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During the 2003-2004 fiscal year, the Legal Services Branch was involved in the following resolutions:  7 Human Rights Tribunal of Ontario decisions, 26 settlements, 5 judicial review decisions, 3 decisions from the Superior Court of Justice, 5 appeal court decisions, and 2 decisions from the Supreme Court of Canada.

At the end of the 2003-2004 fiscal year, the ongoing litigation in the Legal Services Branch comprised of:  292 complaints before the Human Rights Tribunal of Ontario (200 of these cases are being heard together), 12 judicial review applications before the Divisional Court, 2 cases before the Superior Court of Justice, 5 appeals before various Ontario Courts (including an intervention in the Court of Appeal), and 5 cases at the Supreme Court of Canada.

The following are highlights of some of the significant decisions, settlements, and cases over the past year.

Case Summary Highlights

1. Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (S.C.C.)

The Supreme Court of Canada ruled that a grievance arbitrator has the power and responsibility to enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement. The Court stated that human rights and employment standards legislation set a standard below which an employer and union cannot contract.  The Court therefore held that the Board of Arbitration was correct to conclude that the substantive rights and obligations of the Human Rights Code are incorporated into each collective agreement over which an arbitrator has jurisdiction.  Accordingly, the Supreme Court found no reason to interfere with the Board’s finding that the subject matter of the grievance was arbitrable.

2. Pritchard v. Ontario Human Rights Commission (S.C.C.)

The Court upheld the Commission’s claim that a legal opinion provided to the Commissioners is subject to solicitor-client privilege and need not be disclosed to the parties to the complaint.  Solicitor-client privilege applies with equal force in the context of advice given to an administrative board by in-house counsel as it does to advice given in the realm of private law. 

The "common interest" or "joint interest" exception to solicitor-client privilege does not apply to the Commission because it does not share an interest with the parties before it. The Commission is a disinterested gatekeeper for human rights complaints and, by definition, does not have a stake in the outcome of any claim.  The Commission neither has a trust relationship with, nor owes a fiduciary duty to, the parties appearing before it.  Procedural fairness also does not require the disclosure of a privileged legal opinion.

Section 10 of the Judicial Review Procedure Act does not clearly or unequivocally express an intention to abrogate solicitor-client privilege, nor does it stipulate that the "record" includes legal opinions. As such, "record of the proceedings" should not be read to include privileged communications from Commission counsel to the Commission.

3. Canada Mortgage and Housing Corp. v. Iness (Ont. Court of Appeal)

The Court of Appeal held that the eligibility criteria attached to a federal government housing grant (here, between the Canada Mortgage and Housing Corp. (CMHC) and Caroline Co-Operative Homes Inc.) was not subject to provincial human rights legislation.

The complainant alleged that one of the criteria under which she received a housing subsidy discriminated against her as a person in receipt of social assistance.  After referral of the complaint to the Human Rights Tribunal of Ontario, the complainant successfully added CMHC as a respondent in the proceedings on the basis that CMHC’s funding policy and Operating Agreement were subject to provincial regulatory authority under the Code.  On judicial review, however, the Divisional Court quashed the Tribunal’s order.  The Court of Appeal, in dismissing the appeal, concluded that CMHC’s authority to advance funds to the Co-op was a valid exercise of the federal government’s “spending power” and was not an attempt to regulate a matter within provincial jurisdiction.  The Court also agreed with the Divisional Court that, by virtue of the doctrine of interjurisdictional immunity, the Code must be read down so as not to limit the authority given to CMHC by valid federal legislation since the terms on which CMHC disburses federal funds are part of its core function. 

The complainant is seeking leave to appeal to the Supreme Court of Canada. 

4. Her Majesty the Queen in Right of Ontario v. Michael McKinnon and Ontario Human Rights Commission (Ont. Div. Ct.)

The Ministry of Correctional Services appealed from a decision of the Board of Inquiry (now Human Rights Tribunal of Ontario), dated November 29, 2002, which held that the Ministry failed to comply fully with a 1998 order of the same Board relating to discrimination in the workplace.  The Board made further remedial orders in its decision which were the subject of this appeal.  The Court held that there was sufficient evidence before the Board to support the finding that the Ministry did not comply with its previous order.  The Court then had to consider whether having found non-compliance, the Board’s role was at an end, requiring the complainant to return to the Commission to begin anew with a fresh complaint.  The Court held that this would be contrary to the intent of the Code, the purpose of which is to eradicate discrimination.  The Court held that it was open to the Board, as part of its ongoing obligation to oversee implementation, to recast its original orders to meet what it found to be a continuing problem.  Leave has been granted to the Ministry to bring a further appeal of the Board’s decision to the Ontario Court of Appeal.

5. Gismondi v. Ontario Human Rights Commission (Ont. Div. Ct.)

This was a judicial review of the Commission’s decision to exercise its discretion under s. 34 and s. 37 of the Code to not deal with Mr. Gismondi’s human rights complaint.  The Commission’s reasons for not dealing with the complaint were that the complaint was filed too late and that this delay was not incurred in good faith.  The Court considered the standard of review to be applied on a judicial review of the exercise of the Commission’s discretion under sections 34 and 37 of the Code.  Given the Commission’s acknowledged expertise in dealing with human rights complaints, the purpose of the legislation and the nature of the particular problem being addressed by the Court on a review of a section 34 or 37 decision, the Court concluded that the Commission’s decisions in such matters are entitled to the degree of deference found at the “patent unreasonableness” end of the spectrum of review.  The Court went on to find that the decisions of the Commission were not patently unreasonable in this case.  In addition, the Court held that the Commission met all the requirements of procedural fairness.

6. Baylis-Flannery v. Walter DeWilde c.o.b. as Tri Community Physiotherapy (No. 2) (H.R.T.O.)

The Human Rights Tribunal of Ontario ruled that the respondent discriminated against the complainant because of her race and sex, sexually and racially harassed her, made sexual advances, and ultimately terminated her employment because she objected to his conduct.  This decision represents the first time the Tribunal explicitly recognized and applied the concept of intersectionality with respect to both liability and remedy.    The Tribunal found that the intersectionality of the discrimination based on sex and race exacerbated the complainant’s mental anguish.  The Tribunal found that the respondent sexually and racially harassed the complainant because she was a young black woman over whom he could assert economic power and control.  He also repeatedly diminished her because of his racist assumptions about the sexual promiscuity of black women.  The Tribunal awarded the complainant $25,000 in general damages for sex discrimination, sexual solicitation and harassment, and reprisal, and $10,000 in general damages for racial discrimination and racial harassment.  The Tribunal also awarded $10,000 for mental anguish and $3,384 for lost wages.  In addition, the Tribunal also ordered the respondent to fulfill a series of public interest remedies.

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