That was yesterday, and yesterday’s gone – the Vavilov decision does not invite us to return to an era where “patent unreasonableness” is given a meaning beyond “reasonableness”

Administrative law – Decisions reviewed – Human Rights Tribunal – Gender – Private clubs – Judicial review – Evidence – Compliance with legislation – Standard of review – Reasonableness

Intercounty Tennis Association v. Ontario (Human Rights Tribunal), [2020] O.J. No. 1473, 2020 ONSC 1632, Ontario Superior Court of Justice, April 7, 2020, H.E. Sachs, N.L. Backhouse and G. Mew JJ.

The Intercounty Tennis Association (the “ICTA”) is a non-profit organization whose members are tennis clubs, and which runs a number of tennis leagues for its members. One of its leagues, the Mixed League, allows both male and female tennis players to join on the basis of competitive tryouts. The Mixed League offered twice as many playing spots to men as it did to women.

The individual respondents were women who had either played in the Mixed League or unsuccessfully tried out for a spot. They alleged discrimination by the ICTA against them on the basis of gender, and sought an order that the ICTA be required to provide equal playing opportunities to men and women.

In December 2016, the ICTA sought a summary hearing. The Tribunal refused that request, but issued a Case Assessment Direction that defined the scope of the hearing on the merits.

On July 12, 2018, the Tribunal sustained the complaints and ordered the ICTA to change its tryout process. The ICTA sought reconsideration of that decision. That request was refused. The ICTA applied to set aside the Tribunal’s decisions on judicial review, alleging the Tribunal had erred by:

• finding the individual respondents all had standing to bring applications;
• concluding the applications were timely;
• relying on evidence that went beyond the scope of the hearing as defined in the Case Assessment Direction; and
• failing to apply jurisprudence in its undue hardship analysis.

The Tribunal had concluded the respondents had standing before it, and that two of the three applications were timely. The Tribunal further found the respondents had established prima facie discrimination on a protected ground. The ICTA’s position was that its status quo was justified because imposing a gender-equal model may result in attrition, causing the ICTA undue hardship. The Tribunal did not accept that argument, finding the evidence on that point was speculative at best. The applicant’s request for reconsideration was denied.

On judicial review, the Tribunal relied on Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”) in arguing that the standard of review to be applied to its decisions was patent unreasonableness, as Vavilov held the presumption of reasonableness review can be rebutted “where the legislature explicitly provides the standard of review.” The Tribunal referenced section 45.8 of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19 (the “Code”) as explicit provision of the standard of review, as it states:

[A] decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless that decision is patently unreasonable.

The Ontario Divisional Court had previously concluded, in applying the principles articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, that the “patent unreasonableness” standard outlined in section 45.8 of the Code was equivalent to reasonableness. That conclusion was upheld by the Ontario Court of Appeal (Phipps v. Toronto Police Services Board, 2010 ONSC 3884, aff’d 2012 ONCA 155). In the current application, the Tribunal argued that the Vavilov decision in effect overturned this analysis. The Court did not accept that argument, and commented on the impact of Vavilov on the standard of review analysis as follows:

[42] Nowhere in Vavilov does the Court identify the merger of the reasonableness and patent unreasonableness standards as being one of the features of Dunsmuir that it is seeking to revise. Furthermore, to reintroduce the distinction would be contrary to the Court’s stated purpose in Vavilov – to clarify and simplify the law of judicial review. Reintroducing what the Court has already called a “meaningless” distinction that caused confusion would run counter to this aim.

[43] Furthermore, in the section of Vavilov that expands on legislated standards of review, the Court ends its discussion with the following statement at para. 35:

We continue to be of the view that where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law.

[44] As set out above, returning to an era where “patent unreasonableness” is given a meaning beyond “reasonableness” does raise rule of law concerns – namely, the fact that an irrational decision is allowed to stand because its irrationality is not “clear” or “obvious” enough.

The Court concluded that the words “patent unreasonableness” in the Code are to be given the meaning ascribed to them in prior jurisprudence; that is, reasonableness.

With respect to the individual respondents’ standing, the Tribunal had found the individual respondents had standing to bring the applications on the basis of their “recent and ongoing experience” with the Mixed League, as well as on the basis of experienced discrimination short of a full denial of services. The Court found that decision to be reasonable.

With respect to timeliness, the ICTA had acknowledged one of the applications were timely. The Court notes at paragraph 54 that the remedy ordered could have been ordered on the basis of a single application, and so any error made with respect to the timeliness of other applications was inconsequential.

The Court found the Tribunal’s decision that the evidence considered did not exceed the scope of the hearing as set out in the Case Assessment Direction to be reasonable, and that the evidence in question related to issues raised in the original filed applications, thereby giving notice of those issues to the ICTA.

Finally, with respect to undue hardship, the Tribunal had applied the test for making out the bona fide occupational requirement defence in employment cases, modified by focusing on the requirement on the part of the ICTA to demonstrate on a balance of probabilities it is impossible for it to provide equal playing opportunities for women without incurring undue hardship. The Tribunal was not satisfied of that on the available evidence. It was found to be insufficient to draw that conclusion by accepting hypothesized attrition levels. The Court found that decision was grounded in the evidence and was reasonable.

The application was dismissed.

This case was digested by Mollie A. Clark, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Mollie A. Clark at mclark@harpergrey.com.

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