Administrative law – Human rights complaints – Discrimination – Disability – Decisions of administrative tribunals – Human Rights Tribunal – Jurisdiction – Right to award costs – Judicial review – Bias – Test – Compliance with legislation – Standard of review – Correctness
Sahota v. Scott,  S.J. No. 836, Saskatchewan Court of Queen’s Bench, December 22, 2008, N.G. Gabrielson J.
The Respondent was a taxi operator who had been the subject of a complaint to the Saskatchewan Human Rights Commission, in which a disabled man alleged that the Appellant had refused to provide taxi service to him because he was in a wheelchair. The Tribunal ultimately found that a case of discrimination within the meaning of the Human Rights Code had been established and ordered the Appellant to pay damages and costs.
The Appellant appealed the decision on the basis that the Tribunal member should have recused himself as a result of bias, the Tribunal did not have jurisdiction to hear and determine the complaint, and the Tribunal did not have jurisdiction to award costs. The appropriate standard of review in respect of all three issues was that of correctness.
The Appellant’s allegation of bias was based on a pre-hearing telephone conference amongst the Appellant, the Tribunal (composed of a single adjudicator), counsel for the Commission and counsel for the complainant during which the Tribunal member said: “I will not tolerate your further delays of these matters.” The Appellant understood the comment to be directed to him personally. The court held that the test to be used was an objective one – whether an informed person would consider there to have been a reasonable apprehension of bias on the part of the Tribunal. The court was satisfied that an informed person would not find that there was a reasonable apprehension or a real likelihood of bias. While the Appellant may have been concerned with the Tribunal’s remarks, it is not a subjective test which is to be applied, but rather an objective test. Similarly, the test to be applied is not that of a very sensitive person, or to use the words of Justice Grandpre in Committee for Justice and Liberty v. National Energy Board, someone who has a “very sensitive or scrupulous conscience”. In the circumstances in which the Tribunal’s statement was made – that the incident in question had arisen over two and one-half years earlier and that the request by counsel on behalf of the Appellant for further disclosure had been made only on the eve of the conference call to set hearing dates – a reasonable person would not be surprised or upset if the Tribunal raised concerns about further delays in setting such dates. Accordingly, applying the correctness standard of review, the court was satisfied that the Tribunal’s decision not to recuse himself was appropriate and that the appellant had not met the onus of establishing that a reasonable apprehension of bias existed.
On the issue of jurisdiction to hear the complaint, the Appellant argued that the Saskatchewan Human Rights Code did not apply to activities and events occurring at the Regina Airport because operations at the airport were related to aeronautics which fall under Federal Legislative competence. The court found that the decision of the Tribunal to accept jurisdiction was correct. Even though the taxi company was subject to the terms of a contract with the Regina Airport Authority, the operation of taxis to and from the airport was not an integral part of the operation of the airport. The evidence established that the Appellant and other operators of taxis provided service throughout the city of Regina. They were not restricted to providing taxi services solely at the airport. It would seem incongruous that the Appellant and/or other taxi operators would be subject to the Canadian Human Rights Act in respect to passengers being picked up at the airport for transportation throughout Regina and yet be subject to the Saskatchewan Code once they left the airport or, conversely, subject to the Code when they picked up passengers at any point throughout the city of Regina for transportation to the airport.
Finally, the court held that section 21 of the Saskatchewan Human Rights Code Regulations gives the Tribunal discretion to order costs in favour of any party to the proceeding which would include the Commission. In the circumstances of this case, the Tribunal exercised his discretion to order that the complainant pay costs. It was significant that the Tribunal also gave reasons why he exercised such discretion, including delay, disorganization or presentation of exhibits, lack of research in respect of issues of jurisdiction, all unnecessarily lengthening the proceeding in the opinion of the Tribunal.
In the result, the appeal was dismissed.
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