A former employee of Metroland who suffered a non-work related injury, was accommodated in a more sedentary position but later was unable to reach the second floor to comfortably continue work (“Losenno”), was unsuccessful in his application for judicial review of two decisions of the Ontario Human Rights Commission (“Commission”) wherein they held that they would not refer his complaint of discrimination in employment to a Board of Inquiry for a full hearing

Losenno v. Ontario (Human Rights Commission), [2004] O.J. No. 2667, Ontario Superior Court of Justice – Divisional Court, June 21, 2004, O’Driscoll, Lane and Jennings JJ.

Losenno began working for Metroland as a press helper. He later became a rollman’s helper, which involved physical labour. He injured his knee off the job and Metroland accommodated him with the position of intermediate accounting clerk. Losenno’s injuries ultimately progressed to the point where he could not climb the stairs to the second floor where the offices were located. Losenno left his employment and filed a complaint with the Commission alleging discrimination on the basis of handicap.

Settlement of the complaint was canvassed verbally and in written form. Metroland formulated a settlement offer and disclosed the particulars to the Commission. Two staff analyses were conducted, the second of which recommended that the complaint not be referred to a Board of Inquiry because of the adequacy of Metroland’s settlement offer.

The Commission decided, pursuant to s.36 of the Code, that it would not refer the subject matter of the complaint to a Board of Inquiry because the remedy offered was one that Losenno could reasonably expect to receive if the case proceeded to a Board of Inquiry and because the offer was reasonable with regard to general, specific and public interest remedies. The decision was upheld on internal review.

The Court adopted a pragmatic and functional approach in reviewing the decision of the Commission. A standard of review of correctness was held to apply to questions of law pertaining to jurisdiction, while where interpretation of a statutory power requires an understanding and analysis of the issues within the expertise of the tribunal, deference should be granted. The Court referred to the decision in Alberta Union of Provincial Employees v. Lethbridge Community College, [2004] S.C.J. No. 24 in stating:

It is arguable that in determining what material it could review in exercising it’s mandate under s.36 the Commission required a special understanding of human rights issues and upon review by us, pursuant to Lethbridge, a standard of reasonableness applied. However, for the reasons that follow, in our opinion that question need not be answered, because we find that the Commission was correct in it’s decision. (para. 21)

Section 33 of the Code directs the Commission to investigate a complaint and endeavour to effect a settlement. The Court reviewed jurisprudence in support of the proposition that, in pursuing such resolution, settlement proposals of the parties are relevant considerations. The Court held:

I conclude that the Commission was correct in considering the resolution proposed by Metroland in determining whether the matter should go to a Tribunal. In making that determination, the Commission assessed the adequacy of Metroland’s offer in the face of the likelihood of the Applicant’s demands being granted by a Tribunal. In making that assessment, the Commission was acting squarely within its core function and its area of expertise. There was ample evidence to warrant the conclusion reached by the Commission that, in view of the settlement position put forward by Metroland, a referral to a Board of Inquiry was not the appropriate procedure. I cannot say that the impugned conclusion was unreasonable, let alone patently unreasonable. (para. 35)

The Court dismissed Losenno’s application.

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