Administrative law – Human Rights complaints – Discrimination – Disability – Decisions of administrative tribunals – Human Rights Tribunal – Regulatory powers of tribunals – Judicial review – Standard of review – Patent unreasonableness
Malkowski v. Ontario (Human Rights Commission),  O.J. No. 5140, Ontario Superior Court of Justice, December 11, 2006, G.D. Lane, J.D. Ground and C.D. Aitken JJ.
The Applicant was a deaf person, unable to comprehend spoken word movies in theatres without the assistance of rear window captioning. A rear window caption board (“RWC”) can be installed at the rear of the theatre such that a portable reflector, obtained on request from the box office and installed on the arm rest, can be used to read the captions. Section 188.8.131.52 of Ontario’s Building Code requires that certain theatres be equipped with assistive listening devices. However, the Building Code does not require any theatre to be equipped with RWC, although nothing in the Building Code prevents it. Very few theatres have installed RWC. The Applicant filed a complaint with the Human Rights Commission alleging that the Ministry’s failure to include a requirement in the Building Code that theatres be equipped with RWC amounts to discrimination in the provision of a service on the ground of disability, contrary to ss. 1 and 9 of the Human Rights Code.
The Commission, pursuant to s. 36(2) of the Code decided not to refer the complaint to the Tribunal. It cited the lack of evidence to indicate that the complainant was subjected to discrimination in services because of disability, and that the evidence did not indicate that the complainant was denied the provision of a service within the meaning of the Human Rights Code. The Commission’s decision was upheld on reconsideration pursuant to s. 37 of the Code.
The Applicant applied for judicial review seeking an order quashing the two decisions at issue and an order in the nature of mandamus requiring the Commission to refer the complaint to the Tribunal. The standard of review with respect to the Commission’s discretionary decisions under ss. 34, 36 and 37 of the Code, is patent unreasonableness. The Commission is not under a public duty to proceed with every complaint; it has a discretion that it may exercise depending upon the circumstances.
The Court upheld that the Commission’s decision met the reasonableness standard. The Commission was engaged in a gate-keeping function, with both administrative and judicial content. There were no facts about RWC requiring an investigation by the Tribunal, since the facts relevant to the Applicant’s proposed change in the Building Code were all known. There was no incident in which the complainant was denied services and therefore, no facts to investigate.
The Commission had already determined that the amendments ought to be made and had made representations to those managing the Building Code to that effect. The actual amendment sought by the Applicant is not within the power of the Tribunal to grant, although it might make a declaration with persuasive effect, which it had already done.
The decision not to refer the complaint to the Tribunal was imminently reasonable. In the result, the application for judicial review was dismissed.
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