Make sure there is a connecting theme between events, before trying to argue the last in the series of events extends a filing deadline, or you might be disappointed

Administrative law – Decisions reviewed – Human Rights tribunal – Discrimination – Judicial review – Extension of time – Delay – Standard of review – Reasonableness

Chen v. Western University, [2022] O.J. No. 5315, 2022 ONSC 6698, Ontario Superior Court of Justice, December 2, 2022, K.E. Swinton, T.R. Lederer and S. Nishikawa JJ.

The applicant, a tenured member of the faculty of the business school associated with the respondent university, sought judicial review of a decision by the Human Rights Tribunal of Ontario (“HRTO”) to summarily dismiss his application against the respondent university, in part, for unreasonable delay and for the other part, for having no reasonable prospect of success. The applicant also sought judicial review of the HRTO’s decision to deny his request to reconsider its decision.

In September 2016, the applicant filed an application with the HRTO alleging that he had been discriminated against with respect to employment because of race and ethnic origin. The basis for his application related to events that primarily occurred between spring of 2014 and summer of 2015, during which he alleged the Dean treated him discriminatorily, culminating in the respondent university launching of an investigation into the Dean’s complaint against the applicant for alleged workplace harassment of the Dean, in June 2015.

In January 2017, the respondent university requested the HRTO to dismiss the Application on the basis that it was outside the one-year time limit for such complaint pursuant to section 34(1) of the Human Rights Code (R.S.O. 1990, c. H19.), or in the alternative that it be dismissed as having no reasonable prospect of success. The applicant argued that his matter was not out of time, as his allegations relate to a series of incidents that carried through to November 2015 (when he received the investigation report into the Dean’s alleged workplace harassment complaint against the applicant, which subjected him to several disciplinary penalties).

In its decision, the HRTO found that the series of incidents on which the allegations of discrimination by the Dean were based ended on June 8, 2015, when the Dean commenced the internal workplace harassment complaint against the applicant (which the HRTO accepted could be construed as the Dean continuing his alleged bullying and intimidation of the applicant). As such, the application commenced in September 2016 was more than one year later and out of time with respect to these allegations. The HRTO further found the applicant’s complaints related to the independent investigation undertaken by a law firm into the Dean’s complaint against him were of a different nature and, therefore, could not be included in the “series of incidents” to extend the timeline for filing an application related to the Dean’s alleged discriminatory conduct. Regarding the applicant’s allegations related to the independent investigation, the HRTO found that these allegations were in relation to the conduct of a third party (the law firm), not named as a respondent in the application, and there was no allegation that would support the presence of bias in the investigation nor was there an allegation that would support discrimination in the imposition of discipline. On this basis, the HRTO found that the allegations had no reasonable prospect of success.

The applicant requested that the HRTO reconsider its decision. The HRTO determined his request was an attempt to appeal the decision and denied his request.

The judicial review judge followed the Court of Appeal’s decision in Ontario (Health) v. Association of Ontario Midwives (2022 ONCA 458) and applied the standard of review of reasonableness despite the privative clause at s 45.8 of the Human Rights Code which suggests a standard of “patent” unreasonableness.

The judicial review judge found that it was reasonable for the HRTC to characterize the law firm’s investigation of the Dean’s complaints as separate from the series of event’s related to the applicant’s allegations of discrimination against the Dean (ending when the Dean filed his complaint in June 2015). The judicial review judge found there was no common theme between this series of events to make the necessary nexus or connection between them: one deals with the Dean’s alleged discrimination of the applicant; the other, the conduct of the investigation undertaken by the law firm. As such, it was reasonable for the HRTC to find that the applicant was out of time to bring his application related to his allegations against the Dean.

The judicial review judge further found that the HRTO was reasonable in finding that there was no reasonable prospect of success for the application related to the law firm’s investigation, as the applicant pointed to no facts to support his assertions of the investigation’s bias. While the HRTO is required to accept facts as proven on a summary hearing, the HRTO is not required to accept the applicant’s assumptions as to why those facts occurred. There must be a basis beyond mere speculation and accusations to ground a breach of the Human Rights Code.

Finally, the judicial review judge found there was no basis to set aside the reconsideration decision. The judicial review judge agreed with the HRTO that the applicant was attempting to have the HRTO override its own conclusions, an inappropriate use for a reconsideration under the legislation.

As a result, the judicial review judge dismissed the application for judicial review.

This case was digested by Renee Gagnon, 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 Renee Gagnon at rgagnon@harpergrey.com.

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