advised them that he intended to file a complaint alleging age discrimination under the Ontario Human Rights Code (the “Code”). Shortly after receiving a letter of November 23, 1998 rejecting him for a position, he attended at the Commission to file a complaint. The practice of the Commission was to have complainants fill out an Intake Questionnaire, which is then reviewed by the Commission staff, who prepare the complaint for execution and service. Gismondi was sent a copy of the intake questionnaire following his first attendance at the Commission on December 9, 1998. At that time, he was advised by the staff that there was a six-month limitation period for the filing of the complaint. Gismondi did not complete and file the intake questionnaire until June 17, 1999. He indicated that he did not want to disrupt negotiations with the City by filing a complaint. The City acknowledged that in May 1999, in order to accommodate Gismondi’s new counsel, the City agreed not to make an issue of timing subject to the caveat that Gismondi was not entitled to hold off his Human Rights complaint forever. Nothing further was heard from Gismondi or his counsel during the next three months. The complaint was ultimately served on the City on August 25, 1999. The City submitted to the Commission that the complaint should be dismissed as untimely since more than six months had elapsed between the filing of the complaint and the facts upon which the complaint was based. The Commission dismissed the complaint pursuant to s. 34 of the Code. Gismondi appealed to the Commission to reconsider its decision pursuant to s. 37 of the Code. The Commission conducted a reconsideration but declined to change its determination.
Gismondi sought a judicial review of the Commission’s decisions. The appeal was based on two avenues of attack: (1) that the Commission had acted in a fashion contrary to the fairness principles of natural justice; and (2) the Commission’s reasons were insufficient because they failed to adequately demonstrate the basis upon which the Commission had reached its decision.
The court held that where a tribunal’s decision is attacked on the basis of a denial of natural justice, it is not necessary for the court to engage in an assessment of the standard of review. The question to be determined is whether the rules of procedural justice have been adhered to: London (City) v. Ayerswood Development Corp,  O.J. No. 4859 (C.A.).
The court found that the standard of review on the merits was patent unreasonableness. In coming to this decision, the court noted that there was no general privative clause in the Commission’s regulatory legislation. As well, there is no right of appeal from a decision of the Commission under ss. 34, 36 or 37 (the “Screening Process”) unlike from a decision of a Board of Inquiry, under s. 42 of the Code. The court found that the Commission is engaged in a screening function under s. 34 and this function is more administrative than quasi-judicial. In applying the “pragmatic and functional approach” (Pushpanathan v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 982), the court had no hesitation in concluding that the Commission’s decisions were entitled to deference found at the “patent unreasonableness” end of the spectrum.
The court did not accept Gismondi’s argument that procedural fairness had not been maintained by the Commission. The court reviewed the correspondence between the parties and was of the view that Gismondi was given ample opportunity to make submissions and to respond to the s. 34 issue.
The court then reviewed the sufficiency of the reasons. Gismondi submitted that where a tribunal is required to give reasons for its decision, those reasons must be responsive to the issues raised and must set out the analysis undertaken in connection with those issues. He further submitted that a mere statement of conclusion, or a bare recital of preconditions to the exercise of the discretionary power is not sufficient, citing Payne v. Ontario (Human Rights Commission) (2000), 192 D.L.R. (4th) 315 (Ont.C.A.). The court rejected these arguments and noted that the administrative “screening” nature of the decisions of the Commission under ss. 34 and 37 meant that it was inappropriate to impose upon the Commission an obligation to generate lengthy or elaborate reasons. In this case, the Commission’s decisions were brief and merely set out that the Commission decided not to deal with the complaint because the complaint was not filed until nine months after the events at issue and that the Commission was not satisfied that the delay was incurred in good faith. The court stated that it would have been preferable to have somewhat more detailed reasons but declined to set aside the Commission’s decision.
The court held that there was ample evidence on the record before the Commission to provide a rational basis for the decision reached and that, therefore, the decisions could not be said to be patently unreasonable. Gismondi had admitted during the proceedings that the incidents giving rise to the discrimination took place on November 23, 1998, more than six months prior to Gismondi attending at the Commission to file the Intake Questionnaire. There was also evidence that Gismondi had ample notice of the six-month limitation period. The court held that the decision not to file the complaint while negotiations were pending with the City did not show good faith in respect of the process from the Commission’s perspective. The court stated that the Commission has control over its screening process and was not bound by an agreement between Gismondi and the party who was the subject of the complaint not to enforce the timeliness provisions, even if such an agreement existed. In the result, Gismondi’s application for judicial review was dismissed.
To stay current with the new case law and emerging legal issues in this area, subscribe here.