The Appellant appealed from a decision of the Human Rights Tribunal, finding that he had violated provisions of the Human Rights Code when he terminated the employment of two Complainants. The Tribunal had ordered the Appellant to pay damages to the Complainants and also made three “public interest orders”. The Court varied the compensation awards and set aside the public interest orders, finding that they were unsupported by any reasons.

Administrative law – Human rights complaints – Discrimination – Gender – Decisions of administrative tribunals – Human Rights Tribunal – Judicial review – Similar fact evidence – admissibility – Failure to provide adequate reasons – Natural justice

Papa Joe’s Pizza v. Ontario (Human Rights Commission), [2007] O.J. No. 2499, Ontario Superior Court of Justice, June 26, 2007, D.R. Aston, J.D. Carnwath and S.E. Greer JJ.

The Human Right Tribunal found that The Appellant had violated provisions of the Human Rights Code when he terminated the employment of a young woman and her step-father. The Tribunal made compensation awards in favour of the two Complainants and also made three “public interest orders” requiring the Appellant to:

1. Implement at any present or future place of business a comprehensive workplace harassment and discrimination policy;

2. Provide a copy of the Commission’s policy entitled “Gender Harassment and Inappropriate Gender-related Comments and Conduct” to all future employees; and

3. Provide the Commission with the names and addresses of any female employees who leave positions of employment with him during an ensuing two-year period.

The Court first considered whether the Tribunal had erred in admitting similar fact evidence. The similar fact evidence involved “signature” comments made by the Appellant to young women whom he had hired to work closely with him at his pizzeria. The Court held that the similar fact evidence in this case went beyond mere propensity to commit a particular act or acts, or evidence of bad character. The Court concluded that the Tribunal member was cognisant of the correct legal test for the admission of similar fact evidence, had the discretion to admit it, and reasonably exercised that discretion.

The Court then considered whether the Tribunal’s reasons met the minimum standard required to support the findings that the Appellant had violated the human rights of the Complainants. The Court held that the reasons of the decision were sparse and, from the perspective of appellate review, left a lot to be desired. The issue was whether those reasons were so inadequate and insufficient that they constituted a denial of natural justice based on procedural fairness. Given the serious consequences for the Appellant, there needs to be clear and cogent evidence in order to condemn his conduct and to find that he violated the rights of the Complainants under the Code.

The outcome of the case depended almost entirely on credibility. There was no ambiguity in the reasons when it came to the critical finding of credibility. Though the Tribunal did not indicate why it disbelieved the Appellant, that alone is not grounds to overturn his decision. The Tribunal’s reasons met the minimum standard required to sustain the findings that the Appellant had violated the rights of both Complainants under the Code.

Finally, the Court found that the reasons failed to meet the minimum standard with respect to the compensation and public interest remedies that were ordered. The Court adjusted the awards made to both Complainants. The Court set aside the three public interest orders. The rationale for the remedies encompassed by the three parts of the order is self-evident, to a certain extent, but unsupported by any reasons. The orders may also have significant consequences for third parties that were not evidently taken into account. Finally, with respect to the third public interest order requiring the Appellant to advise the Commission of the names and addresses of female employees who leave his employ, the Court concluded that the order was overly invasive and unreasonable.

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