Decisions of human rights tribunals involving pure questions of law should be reviewed on a standard of correctness. Where questions of law can be identified and separated from the questions of mixed law and fact, the Court should separate the issues and review questions of law on a standard of correctness, not a standard of reasonableness.

26. August 2008 0

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human Rights complaints – Discrimination – Judicial review – Standard of review – Reasonableness simpliciter – Correctness

Ayangma v. Prince Edward Island Eastern School Board, [2008] P.E.I.J. No. 31, 2008 PESCAD 10, Prince Edward Island Supreme Court -Appeal Division, June 26, 2008, Mc.Quaid J.A., M.M. Murphy J.A., K.R. MacDonald J.A. (ad hoc)

The appellant filed a complaint with the Prince Edward Island Human Rights Commission alleging that the respondent, Eastern School Board, discriminated against him on the basis of race, age, ethnic/national origin and colour. The complaint was considered within the process provided by the applicable human rights legislation. This resulted in a number of judicial review applications. In the last of the reviews, the Appeal Division of the Supreme Court ordered the Human Rights Commission to appoint a Panel to adjudicate upon the complaint. The Panel found that the respondent had discriminated against the appellant and awarded compensation for lost income subject to a deduction for failure to mitigate plus compensation for hurt and humiliation.

The respondent filed an application to review the Panel’s decision. The appellant filed a cross-application for judicial review of the remedies ordered. The applications judge dismissed both. The appellant appealed from that decision and the respondent cross-appealed to the Appeal Division.

The first issue before the Appeal Division was whether the applications judge applied the correct standard of review of the Panel’s decision. The Appeal Division concluded that while the proper standard of review was reasonableness for questions of mixed law and fact, some of the issues considered and decided by the Panel were questions of law of general application which should have been reviewed on a standard of correctness.

The Panel’s decision that the appellant had established a prima facie case of discrimination and that the respondent failed to rebut the prima facie case, raised issues of mixed fact and law. The issues of law were so interwoven with the issues of fact that they could be reviewed on the standard of reasonableness applied by the applications judge. The applications judge did not make a palpable and overriding error in concluding that the respondent discriminated against the appellant.

The decision as to whether the appellant was entitled to compensation for loss of income as well as the determination of the appropriate quantum of such compensation raised questions of law of general application which were discrete from related questions of fact. The issues of law should have been reviewed by the applications judge on a standard of correctness.

Justification for a reduction in the amount of compensation for loss of income on the basis that the appellant would have obtained the same number of substitute teaching assignments in the material period as he had 10 years previous was purely speculative. The respondent failed to prove that the appellant did not take reasonable steps to avoid a loss of income. Accordingly, the applications judge erred in holding that the Panel’s decision on the issue of mitigation should stand and the appellant was entitled to a further $13,654 plus interest.

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