Losenno’s appeal from the dismissal of his application for judicial review of a Human Rights Commission decision not to refer Losenno’s complaint about his former employer to a Board of Inquiry was dismissed where the court found the Commission’s decision was not patently unreasonable

Administrative law – Human rights complaints – Discrimination – Disability – Decisions of administrative tribunals – Human Rights Commission – Jurisdiction – Settlement offers – Effect of – Refusal to refer to Board of Inquiry – Judicial review – Compliance with legislation – Standard of review – Patent unreasonableness

Losenno v. Ontario (Human Rights Commission), [2005] O.J. No. 4315, Ontario Court of Appeal, October 11, 2005, K.M. Weiler, M. Rosenberg and S.E. Lang J.J.A.

Losenno was injured in a non-work related accident and became unable to perform his regular duties with his employer, Metroland. Metroland tried to accommodate Losenno, but he was unsatisfied about the extent of the accommodation. Losenno filed a complaint with the Commission alleging discrimination on the basis of disability. Metroland offered to settle the matter. The Commission refused to refer the matter to a Board of Inquiry. The Commission reviewed the offer from Metroland and found that it was reasonable and took this offer into account in dismissing Losenno’s complaint. Losenno applied for judicial review of the Commission’s decision, which was dismissed by the Divisional Court. Losenno then appealed to the Court of Appeal.

The Ontario Court of Appeal agreed with the Divisional Court that the appropriate standard of review was patent unreasonableness. The Commission was acting within its core jurisdiction in considering the adequacy of the offer to settle and in exercising its discretion as to whether or not to refer the matter to a Board of Inquiry under s. 36 of the Human Rights Code, R.S.O. 1990, c. H-19 (the “Code”).

The court characterized the primary issue as whether the Commission was entitled to refuse to refer a complaint to a Board of Inquiry because of the reasonableness of an offer to settle. Section 36(1) of the Code sets out two prerequisites for referring a complaint to a Board of Inquiry and is framed in broad discretionary terms. First, the referral procedure must be “appropriate”. Second, the evidence must warrant an inquiry. The court held that given the discretionary nature of the s. 36 decision and the inclusion of the term “appropriate”, the decision of whether or not to refer the matter to a Board of Inquiry could include consideration of other factors related to the complaint that may suggest to the Commission that the Board of Inquiry procedure is not appropriate, including consideration of a settlement offer.

The court found that the decision of the Commission was not patently unreasonable. The Commission had evaluated the employer’s offer and found that it was equivalent to what Losenno could reasonably expect to receive should the case proceed to a Board of Inquiry. In the result, the appeal was dismissed.

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