A teacher with the Scarborough Board of Education (“Layzell”) unsuccessfully applied for judicial review of decisions of the Ontario Human Rights Commission (the “Commission”) regarding complaints she had filed alleging discrimination and reprisal based on her sex and disability as an individual afflicted by multiple sclerosis

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Teachers – Human rights complaints – Discrimination – Duty to accommodate – Judicial review application – Standard of review – Patent unreasonableness – Procedural requirements and fairness

Layzell v. Ontario (Human Rights Commission), [2003] O.J. No. 5448, Ontario Superior Court of Justice – Divisional Court, January 6, 2004, Lane, Then and Epstein JJ.

In 1986, Layzell was diagnosed with multiple sclerosis. She filed a complaint with the Commission in 1990 alleging that she had been inappropriately sexually touched by the head of her department, a Mr. Bowers, and that her principal had failed to respond to the complaint and that both the principal and the school board had retaliated against her by threatening to move her from guidance counselling to classroom teaching. She was not moved to classroom teaching for either of those years. In 1996, Layzell filed a complaint that the Teachers’ Federation had failed to take her complaint seriously, and had failed to help her obtain appropriate accommodation with respect to her disability. Layzell filed a third complaint in late October 1996 wherein she alleged that the school had retaliated against her by imposing a transfer to another school.

The Commission interviewed witnesses and obtained document disclosure and received over 2,300 pages of submissions from Layzell and her husband. Pursuant to its mandate to endeavour to effect a settlement under Section 33 (1) of the Human Rights Code, the Commission explored settlement options with Layzell. She was not receptive to these efforts.

The Commission has the discretion to refer complaints to a Board of Inquiry where “it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry”.

The Commission determined that Layzell’s inquiry should not be referred to a Board of Inquiry, pursuant to its jurisdiction under s.36(2) of the Human Rights Code.

The Court held that decisions under s.36 of the Human Rights Code were subject to the patent unreasonableness standard of review, following decisions including Pritchard v. Ontario (Human Rights Commission) (1999), 45 O.R. (3d) 97.

The Court stressed that its function was not to re-weigh the evidence and come to its own conclusion, but that it should only ascertain whether evidence existed which was capable of supporting the Commission’s findings. The Court reviewed some of the evidence and found that there was evidence in support of the conclusions of the Commission.

The Court also considered the applicant’s submissions that she was denied her right to procedural fairness by not being interviewed by a Commission officer with respect to the allegations in her 1996 complaints. The Court did not find any merit to this submission.

The applicant also contended that an email sent by a Commission staff member which advised that the staff member had told counsel that she would be recommending a Board of Inquiry created a legitimate expectation of that result and hence tainted the procedure with unfairness. The Court held that this was a substantive issue, and that the doctrine of legitimate expectations did not extend to substantive rights as per Baker v. Canada, [1999] S.C.J. No. 39. Further the Court held that the promisor was not in a position to promise, and did not promise that there would in fact be a Board of Inquiry appointed.

No unfairness to Layzell was held to have occurred. The Court noted that although “the matters in issue relate to her livelihood” and so a “particularly high standard of justice” was therefore required, the applicant had received procedural fairness and the application for judicial review was dismissed.

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