Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human rights complaints – Discrimination – Race – Judicial review – Delay – Jurisdiction – Standard of review – Reasonableness simpliciter
Jeremiah v Ontario (Human Rights Commission),  O.J. No. 3013, Ontario Superior Court of Justice, July 11, 2008, L.K. Ferrier, R.W.M. Pitt and A.M. Molloy JJ.
The Applicant, an African-Canadian woman, had been charged in May 2002 with the criminal offence of uttering a threat to cause bodily harm. Nearly a year later, the Crown withdrew the charge, advising the Court that although the Crown believed that there was a reasonable prospect of conviction, they were satisfied that it would be in the public interest to withdraw the charge due to various factors including the Applicant’s age and lack of criminal record.
In August 2003, 16 months after her arrest, the Applicant filed a complaint against the Toronto Police Services Board and its chief with the Ontario Human Rights Commission, alleging discrimination in the provision of services because of her race and colour. There were two aspects to the complaint: the first alleged that she was criminally charged “on account of a pattern and practice of discriminatory policing by members of the Toronto Police Service”; the second related to a press conference called by the chief on August 5, 2003. The complaint alleged that he had called the conference in order to deflect media attention from her civil action, which had also been the subject of a press conference earlier that same day, and also to perpetuate falsehoods about the black community in Toronto.
By decision dated March 17, 2004, the Commission decided not to deal with the complaint, pursuant to s. 34(1)(d) of the Ontario Human Rights Code because the crux of the complaint related to matters that occurred when the criminal charges were laid on May 21, 2002 and the Commission was not satisfied that the delay in filing the complaint was incurred in good faith. The Applicant sought reconsideration of that decision. By decision dated April 26, 2006, the Commission upheld its earlier decision.
The Applicant commenced her application for judicial review of the Commission’s decisions on October 23, 2007, 18 months after the Commission’s reconsideration decision.
The Court first considered the appropriate standard of review. Until recently, it was well established in the case law that the standard of review for decisions of the Commission under sections 34 and 37 of the code was that of patent unreasonableness. Following the Supreme Court of Canada’s decision in Dunsmuir v New Brunswick,  S.C.J. No. 9, the standard of review now applicable to almost all decisions of the Commission under sections 34 and 37 of the code is that of reasonableness.
The Court first addressed the police chief’s press conference. It concluded that the Applicant’s complaint about the press conference did not constitute subject matter within the jurisdiction of the Commission. The Commission has jurisdiction over complaints of discrimination in a variety of circumstances, but distracting the media from press coverage of a person’s lawsuit, even if that allegation is supported by the facts (which the Commission had not found to be the case), does not fall within any of the headings upon which the Commission’s jurisdiction to investigate a complaint is founded. The Commission’s conclusion that it was not a “discriminatory act” was not only reasonable, it was correct in law.
The Court then addressed the Commission’s findings with respect to delay. The Court concluded that there had been nothing preventing the Applicant from filing her complaint while the criminal charge was pending, and she did not prove that her delay was incurred in good faith. The Commission’s determination was one of a number of reasonable options and it was entitled to deference. Accordingly, the Court declined to interfere with the Commission’s decision on that point.
The Court concluded that even if there was any merit to the application for judicial review, it would exercise its discretion to deny the relief sought because of the inordinate delay in bringing the application and because there would be no useful purpose served by granting the relief sought.
To stay current with the new case law and emerging legal issues in this area, subscribe here.