Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Race – Charter of Rights and Freedoms – Equality rights – Judicial review – Bias – Compliance with legislation
Howard Johnson Inn v. Saskatchewan Human Rights Tribunal,  S.J. No. 599, 2011 SKCA 110, Saskatchewan Court of Appeal, September 27, 2011, R.G. Richards, R.K. Ottenbreit and M.J. Herauf JJ.A.
The Tribunal found that Howard Johnson and Pontes discriminated against Tataquason when he attended at their restaurant. Tataquason bought a coffee and sat down in the Howard Johnson restaurant with his wife, who was waiting for her shift at the restaurant to begin. Pontes came over to Tataquason and said “Can’t you see she is working. This isn’t the Friendship Centre.” The reference to the “Friendship Centre” was thought to be an inaccurate allusion to the Friendship Inn, a facility that provides meals for people in need. Pontes then escorted Tataquason out of the restaurant.
The Tribunal held that Tataquason had been denied services “customarily offered to the public” on the basis of ancestry or race, thereby violating section 12 of the Saskatchewan Human Rights Code (the “Code”). Once deprivation of services is established, s. 39(1) of the Code shifts the onus of proof to the accused to prove, on a balance of probabilities, that the deprivation was not discriminatory.
At the Tribunal hearing, Pontes did not appear. No evidence was called to rebut the presumption of discrimination; a breach of s. 12 of the Code was established and Howard Johnson and Pontes were ordered to pay $7,000 to the complainant.
Howard Johnson and Pontes appealed, unsuccessfully, to the Court of Queen’s Bench. Counsel for the appellants argued that the Tribunal decision should be quashed due to an apprehension of bias on the part of the Tribunal member (“Worme”), that s. 12 of the Code was unconstitutional due to vagueness and that the evidence had been misinterpreted and/or that credibility was improperly assessed.
At the Court of Appeal, counsel for Howard Johnson and Pontes withdrew after filing a factum that Pontes continued to rely on in an oral argument. Pontes attempted to convince the Court that his version of events should be accepted, even though he opted not to testify at the initial hearing. The Court of Appeal dismissed this attempt, writing “His opportunity to tell his story was at the proceeding before the Tribunal. He freely decided to boycott that hearing and is now paying the price for his decision. This Court cannot reopen the Tribunal proceedings to entertain a new version of what did and did not happen to Mr. Tataquason.” (para. 13)
The Court rejected the submission that Worme was biased, or reasonably perceived to be biased, in favour of Tataquason because Worme was also a First Nations person who had supported First Nations community initiatives. All judicial-type decision makers have “real life experience and knowledge”. (para. 14) Awareness of the context of a case is not evidence of a reasonable apprehension of bias. The related argument that Worme was biased against Pontes for being rude to him in a pre-hearing telephone conversation was also rejected.
The argument that s.12 of the Code was vaguely worded and therefore offended Charter sections 2(b) and 15 failed because it was not raised at all until the matter reached the Court of Appeal. It was not apparent how “vagueness” had implicated either s.2(b) or s. 15 of the Charter, and s.12 was not found to be constitutionally vague. The “term “services” is not so lacking in precision as not to give sufficient guidance for legal debate.” R. v. Nova Scotia Pharmaceutical Society,  2 S.C.R. 606 at p. 643.
Finally, in this straightforward hearing, the Tribunal had not made any reviewable error in appreciating or applying the evidence. Absent a problem in dealing with the facts amounting to an error of law, there is no right of appeal (even) to the Court of Queen’s Bench.
The appeal was dismissed.
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