Law discussion paper 5 pages minim

CANADIAN HUMAN RIGHTS R E PORTER 72 C .H.R.R.

quired and how they would ensure that Esther Trozzi was able to carry on as a registered nurse given the disability that had been identified.

(74) Whether this is sufficient is not for me to decide. I agree with my colleagues when they say: " ... once reasons are given on the face of the HPARB decision, which clearly indicate that HPARB considered the issue and decided it, it is no longer up to the Human Rights Tribunal to pass judg- ment on the adequacy of HPARB's decision or its rea- sons ... " (see: Reasons of the Majority, at § 43). This wou ld be a matter for the Court on an application for judicial re- view.

(75] The Human Rights Tribunal is constrained by the pro- visions of s. 45.1 of the Code. Its hearing is a de nova pro- ceeding. It can only determine if the conditions appropri- ately deal with the substance of the appl ication. Were the conditions that were imposed appropriate in accommodat- ing Esther Trozzi so that she could give the care expected of a reg istered nurse? The sufficiency of the reasons given by HPARB, and issues with the proceeding it conducted, are not for the Human Rights Tribunal to decide. Those ques- tions belong in court.

(76] I end by returning to the observation made at the out- set of these reasons - that this case will contribute to our understanding of how and where complaints made under the Code will be considered. The word ing of s. 45.1 autho- rizes the Human Rights Tribunal to ensure that any accom- modation provided for by a decision of another tribunal is

appropriate, but not to deal with issues of the fairness, process or jurisdiction of the other tribunal. The expertise of the Human Rig hts Tribunal d oes not extend to such issues. The difficulty for parties or counsel will be to determine whether they should proceed to the Human Rig hts Tribunal under s. 45. 1 of the Code or to court for judicial review.

(77) Like my colleagues , I would quash the September 17, 20 10, decision of the Human Rights Tribunal and dismiss the complaints of Esther Trozzi pending before that Tribunal.

(78) I wi sh to express one further concern. In this case, the conditions to the registration of Esther Trozzi were removed by a decision of the Registration Committee of the Col lege of Nurses of Ontario, made on July 6, 2007. Esther Trozzi has been free to function as a Registered Nurse, without re- striction, since that time. It may be that intent is not neces- sary for a party to be guilty of discrimination . It may be that the pain of having been the victim of discrimination contin- ues. Nonetheless. in this case, there does not appear to be any bad faith or malfeasance. It was at the invitation of the College that Esther Trozzi delivered the further medical evi- dence that led to the conditions being withdrawn. It is diffi- cult to understand what was to be gained by pressing on with this complaint. If it is to chastise the College in a pub lic way, or to put others on notice, surely whatever lessons are to be learned from this have b een recog nized by now. If it is to provide Esther Trozzi with the comfort that comes with an apology or compensation , there must be times when c losure comes from ourselves? Society cannot compensate or pub- licly recogn ize every wrong, perceived or rea l.

C A N A D A N

U. H. R. R. HUMAN RIGHTS R EPO RTER

ONTARIO APPEALS AND JUDICIAL REVIEW

Indexed as: Audmax Inc. v. Ontario (Human Rights Tribunal) Cited: (2011), 72 C.H.R.R. D/36, 2011 ONSC 315

CHRR Doc. 11-3014

Audmax Inc. and Maxcine Telfer Applicants

v.

Human Rights Tribunal of Ontario and Seema Saadi Respondents

Date of Decision: January 18, 2011

Before: Ontario Divisional Court, Whalen, Molloy and Swinton JJ.

D/36

Paragraphs 1 - l 06

Reasons by: MolloyJ.

Appeal from: (sub nom. Saadi v. Audmax Inc.) (No. 2) (2009), 68 C.H.R.R. D/442, 2009 HRTO 1627

File No.: 28/10

Appearances by:

Ted Charney and Julian Roy, Counsel for the Applicants

Summary

Prabhu Rajan, Counsel for the Respondent Human Rights Tribunal of Ontario

Toby Young and Jo-Ann Seamon, Counsel for the Respondent Seema Saadi

APPEALS AND JUDICIAL REVIEW - error of law in de- termining credibi lity, in findings on the evidence and in interpreting rules of procedure - review of findings of fact - adequacy of reasons for decision - reasons for decision are unreasonable - difference between ap- peals and judicial review - definition of patently unrea- sonable and reasonableness standard - ADMINISTRA- TIVE TRIBUNALS - COURTS - standard of review of court over administrative tribunals - HUMAN RIGHTS TRI BUNALS - privative clause - INTERPRETATION OF STATUTES - definition of "patently unreasonable" - survey of the law

RELIGION AND CREED - RACE, COLOUR AND PLACE OF OR IGIN - employment terminated and discrimina- tory treatment on the basis of religion and place of ori- gin - DRESS AND GROOMING CODES - employee for- bidden from wearing hijab - EVIDENCE - new evidence on appeal - PROCEDURE - lack of proce- dural fairness as abuse of process - procedural fair- ness

Summary: The Ontario Superior Court of Justice, Divi- sional Court, overturned the decision of the Human Rights Tri- bunal of Ontario in the case of Seema Saadi and Audmax Inc. The Tribunal had ruled that Audmax Inc. and Maxcine Telfer discriminated against Seema Saadi because of her ancestry, ethnic origin, creed, and sex.

Ms. Saadi worked as an intake settlement worker for Audmax Inc. from April 2008 to June 2008. Ms. Saadi identifies herself as a Bengali-Canadian, Muslim woman. She is legally blind. The Tribunal found that Ms. Saadi was discriminated against by two policies instituted in the workplace: one regarding heating food in the microwave, and the other regarding workplace dress. The microwave policy asked staff to be sensitive to the odours of "certain" foods that can trigger allergies, such as al- lergies to seafood and peanuts. Ms. Saadi attempted to comply with this policy by not heating overly odourous foods. But the vagueness of the policy made it open to discriminatory enforce- ment based on ethnicity.

Also, Ms. Saadi was told that her manner of dressing was not appropriate. Ms. Saadi felt singled out as an identifiably Mus- lim woman who conforms to a manner of religiously -mandated dress. Ms. Telfer took exception to her short skirt and leggings and a particular kind of hijab, which Ms. Telfer referred to as a "cap". The Tribunal found that singling out Ms. Saadi for cor- rective action because of her chosen form of hijab, which was clearly worn for religious reasons, amounted to discrimination.

On June 3, 2008, Ms. Saadi was told that her employment was being terminated due to a lack of "organizational fit". The Tri- bunal had already found that Ms. Saadi was discriminated against during her employment. The respondents did not justify the termination of her employment by providing reasonable and probable non-discrim inatory explanations, and the Tribunal concluded that discrimination was a factor in her termination.

The Court considered the standard of review to be applied and found that while the Tribunal has a specialized expertise, the

Audmax Inc. v. Ontario (Human Rights Tribunal)

decisions of the Tribunal are required to be rationally sup- ported and to fall within a range of possible, acceptable out- comes that are defensible in fact and law. Otherwise, they will be "patently unreasonable".

The Court found many faults in the Tribunals decision. The ad- judicator breached procedural fairness by refusing to make arrangements for a key witness for Audmax to be heard. Mr. Barnett could not appear on the scheduled hearing day because he was required to travel to East Africa to deal with an emer- gency involving his daughter who resides there. Ms. Telfer ap- peared on behalf of Audmax without counsel. She tried to pre- sent Mr. Barnett s evidence through an unsworn written synopsis. The Court agreed that this evidence could not be ad- mitted, but it was incumbent on the adjudicator to consider the implications of Mr. Barnett s absence and to provide Ms. Telfer with some information about her options.

Regarding the microwave policy, the Court found that the adju- dicator made a bald conclusion that was unsupported by fac- tual findings. There was no reference to what discipline Ms. Saadi was subjected to, or how the policy or the discipline was connected to Ms. Saadi s ethnic origin or ancestry. The f act that ambiguous standards can lead to discriminatory enforcement does not mean that this occurred here, particularly in light of the finding that Ms . Saadi was not directly targeted fo r enforce- ment. The reasons do not disclose a rational basis for the con- clusion that there was discrimination.

Similarly, there were no factual findings to support the conclu- sion that Ms. Saadi s "religiously conforming attire at times conflicted with the dress code". There was only one occasion when the employer objected to Ms. Saadi s clothing. On that oc- casion, Ms. Telfer considered Ms. Saadis dress inappropriate because it was too tight and too short, in other words, the very opposite of modest and religiously conforming attire for Mus- lim women. Without any description of what Ms. Saadi was ac- tually wearing, it was impossible to determine if there was something about that clothing that was religiously required and not in conformity with the policy.

The adjudicator made an irrational decision by concluding that discrimination had been established any time an item of cloth- ing was questioned and that clothing complied with the require- ments of the complainants religion. It was possible for Ms. Saadi to wear a religiously acceptable form of dress, including a form of hijab, which was fully consistent with the dress code, as she did most of the time. Her religious rights were not af fected. The adjudicator ought to have considered whether the dress code conflicted with what the employee was required to wear as part of her religion.

The Court found that the dectsion as a whole was fata lly flawed and patently unreasonable. In these circumstances, the Court set aside the decision and remitted the case to the Tribunal for a new hearing before a different adjudicator. The Court awarded costs of $10,000 against Ms. Saadi.

CASES CITED

Audmax Inc. v. Ontario (Human Rights Tribunal) (No. 2) (2009), 68 C .H.R.R. D/ 442, 2009 HRTO 1627: 6

British Columbia (Public Service Employee Re lations Comm.) v. B.C.G.E.U., [1999) 3 S.C.R . 3, 35 C .H.R.R. D/ 257: 51, 56, 64, 78, 103

Browne v. Dunn (1893), 6 R. 67 (H.L. ): 71

D/37

Paragraphs I - 8 CANAD I AN HUMAN RIGHTS REPO RTER 72 C.H.R.R.

Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, 2009 sec 12: 26, 31

Canada (Dir. of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748: 19

Chauhan v. Norkam Seniors Housing Cooperative Assn. (2004), 51 C.H.R.R. D/126, 2004 BCHRT 262: 51

Cicciarella v. Cicciarella (2009), 72 R.F.L. (6th) 319, [2009] O .J. No. 2906 (QL) (Div.Ct.): 39

Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9: 18, 20, 30, 57, 101

Gray v. Ontario (Disability Support Program) (2002), 59 O.R. (3d) 364 (C.A.): 58

Igbinosun v. Law Society of Upper Canada (2009), 96 O .R (3d) 138, 2009 ONCA 484: 42

Imperial Oil Ltd. v. Entrap (2000), 50 O .R. (3d) 18, 37 C.H.R.R. D/48 1 (C.A.): 17

Kainz v. Potter(2006), 33 R.F.L. (6th) 62 (Ont. S.C.): 39 Kalin v. Ontario College of Teachers (2005), 75 O.R. (3d) 523

(Div.Ct.): 42 Keeprite Workers' Independent Union and Keeprite Products Ltd.

(Re) (1980), 29 O.R. (2d) 513 (C.A.): 15 Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003

sec 20: 19 Law Society of Upper Canada v. Neinstein (2010), 99 O.R. (3d) 1,

2010 ONCA 193: 68 London (City) v. Ayerswood Development Corp. (2002), 167

O.A.C. 120 (C.A.): 33 Mills v. Workplace Safety and Insurance Appeals Tribunal of On-

tario (2008), 168 AC.WS. (3d) 679, 2008 ONCA 436: 31 Razack v. Ontario (Human Rights Comm.) (2007), 231 O.A.C. 58,

CHRR Doc. 07-707 (Div.Ct.): 33 R. v. Hall, 2010 ONCA 421: 71 R. v. Owen, [2003] 1 S.C.R. 779, 2003 SCC 33: 27 R. v. Sheppard, (2002] 1 S.C.R. 869, 2002 SCC 26: 58 Shaw v. Phipps (2010), 71 C.H.R.R. D/168, 2010 ONSC 3884: 26,

31 Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC

63: 19 Toronto Dominion Bank v. Hylton, 2010 ONCA 752: 38

LEGISLATION CITED

British Columbia Administrative Tribunals Act, S.B.C . 2004, c . 45, s. 58(2)(a): 27

Ontario Human Rights Code, R.S.O. 1990, c. H.19, s. 45.8 : 25 Human Rights Code Amendment Act, 2006, S.O. 2006, c. 30: 24

AUTHORITI ES CITED

Mullan, David J., "Recent Developments in Standard of Review", in Canadian Bar Association (Ontario), Taking the Tribunal to Court: A Practical Guide for Administrative Law Practitioners (2000): 20

A. INTRODUCTION

(1] Seema Saadi was dismissed from her employment in June 2008, six weeks after she had been hired. She filed a complaint of discrimination against her employer Audmax Inc. and its owner/chief executive officer Maxcine Telfer. Ms. Saadi identifies herself as a Bengali-Canadian Muslim woman who is legally blind.

D/38

(2] Audmax receives public funding to administer pro- grams to assist diverse ethnic an d religious populations . Ms. Saadi was hired on a probationary basis as an intake worker for Audmax's Immigration Settlement Assistance Pro- gram, a federally funded project designed to assist new- comer women in finding work in Canada. Ms. Saad1 was dis- missed before her probationary period had concluded.

(3] Ms. Saadi alleged that during the course of her em- ployment she was discriminated against and harassed be- cause of he r race, colour, ancestry, place of orig in, ethnic origin, disability, creed and sex, and that this pattern of con- duct culminated in her dismissal, based on those same dis- criminatory grounds.

(4] These allegations were denied by the employer who maintained that there had been no discrimination against Ms. Saadi, that they had accommodated her religious attire requi rements throughout her employment, and that she ~ad been dismissed for cause, unrelated to any proh1b1ted ground of discrimination.

(5] The complaint proceeded to a hearing at the Human Rights Tribunal of Ontario ("HRTO" or "Tribunal") before Ad~ judicator Faisal Bhabsa for four days in July 2009. Ms. Saad1 was represented at the hearing by legal counsel from the Human Rights Legal Support Centre; the employer was un- represented. At the outset of the hearing, Ms. Saadi aban- doned her allegation that there had been any discrimination based on her disability.

(6] On October 7, 2009, the adjudicator released written reasons finding against Ms. Saadi on many of her allega- tions.1 However, he found that the enforcement of workplace policies on dress code and rules for using the staff mi- crowave were d iscriminatory against Ms. Saadi on the basis of her ancestry, ethnic orig in, creed and sex. He also found that the method of discipline taken against Ms. Saadi at a meeting dealing with the office dress code was discrimina- tory and that the employer failed to properly accommodate her religious attire. Finally, he determined that given this dis- crimination during employment, and in the face of unproved allegations supporting the employer's decision to terminate the employment, it must be concluded that some degree of discriminatory conduct contributed to the d ismissal itself. He awarded Ms. Saadi general damages of $15,000 and an additional $21,070 for lost wages.

(7] Audmax and Ms. Telfer seek judicial review of the ad ju- dicator's decision, citing issues of procedural unfairness, in- adequacy of reasons, and the unreasonableness of the de- cision itself.

(8) There are a number of deficiencies in the reasons and in the process employed by the adjud icator. In my opinion, when these are viewed cumulatively it is not possible to say that this was a fair hearing, nor that the finding s of discrimi- nation were reasonable . The specific issues of concern in- clude the following:

(a)

(b)

the manner in which the adjudicator dealt with the in- ability of a key witness for the employer to attend the hearing was a denial of procedural fairness;

the findings with respect to the microwave policy are

Paragraphs 9 - 16

flawed by legal errors and lack factual findings to sup- port the legal conclusions reached;

(c) the reasons with respect to the dress code policy are inadequate to explain how the policy was d iscrimina- tory against Ms. Saadi, either with respect to its con- tent or how it was applied, and fail to address applica- ble legal issues;

(d) the adjudicator unreasonably refused to permit Ms. Telfer to present a photographic image to explain her objection to Ms. Saad i's c lothing, whic h interfered with the employer's ability to present its case;

(e) the findings with respect to the hijab are unsupport- able and flawed by legal errors;

(f) the finding that it is d iscriminatory for a man to be pre- sent at a meeting to discuss the style of business d ress required of female emp loyees is unsupportable in fact or law;

(g) the conclusion that the termination was discriminatory was dependent upon the other findings of discrimina- tion and is not sustainable on its own;

(h) the conclusion that the termination was d iscriminatory was heavily dependent upon drawing an adverse in- ference with respect to the failure of Mr. Barnett to tes- tify for the employer, which was both unreasonable and legally incorrect and which compounded the pro- cedural unfairness in proceeding with the hearing in his absence; and

(i) there is an overall failure to refer to evidence to sup- port critical findings of fact, including findings of cred- ibility that are either conclusory or missing altogether, and the reasons are inadequate to support the con- clusions reached or to permit meaningful judicial re- view.

(9) I will deal first with a motion by the applicants to admit fresh evidence on this judicial review application . I will then deal with the standard of review for decisions of the HRTO. Finally, I will analyze the decision in respect of each of the areas of concern I have mentioned above and set out the basis for my conclusions.

8. MOTION TO ADMIT FR ESH EVIDENCE

(10] Counsel for the applicants/employer sought leave to admit fresh evidence on th is application on two issues: (1) how the adjudicator dealt with the inabi lity of the employer's witness to attend the hearing and the employer's request to file his evidence in writing; and (2) how the adjudicator dealt with the employer's attempt to submit into evidence a photo- graph of clothing alleged to be similar to what the com- plainant had been wearing on the c rucial day when she had been spoken to about the dress code. Leave to admit this evidence was granted.

(11] The employer 's new evidence included two exhibits,2

which were present before the adjudicator, but which were not filed as exhibits at the hearing. The purpose of this evi- d ence on the judicial review application was not to expand upon the evidence heard at the hearing, nor to challenge the basis for any findings of fact made by the adjudicator. Rather, the evidence either related to issues of natural jus-

Audmax Inc. v. Ontario (Human Rights Tribunal)

tice or served to put the decision of the Tribunal into a mean- ingful context. Th is was particularly important since there is no transcript of the proceedings and the adjudicator's rea- sons on the two points at issue are sparse.

(12] The first exhibit is a letter from Paul Barnett, a consul- tant who had worked closely with Audmax for 13 years and shared office space with it. Ms. Telfer explains in her affidavit that at the beginning of the hearing she tendered to the Tri- bunal a sealed envelope containing the letter from Mr. Bar- nett, which sets out the reason for his inability to attend and the substance of his proposed evidence. The adjudicator stated in his reasons at § 8, "I refused to accept the previ- ously undisclosed letter into evidence as it would have been prejudicial to the applicant, unreliable and of limited proba- tive value". Inexplicably, the adjudicator did not open the sealed envelope, did not read the letter, and did not enter it into the record so that it could be available to a court on ju- dicial review. Rather, he handed it back to Ms. Telfer un- opened.

(13] The reasons given by Mr. Barnett for his absence are relevant to whether the adjudicator should have proceeded with the hearing without offering other options to Audmax and whether it was appropriate to draw an adverse infer- ence against Audmax because of its failure to call Mr. Bar- nett as a witness. The substance of Mr. Barnett's evidence. as set out in the letter, is also relevant to those two issues, as well as to whether his testimony could have had an impact on the outcome of the hearing (the complainant having tak- en the position before this Court that Mr. Barnett's evidence was tangential and could not have affected the result).

(14] The second exhibit is a photograph of a woman wear- ing a mid-thigh length top, leggings and sandals. Ms. Telfer had attempted to introduce this photograph during her testi- mony as a visual aid to explain to the adjudicator the type of clothing Ms. Saadi had been wearing on May 16, 2008, which had prompted the meeting with her to discuss the of- fice dress code. In his reasons, the adjudicator stated at § 64 that he refused to admit the photograph because "it was raised for the f irst time very late in the hearing, the allegation had not been disclosed prior to the hearing and questions about this matter were not put to the applicant on cross-ex- amination". Again , it would have been helpful if the adjudi- cator had included the rejected photograph in the record so that we cou ld better understand its nature. We permitted the photog raph to be filed before us solely for that purpose.

(15] The evidence sought to be admitted is very limited in nature. It addresses issues of natural justice that cannot be discerned from the record due to the complete lack of any transcript or recording of the proceedings. It is also neces- sary to properly understand and evaluate the adjudicator's rulings, and the impact of those rulings on the resul t. This Court therefore concluded that this was one of those rare and exceptional cases in which the rules for admission of such evidence , as established by the Court of Appeal in Keeprite Workers' Independent Union v. Keeprite Products Ltd.,3 had been met.

C. STANDARD OF REVIEW

(16] Before determining the applicable standard for judi-

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Paragraphs 17 - 27 CANADI AN HUMAN R I GHT S REPO RTER 72 C .H.R.R.

cial review of decisions of the HRTO, it is first necessary to consider two significant and relatively recent developments in the law: one from case law and the other statutory.

[ 17] Prior to 2008, there were three levels of scrutiny ap- plied in judicial review of administrative tribunals: patent un- reasonableness; reasonableness simpliciter; and correct- ness. Also prior to that time, the Ontario Human Rights Code provided for a fu ll right of appeal to the Divisional Court from decisions of a Board of Inquiry under the Code and the cor- rectness standard was typical ly applied in those cases. 4

[18) In 2009, in its landmark ruling in Dunsmuir v. New Brunswick,5 the Supreme Court of Canada held that there wou ld no longer be th ree standards of review; the patent un- reasonableness standard was eliminated. In coming to that conc lusion, the Supreme Cou rt recognized the problems encountered by reviewing courts in grappling with the dis- tinction between decisions that were "merely unreasonable" and those that were "patently unreasonable''.

[19) Case law prior to Dunsmuir had interpreted the patent unreasonableness standard as mean ing "clearly irrational" or "evidently not in accordance with reason". A patently un- reasonable decision was described as being "so flawed that no amount of curial deference can justify letting it stand" . By contrast, a decision that was merely unreasonable (but not patently unreasonable) was one in which the defect was not as immediately obvious and might only be discovered after "significant searching or testing" .6

[20) In Dunsmuir the Supreme Court considered the use- fu lness of maintaining the two separate reasonableness standards . The Court noted at § 41 the comments of Profes- sor Mullan: 7

(T]o maintain a position that it is only the "clearly irra- tional" that will cross the threshold of patent unreason- ableness while irrationality simpliciterwill not is to make a nonsense of the law. Attaching the adjective "clearly" to irrational is surely a tautology. Like "uniqueness", irra- tionality either exists or it does not. There cannot be shades of irrationality.

(21) The Supreme Court concluded that maintaining the distinction between reasonableness simpliciter and patent unreasonableness could not be justified, holding (at § 42) that it is "inconsistent with the rule of law to retain an irra- tional decision" . The Court quoted with approval , the follow- ing words of Lebel J. in his concurring reasons in Toronto (City) v. C.U.P.E. , at§ 108:

In the end, the essential question remains the same un- der both standards: was the decision of the adjudicator taken in accordance with reason? Where the answer is no , tor instance because the legislation in question can- not rationally support the adjudicator's interpretation, the error will invalidate the decision, regardless of whether the standard applied is reasonableness simpficiter or patent unreasonableness ..

[22) Essentially, Dunsmuir resulted in the two previous standards of reasonableness and patent unreasonableness being collapsed into a single reasonableness standard. Questions that had previously been reviewed on a correct-

D/40

ness standard continued post-Dunsmuir to be reviewed on that basis. However, decisions of tribunals that had previ- ously been accorded the highest level of deference, the patent unreasonableness standard , are now subject to the single all-encompassing reasonableness standard. The Court in Dunsmuir emphasized that the move to two stan- dards should not be interpreted as a licence to reviewing courts to be less deferential in their approach to the deci- sions of administrative tribunals. Indeed, the Court recog- nized at § 48 that the concept of deference as "central to ju- dicial review in administrative law" and held that "[t]he move towards a sing le reasonableness standard does not pave the way for a more intrusive review by courts''.

[23) The reasonableness standard developed in Dunsmuir is concerned with "the existence of justification, transpar- ency and intelligibility with in the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defen- sible in respect of the facts and law".8

[24) All other things being equal , the application of the principles in Dunsmuir would likely have led to the imposi- t ion of a standard of correctness on appeals from human rights tribunals, as had been imposed in the past. However, in 2006, there was a massive change to the legislative hu- man rights regime in Ontario, a change which f,undamentally altered the nature of the Ontario Human Rights Tribunal. 9 In addition, the legislative amendments that accomplished these changes directly addressed the judicial review issue.

[25) Under the new regime, wh ich came into force on June 30 , 2008, a decision of the Tribunal is no longer subject to a right of appeal , but rather can on ly be challenged by judicial review. Further, decisions of the Tribunal are protected by a privative c lause and by a statutorily mandated standard of review of patent unreasonableness. Section 45.8 of the new legislation provides:

45.8 ... a decision of the Tribunal is final and not sub- ject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.10

[26] Does the statutorily imposed standard of "patently un- reasonable" require a return to the previous case law d istin- guishing that standard from unreasonableness simpliciter? Based on the decision of the Supreme Court of Canada in Khosa11 and the recent Divisional Court decision in Shaw v. Phipps,12 the short answer to that question is "No" . However, some exp lanation is required.

[27) First, it must be acknowledged that it is open to a leg- islature to spec ify the standard of review to be applied to de- cisions of a tribunal, and cou rts wi ll respect such legislative choices. 13 However, the interpretation of standards imposed by statute wi ll be determined within the context of adminis- trative law principles. In Khosa, the Supreme Court of Canada considered British Columbia legislation 14 that im- posed a patent unreasonableness test for "a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over wh ich it has exc lusive jurisdiction under a privative clause". Binnie J. held (at§ 19):

Paragraphs 28 - 37

... The expression "patently unreasonable" did not spring unassisted from the mind of the legislator. It was obvi- ously intended to be understood in the context of the common law jurisprudence, although a number of indicia of patent unreasonableness are given in s. 58(3). Despite Dunsmuir, " patent unreasonableness" will live on in British Columbia, but the content of the expression, and the precise degree of deference it commands in the di- verse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law.

[28) In Shaw v. Phipps, this Court considered and applied Khosa to determine the content of the standard of review now to be appl ied to decisions of the Ontario Human Rights Tribunal in light of the statutory patent unreasonableness standard .

[29) It is important to note a key d istinction between the British Columbia legislation and the Ontario human rights legislation. The British Columbia statute does not merely state the standard, but rather it stipulates various factors that would make a decision patently unreasonable. How- ever, in the Ontario legislation there is no guidance provided as to what the term "patently unreasonable" means. I agree with the observations of the Divisional Court in Shaw v. Phipps at§ 37-38 that the Ontario Legislature obviously in- tended that the newly created Human Rights Tribunal should be reviewed on the highest deferential standard of review and should be accorded the same high degree of deference accorded to other experienced and expert ad- ministrative tribunals such as the Ontario Labour Relations Board, labour arbitrators. and the Workplace Safety and In- surance Appeals Tribunal.

(30] However, as was noted in Shaw v. Phipps, the Supreme Court of Canada has signalled a clear shift away from making a distinction between decisions that are patently unreasonable and those that are merely unreason- able, having concluded that there is "no meaningful way in practice of distinguishing" the two and that it would be in- consistent with the rule of law "to require parties to accept an irrational decision simply because, on a deferential stan- dard, the irrationality of the decision is not clear enough" .15

[31] The Ontario Court of Appeal has rejected the sugges- tion that there is a spectrum or continuum of deference within the reasonableness standard, with varying deg rees of deference within that standard .16 There is but one reason- ableness standard. However, again as noted in Shaw v. Phipps, context is important. In Khosa, Binnie J . stated at§ 59 that reasonableness "takes its colour from the context" . The Divisional Court in Shaw v. Phipps also referred at § 40 to an article by Professor Gerald Heckman who suggests that the range of possible, acceptable outcomes may ex- pand or contract depending on factors such as the nature of the question and the expertise of the decision maker.

[32] The underlying reasoning in Dunsmuir leads to the conc lusion that label ling a standard as "reasonab leness" or "patent unreasonableness" is largely a matter of semantics. The Supreme Court stipulated that the elim ination of the patent unreasonableness test does not mean that tribunals previously reviewed on that standard are now to be ac-

Audmax Inc. v. Ontario (Human Rights Tribunal)

corded less deference. The Leg islature has required that the Tri bunal be reviewed on that highest deferential stan- dard. As was found in Shaw v. Phipps at § 41, "the highest degree of deference is to be accorded to decisions of the Tribunal on judicial review with respect to determinations of fact and the interpretation of human rights law, where the Tri- bunal has a specialized expertise" . However, decisions of the Tribunal are required to be rationally supported and to fal l within a range of possible, acceptable outcomes that are defensible in fact and law. Otherwise, they will be consid- ered to be "patently unreasonable" within the meaning of the legislation.

[33] With respect to issues of procedural fairness and nat- ural justice, there is no need to determine a standard of re- view. It is clear that, given the nature of this proceeding, rules of procedural fairness applied. If fundamental rules of procedural fairness are not observed , this may render the proceeding unfair, which is a sufficient ground , stand ing alone , to set aside the decision.17

D. ANALYSIS

i. The Employer's Missing Witness

(34) According to the letter from Mr. Barnett, he was un- able to attend the hearing because he was required to travel to East Africa to deal with an emergency involving his daughter who resides there.

[35] There can be no doubt that Mr. Barnett was a key wit- ness for Audmax. Mr. Barnett was listed by Audmax as a wit- ness who would be called to testify at the hearing. He shared office space with and was a consultant to Audmax, including on matters involving personnel. It was Mr. Barnett who provided the microwave for the lunchroom and he was involved in both creating and implementing the office pol icy about its use. He was present at the May 16, 2008, meeting with Ms. Saad i about her manner of dress and at the June 3, 2008, meeting at which she was dismissed. Mr. Barnett was also to have testifie d as to Ms. Saadi's conduct, which the employer conside red to be suspicious, including secretive cell phone use in the office, unauthorized intrusions into other people 's desks, and missing files.

[36) The app licant Audmax does not challenge the adjudi- cator's ruling that the testimony of Mr. Barnett should not be admitted th rough an unsworn written synopsis. It is acknowl- edged that the case involved credibility issues, that Mr. Bar- nett's evidence was important and contentious, and that it would not be fair to the complainant to admit such evid ence without giving her the opportunity to cross-examine Mr. f?ar- nett. The appl icant argues, however, that the adjudicator ought to have explored other options for obtaini ng Mr. Bar- nett's evidence.

[37] Ms. Saadi argues that since Ms. Telfer did not request an adjournment in order to obtain the evidence of Mr. Bar- nett, there can be no criticism of the failure of the adjudica- tor to consid er that possib ility. I do not agree. It was appar- ent from Ms. Teller's witness list, and from her attempt to introduce Mr. Barnett's evidence in writing, that she was re- lying upon his evidence in her defence. She was unrepre- sented by counsel at the hearing and not fully conversant

D/41

Paragraphs 38 - 45 CANADIAN HUMAN RIGHTS REPORTER 72 C.H.R.R.

with her rights. In my view, it was incumbent on the adjudi- cator to consider the implications for Ms. Telfer and Audmax of his refusal to accept Mr. Barnett's evidence in written form and to provide Ms. Telfer with some information about her options.

[38) In Toronto Dominion Bank v. Hyfton18 the Ontario Court of Appeal ordered a new hearing based on the failure of a motion judge to properly protect the rights of an unrep- resented litigant who had requested an adjournment. Ep- stei n J.A. stated at§ 39:

Once again, the fact that a party is self-represented is a relevant factor. That is not to say that a self-represented party is entitled to a "pass". However, as part of the court's obligation to ensure that all litigants have a fair op- portunity to advance their positions, the court must assist self-represented oarties so they can oresent their cases to the best of their abilities. [Emphasis added.)

[39] The Court of Appeal referred with approval to the fol- lowing "helpful list" of ways in which a decision maker should assist unrepresented litigants, as set out by Linhares de Sousa J. on appeal from an arbitrator in a family law dis- pute:

(N]umerous Court decisions have reiterated the principle again and again, that self-represented parties are entitled to receive assistance from an adjudicator to permit them to fairly present their case on the issues in question. This may include directions on procedure, the nature of the evidence that can be presented, the calling of witnesses, the form of questioning, requests for adjoyrnments and even the raising of substantive and evidentiary issues. 19

(Emphasis added .]

[ 40] Ms. Telfer stated in her affidavit that if the adj udicator had advised her of the right to seek an adjournment, she would have requested a delay in the hearing until Mr. Bar- nett could attend. The fact that a previou s adjourn ment of the hearing date had been obtained in this case does not mean that Ms. Telfer must be taken to have known about the right to request an adjournment. That adjournment was arranged in advance of the hearing date and at a time when Ms. Telfer and Audmax were represented by counsel. In my view, in this situation it was incumbent upon the adjudicator to at least raise the possibility of an adjournment in order to accommodate the attendance of Mr. Barnett to testify. Since no inquiries were made as to when Mr. Barnett would be available to attend, it is not clear how long an adjournment would have been required. However, there is nothing to indi- cate that an adjournment would have caused any prejudice to the other parties. Further, other options short of an ad- journment of the hearing could have b een explored. For ex- ample, it might have been possi ble to proceed with other witnesses, and schedu le the testimony of Mr. Barnett at a later date, or it might have been possible to obtai n his evi- dence through video or audio conferencing.

[ 41] If an adjournment or some other accommodation had been requested. the adjudicator would have been required to consider the "evidence and strength of the evidence of the reason for the adjournment request , the history of the matter including deliberate delay or misuse of the court process. the prejudice to the party resisting the adjournment

D/42

and the consequence to the requestin g party of refusing the request". 20 None of these issues were considered by the ad- judicator in th is case. He simply dismissed the request to admit the evidence in writing and gave no consideration to any other options that might be available to ensure the un- represented parties had a fair opportunity to present their defence.

[42] That is not to say that an adjournment of the hearing should necessarily have been granted in this case. How- ever, the failure to even consi der the available options was unfair to the unrepresented parties and compromised the overall fairness of the hearing. This constitutes a breach of procedural fairness that~. on its own, result in the deci- sion being quashed.21 In this case. the adjudicator com- pounded the problem. and the unfairness. by drawing an adverse inference from the failure of Mr. Barnett to testify on critical issues related to the reason for Ms. Saadi 's dis- missal.22

[ 43] I do not accept the respondent's argument that this is- sue caused no unfairness to the applicants because the ev- idence of Mr. Barnett could not have affected the result. He was a crucial witness for the employer. He was present with Ms. Telfer at two critical meetings: one involving the dress code and the other involving the dismissal. His very pres- ence at the disciplinary meeting regarding the dress code was found by the adjudicator to constitute dfscrimination . He had direct involvement in th e development and enforce- ment of the microwave policy. On some issues, the adjudi- cator did not accept the evidence of Ms. Telfer and might well have been persuaded to the contrary if there was cor- roborative evidence from Mr. Barnett. Finally, on the key is- sue of whether the employer had dismissed Ms. Saadi for discriminatory reasons, the adjudicator held that the em- ployer had failed to prove its allegations as to the non-dis- criminatory reasons for firing Ms. Saadi. The adjudicator based that conclusion, in part, on an adverse inference drawn from the failure of the employer to call Mr. Barnett as a witness. Given the ci rcu mstances in which the emp loyer was unable to call Mr. Barnett. the palpable unfairness of that ruling is obvious.

[44] Accordingly, in all of the circumstances. I find the ad- judicator breached principles of procedural fairness in the manner in which he handled Mr. Barnett's inability to testify at the set hearing dates.

ii. Aspects of the Complaint that Were Dismissed

[45] A number of the allegations made by Ms. Saadi were found by the adjudicator to b e unsubstantiated. For exam- ple, he found that although some questions were asked at the initial job interview about Ms. Saadi's place of origin, in the context of an org anization providing services to immi- grant women, such questions were not out of place and had no discriminatory impact on Ms. Saadi. Similarly, when Ms. Saadi mentioned in the workplace that her parents were from Bangladesh. Ms. Telfer had asked questions about her understanding of how Bangladeshi women were treated. The adjudicator found that these questions had relevance to the work of Audmax, whose clients included many immi- grant women from Bangladesh, and were not discriminatory.

Paragraphs 46 - 56

[ 46] Aud max had a policy that employees were req uired to speak English in the workplace, except when dealing with Francophone clients. Ms. Saadi alleged that this policy was discriminatory towards her. The adjudicator accepted the evidence of Ms. Telfer that she had instituted the policy prior to Ms. Saadi's hire because of a conflict that had arisen in the workplace involving two French-speaking employees. The adj udicator noted that French is not Ms. Saadi's first lan- guage and that she does not speak French regularly or at a high level of proficiency. He therefore concluded that the English-only policy was not a proxy for racial discrimination against Ms. Saadi.

[47] The adjudicator also accepted Ms. Teller's explana- tion for warning her staff to be careful when using the office email system for personal emails because she believed the authorities could monitor personal emails. He found no dis- criminatory basis for such advice.

[48] At the time she was hired, Ms. Saadi was one of three Muslim women employed by Audmax. Not long after her hir- ing , the other two Muslim women resigned. Ms. Saadi be- lieved that thereafter she was subjected to suspicion and distrust based on her Muslim id entity and discriminatory stereotypes. Ms. Telfer acknowledged being suspicious and distrustful of Ms. Saadi, but alleged she had good reasons for it. The adjudicator did not accept Ms. Telfer's evidence as to the basis for her suspic ions.23 However, the adjud ica- tor also did not find that the surveillance and distrust of Ms. Saad i were motivated, whether consciously or uncon- sciously, on the basis of Ms. Saad i's rel igion or ethnic orig in. He held at § 83 that to infer such a motivation from the cir- cumstantial evidence available would be "too speculative''.

iii. The Microwave Policy

[49] Audmax had a workplace environmental sensitivity policy. It included a ban on the use of scented deodorants and perfume as well as restrictions on using the microwave to reheat foods that had a strong odour or that could affect persons with seafood or peanut allergies. Ms. Saadi alleged that she was singled out for discriminatory enforcement of the microwave policy based on the intersection of her race, ancestry, ethnic origin and place of origin.

[50] The adjudicator ruled at § 46, "Nothing in the evi- dence suggests that the [employer] deliberately targeted [Ms. Saadi] for discriminatory enforcement of the microwave policy". His ultimate conclusion that Ms. Saadi had been discriminated against in respect of the policy must, there- fore, have been based on adverse effect discrimination.

[51] Although the adjudicator referred in another portion of his reasons dealing with the dress code (at § 60) to the Supreme Court of Canada's landmark decision in Meiorin,24 in the course of his analysis on the microwave policy he made no reference to that case or to the principles it estab- lished. Indeed, he made no reference to any applicable le- gal principles. The only authority he mentioned is a British Columbia Human Rights Tribunal d ecision deal ing with the preparation of cooked food s in one's own home as an ex- pression of ethnicity and ancestry_2s The adjudicator cor- rectly pointed out that the workplace is a different environ- ment from one's own home. but did not deal with whether

Audmax Inc. v. Ontario (Human Rights Tribunal)

there is anything about ethnicity and ancestry generally, or in the particular case of Ms. Saadi, that requires the reheat- ing of particular foods at lunchtime in the workplace.

[52) The adjudicator then observed at § 47 that the mi- crowave policy was "a moving target" that was virtually im- possible to com ply with because there was no list of foods that would fall within the policy. He stated that other staff members who had previously used the microwave had ceased using it completely because of Ms. Teller's vigorous enforcement of the policy, but that Ms. Saadi continued to use it. It is difficult to understand how the policy can be said to have an adverse effect on Ms. Saadi if she continued to use the microwave whereas other employees had stopped using it altogether. It would appear from that factual conclu- sion that the policy had less impact on Ms. Saad i than on others.

[53] It is also difficult to discern from the reasons how Ms. Saadi's ancestry or ethnic origin relate at all to her difficulty with the microwave policy. The adjudicator makes no find- ings as to what foods Ms. Saadi was criticized for reheating in the microwave, and there is no transcri pt of the evidence. However, in Ms. Saadi's complaint she alleged that she was discipli ned for microwaving food that had been given to her by a co-worker who is originally from Tunisia. I do not see how the ethnicity and ancestral rights of a Bengali-Canadian Muslim are adversely affected by being prevented from re- heating somebody else's Tunisian food.

[54) The reasons are so sparse on the factual underpin- nings for th is aspect of the decision that it is impossib le to follow the pathway by which the adjudicator came to his conclusion of discrimination. The adjudicator stated at§ 48 that the policy was ambiguous and that such ambiguity "leads to arbitrariness and the conditions for discriminatory enforcement''. He then concluded, "[t]o the extent that the ap pl icant was di sci plined for her violations of the microwave policy, and that those violations constituted a factor in her termination, I find she was discriminated against on the ba- sis of her ancestry and ethnic origin".

[55] This is a bald conclusion that is unsupported by any factual findings. There is no reference to what the discipline was, what the violations were, or how they were connected in any way to Ms. Saadi 's ethnic origin or ancestry. The fact that ambiguous standards can lead to discriminatory en- forcement d oes not mean that this occurred here, particu- larly in light of the finding made by the adjudicator that Ms. Saadi was not directly targeted tor enforcement.

(56] There is also no actual finding that the policy had a discriminatory impact on people of a particular ethnic orig in. Fu rther, there is no analysis whatsoever as to whether the employer had justified the policy as required under Meiorin by demonstrating : ( 1) that the stan dard was adopted for a purpose rationally connected to the performance of the job; (2) that the employer honestly and in good faith believed the policy was necessary to the fulfillment of that legitimate work-related purpose; and (3) that the standard is reason- ab ly necessary to the accomplishment of that legitimate work-related purpose. Indeed , there is no reference whatso- ever to any of these concepts.

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Paragraphs 57 - 68 CANADIAN HUMAN RIGHTS REPORTER 72 C.H.R.R.

(57] In short, the reasons do not disclose a rational basis for the. conclusion that there was d iscrimination against Ms. Saad1 1n respect of the microwave policy. In that sense, the reasons cannot be said to be reasonable. In Dunsmuir, the Supreme Court held that a consideration of reasonableness includes both outcomes and the process of articulating rea- sons. The Court described reasonableness at§ 47 as being "concerned mostly with the existence of justification, trans- parency and intelligibility within the decision-making process". The reasons with respect to the microwave policy are neither transparent nor intelligible. It is not possible to determine how the adjudicator reached the conclusion he did. The outcome may or may not be patently unreasonable· it is not possible to say, because the articulation of the rea~ sons is inadequate to justify the conclusion. Accordingly, the conclusion of discrimination in respect of the microwave policy is irrational and patently unreasonable. It cannot stand.

[58] Further, the reasons are not adequate to explain the basis for the decision or to permit meaningful appellate re- view, and therefore also constitute a breach of principles of procedural fairness and natural justice. This is also a suffi- cient basis to set aside the conclusion with respect to the microwave policy. 2s

iv. The Office Dress Code

(59] Audmax had a written dress code policy requiring its employees to wear "business attire" in the workplace. The employer argued that this policy was a bona fide occupa- tional requirement as the company was in the business of advising newcomers with respect to finding employment in Canada, and it was essential that staff lead by example and dress with an appropriate degree of professionalism.

(60] As an observant Muslim woman, Ms. Saadi adhered to the principle of "modest dress and behaviour" and wore a h«ab to c~wer. her hair. She argued that the employer dis- cnm1natonly singled her out for corrective action regarding her mode of dress in a manner that constituted discrimina- ti~n and harassment. She fur ther alleged that the employer failed to accommodate her personal choice with respect to the style of hijab she wore.

(61] This aspect of the complaint is based on a meeting that took place on May 16, 2008, involving Ms. Telfer, Mr. Barnett and Ms. Saadi. At that meeting, Ms. Saadi was spo- ken to about various aspects of what she was wearing that day, which the employer felt did not constitute proper busi- ness attire. In particular, the employer objected to: an ankle bracelet t~at "jingled;" open-toed "slippers;" clothing that was described as a "tight short skirt and leggings;" and a form of head covering described as a "cap".

(62] The. adjudicator made clear findings with respect to the ankle jewellery and footwear. stating that there was no link between those and any Code-protected ground. No- body takes issue with those findings.

(63] However, the adjudicator found that the employer breached the Code in relation to the clothing and the hijab. The process by which the adjudicator reached that conclu- sion on these two points is not clear, either in fact or in law.

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(64] The adjudicator stated at§ 59 that employers are "en- titled to maintain and enforce appropriate dress code poli- cies". He then stated that such policies must not discrimi- nate on their face (giving as an example a "no hijab allowed" rule). He further held that policies must not discriminate indi- rectly through the application of a neutral rule that has an adverse impact on a protected group (giving as an example a rule that no head coverings are allowed), unless the em- ployer can show the rule is a necessary requirement of the job and that there can be no accommodation without undue hardship. The adjudicator then referred to the three-stage test 1n Me1onn. There is no d iffic ulty w ith the adjud icator's statement of the law in this regard. However, he failed to ap- ply those legal principles to the case before him.

(65] In particular, although the adjudicator made a finding of discrimination, it is unclear if that finding is based on a conclusion that the employer discriminated directly by tar- geting Ms. Saadi and requ iring her to dress in a manner contrary to her religious beliefs, or whether the finding is based on the conclusion that the dress code policy caused an adverse impact that the emp loyer failed to properly ac- commodate.

(66] In respect of the clothing, this d ifficulty is com- pounded by conflicting and vague factual findings.

(67] The adjudicator made no clear finding as to what Ms. Saadi was actually wearing on May 16, 2008 , the o nly time the employer raised the issue of her compliance with the dress code. He stated that he rejected the employer's as- sertion that Ms. Saadi wore a tight short skirt and leggings. He said he preferred Ms. Saadi's evidence that she would not wear such an outfit because as an observant Muslim woman she would never wear a tight or short skirt.

(68) No reasons whatsoever are provided for rejecting the evidence of Ms. Telfer, or for accepting the evidence of Ms. Saadi. This makes appellate review of the findings illusor.y. Th~ Court of Appeal held in Law Society of Upper Canada v. Nemste'.n2

7 that when credibility is an important factor, bald

conclusions as to the credibility of one witness as compared to another wi ll not suffice. The Court held (at§ 83-84):

The reasons relating to C.T.'s complaints compel the con- clusion that those reasons do not address the "why" com- ponent required in reasons for judgment. The Hearing Panel's reasons are a combination of generic general ities (e.g . "gave her evidence in a forthright manner"), unex- plained conclusory observations (e .g . "withstood cross- examination well"), material omissions (e.g. the fa ilure to articulate any analysis of Mr. Neinstein's evidence) and uncertainty as to the legal principles applied to the credi- bility analysis (e.g. the corroboration finding). Taken to- gether, these inadequacies render the reasons in respect of C.T. 's allegations so inadequate as to prevent mean- ingful appellate review.

The Hearing Panel's reasons for accepting S.G.'s allega- tions offer even less insight into its decision than do its reasons concerning C.T.'s allegations. Examined from a functional perspective, the Hearing Panel's reasons relat - ing to S.G.'s allegations come perilously close to consti- tuting no reasons at all. After summarizing the relevant

Paragraphs 69 - 78

evidence. the Hearin g Panel sets out its findings of fact, all in favour of S.G., in a series of conclusory statements, none of which offer any explanation for the findings or an analysis of the evidence relevant to those findings (paras. 136-148).

(69] The credibility reasons provided by the tribunal that were found to be lacking in the Neinstein case were far more detailed and specific than is the case here. Indeed, apart from the bald statement that he preferred the evidence of one witness over another, the adj udicator gave no actual reasons for any of his credib il ity fin dings. That is particu la rly problematic in th is situation where resolution of the issue de- pended upon whose testimony was believed .

(70] Ms. Telfer attempted to place into evidence a photo- graph she had found on the internet to illustrate the type of outfit she said Ms. Saadi had been wearing that day. The adjudicator held that this evidence was not admissible be- cause it was raised late in the hearing and had not been p ut to Ms. Saadi in cross-examination. The photograph in ques- tion is one of the exhibits we admitted as new evidence on this application. It provides a graphic illustration of the kind of apparel the employer says Ms. Saadi was wearing. I see no principled basis for excluding such evidence from !he hearing. It is simply a visual aid to explain a .type of clothing that is not easy to describe orally. The ad1ud1cator appeared to be having difficulty understandin g Ms. Telfer's oral .testi- mony as to the type of c lothing to wh ic h she was referring. I wou ld have thou ght a photog raph wou ld have been of some assistance.

(71] Although he did not say so explicitly, the adjud icator appears to have relied on the rule in Browne v. Ounn~8.to ex- clude this evidence. In my view, that 1s an overly ng1d ap- proach to the evidence in a case of this nature, particularly in view of the fact that the employer was not represented by counsel and could not be expected to know about the rule. In any event, even applying the ru le, exclusion of the evi- dence should be a last resort and only exercised where any other remedy would be undu ly prejudicial to the other party. In th is situation, it is difficult to see how Ms. Saadi can be said to be taken by surprise or to have been prejudiced by the introduction of the photograph. She would have the right to testify in response and to either accept or reject the accu- racy of this picture as representative of the type of clothing she was wearing. Indeed , g iven the crucial role of the cloth- ing Ms. Saadi wore on May 16, 2008, and the fact that Ms. Saadi herself relied on th is pa rticu lar meeting in support of her claim of discrimination, it is su rprisin g that the actual clothing, or a photograph of it, was not introduced into evi- dence by Ms. Saadi. She was represented by counsel throughout and the importance of the clothing would have been obvious. There is no reference in the reasons to the failure of Ms. Saad i to present this evidence, which was within her sole control, nor is there any reference to any rea- son for not having such evidence before the Tribunal. How- ever, quite apart from whether an adverse inference c.ould or should have been drawn against Ms. Saad1 on this issue, I consider it unfair to have prevented Ms. Telfer to use a visual aid to explain her oral testimony on this crucial point.

(72] The insufficiency of the factual find ings as to what Ms.

Audmax Inc. v. Ontario (Human Rights Tribunal)

Saadi was wearing is exacerbated by conflicting findings with respect to the dress code itself.

(73] At § 53 and 54 in his reasons, the adjudicator .refer~ to the d ress code as being in writing, included in orientation material. "reasonably c learl y drafted", and "well known to all staff". He further noted that the employer "went to great len gths to illustrate ways of complying w ith the policy" . He described the policy as requiring "business attire" and stated that the po licy listed things that were appropriate, as well as things that were forbidden (such as jeans and run- ning shoes).

(74] It is unc lear how such a policy would conflict with Ms. Saad i's relig ious requirements to dress in a modest fashion . There would not appear to be anything specific in the policy that would conflict with such a requirement, nor is there any- thing about modest clothing that would conflict with a busi- ness attire requirement.

(75] Later in his reasons, at § 65, the adjudicator indicated that he found Ms. Teller's evidence as to the dress code re- quirements to be "confusing at best", stating that "[s]he tes- tified that the policy would tolerate skirts with nylons, socks or bare legs, but that leggings or tight pants would not be acceptable under skirts''. He then held that the "d ress code appears to be arb itrarily applied , subject to Ms. Teller's opi nions and preferences about how she wants her staff to look". That conclusion would appear to be at odds w ith the earlier finding that the policy was c lear and well know.n to staff. It would also seem to be pointin g to a finding of d irect d iscrim ination as to the manner in which the policy was ap- plied. However. immediately after stating that the policy was arbitrarily applied , the adjudicator made his final ru ling on the point, stating:

... This constituted adverse-effects discrimination on the ground of creed against the applicant, whose religiously conforming attire at times conflicted with the respon - dents' dress code. There is no indication that the dress code comprised a bona fide occupational requirement within the meaning of the Code.

[76] It is difficult to rationalize this legal conc lusion with the factual findings or the case law. First of a ll, there does not appear to have been any determination that the dress code had an adverse impact on Ms. Saad1 because of the re- quiremen ts of her rel igion. What was the neutral requiremen t of the policy that conflicte d w ith the religious duty? There does not appear to have been one.

(77] Secondly, the statement that Ms. Saad i's "religiously conforming attire at times conflicted with the dress code " 1s not su pported by any factual findings. There was ~nly the one occasion that this came up, and the objection raised by the employer was that Ms. Saadi's c lothing was inappropri- ate because it was too tight and too short. That 1s the very opposite of modest and rel igiously conformi~g ~ttire: The employer's evidence was rejected by the a?jud1cator, but without any description of what Ms. Saad1 was actually wearing, making it impossible to determine if there "."as something about that clothing that was rel1g1ously required and not in conformity with the policy.

(78] Third, the bald conclusion that there is "no ind ication

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Paragraphs 79 - 87 CANADIAN HUMAN RIGHTS REPORTER

72 C.H. R. R.

that the dr,;ss code comprised a bona fide occupational re- quir.ement is unsupported by any legal reasoning or factual f1nd1ngs. There 1s no consideration of the test established in Meiorin, n? finding as to whether the dress code require- ment 1n this workplace was rationally connected to the na- ture of the work, no determination as to whether the policy was adopted by Audmax in good faith, and no analysis of whether the imposition of the rule was reasonably necessary in the sense that accommodation short of undue hardship was not possible.

[79] FinaHy, if the finding was actually that there was no problem with the policy itself but that the employer used the policy as a ruse to harass Ms. Saadi because of her race or creed, that is not apparent from the reasons and is unsup- ported by any fac tual determinations made.

[80] Given.the dearth of reasons on key points, the flawed legal reasoning, and the absence of important factual find- ings, the decision on this point cannot be said to be rational or logical. It would appear that there was something about what Ms. Saad1 was wearing on that particular day that at- tracted the employer's attention in a negative way. It may be that the employer's dress code was to some extent subjec- tive and a reflection of personal taste, but that does not make it discriminatory. I can see no line of reasoning that could log~cally lead to th.e conclusion that conforming to the employers business attire dress code would conflict with Ms . . saadi's religious beliefs. The reasons disclose no con- trad1ct1on between dressing modestly and dressing in a pro- fessional business manner. Nor do the reasons disclose any basis for finding that the employer's imposition of discipline with respect to the dress code on May 16, 2008, was in any way directed at, or connected to, Ms. Saadi's race or reli- gion. Accordingly, in my view, the decision on this point is patently unreasonable.

[81J. Similar problems arise in the adjudicator's analysis of the issues relating to the hijab. The adjudicator accepted that the ~mployer supported the right of Muslim women to wear a hl)ab 1n the workplace, that Ms. Saadi (and other em- ployees) had worn a hijab every day at work, and that vari- ous forms of head coverings had been accepted by the em- ploy~r for other employees, including a simple bandana. The issue with the hijab arose only on May 16, 2008. The employer described what Ms. Saadi was wearing as a "cap" and Objected to 1t as not looking professional. Ms. Saadi ap- parently acknow,ledged that what she was wearing was not the trad1t1onal h!jab, but rather what she considered to be an elegant form of the hijab, which she had ordered online from Indonesia, believing it would enhance her professional ap- pearance.

[82] In my opinion, Ms. Saadi, as the owner of the head coverin.g in question and knowledgeable as to where one might find an .image of it online, could reasonably be ex- pected to provide the Tribunal either with the item itself or an exact photograph of it. She did not do so, leaving both the Tribunal. and this Court to speculate as to whether it could be considered to be appropriate office attire.

[83] I al.so note that there is no express finding that once Ms . Saad1 provided an explanation with respect to the head- dress in question she was prohibited from wearing it. Rather,

D/46

it would appear that the employer merely included the "cap" a~ one of a number of items worn by Ms. Saadi that day that did not, 1n the employer's view, constitute proper business attire. There is no indication that Ms. Saadi was thereafter prevented from wearing that form of hijab.

[84] The adjudicator held at§ 69 that "[t]he Code guaran- tees not only a woman's right to wear a religious headdress in the workplace, but also her right to choose the form of re- l1g1ous headdress, subject only to bona fide occupational requ1rements")Emp~asis in original.] He then held that [at§ 71] there was no evidence beyond Ms. Teller's description of the he_address as a 'cap' to suggest that [Ms. Saadi's] form of h1;ab was, by any fair, objective and non-discrimina- tory standard, unprofessional". He referred [at § 72] to the dress code policy as "non-neutral, vague and arbitrary" and held that the "singling out of [Ms. Saadi] for corrective action on the basis of her chosen fo rm of hijab, which was clearly worn for rel1g1ous reasons, amounted to discrimination".

[85] Although the adjudicator makes passing reference to the policy having an adverse effect, it wou ld seem that his finding of discrimination is based on a conclusion that the employer directly discriminated against Ms. Saadi based on her religion. It is difficult to determine whether the headdress !n question is unprofessional in appearance without seeing 1~. It 1s unreasonable to impose on the employer an obliga- llon to prove the headdress is objectively ~nprofessional in appearance when the employer has no access to the head- dress itself and the employee does. The fact that the em- ployer had no problem accommodating different kinds of headdress in the past, both with respect to Ms. Saadi and others, suggests to me that what was at issue here was a question of style and taste, not religious accommodation.

(86] In my view, the adjudicator proceeded on an illogical, and legally incorrect, course of reasoning. First, he held that what_ Ms. Saadi was wearing on the day in question was consistent with her religious requirements. Second, he held that what Ms. Saadi was wearing was, at least according to the employer, 1ncons1stent with the dress code. He therefore ~oncluded that_ the dress code violated Ms. Saadi's religious rights. The logical step that the adjudicator missed was a consideration of whether it was possible for Ms. Saadi to comply with the dress code without compromising her reli- gious requirements. There was nothing about Ms. Saadi's rel1g1on that required her to wear the particular form of hijab she was wearing _on the day in question . If it was possib le for her to wear a religiously acceptable form of hijab that was fully consistent with the dress code (as indeed she had done every day for six weeks), her relig ious rights were not affected. All that was affected was her sense of style, which apparently was in conflict with that of her employer.

[87] Similarly, certain types of apparel that would not con- stitute a "modest" form of dress might be permitted by the dress code (such as a sleeveless blouse under a jacket). However, Ms. Saad1 was not required to wear a sleeveless blouse in order to comply with the dress code. She could comply with both the dress code and her religious require- ments by wearing a long-sleeved garment, provided it was suitably p rofessional in appearance. If she chose, for exam- ple, to wear a battered old sweatshirt and baggy flannelette

Paragraphs 88 - 98

pants, the requirements of her relig ion would like!y be met, but surely her employer could legitimately compla1.n that this was not su itable attire for a professional office environment.

(88] The adjudicator in .this case_ made an irrational _deci- sion by concluding that d.1scnminat1on had been established any time an item of clothing was questioned and _that ~lath­ ing complied with the requirements of the complainants reli- gion. He ought to have considered whether the dress code, or the employer's enforcement or interpretation of 1t, con- flicted with what the employee was required to wear as part of her religion. He did not consider that issue, and reache_d a conclusion that is not logically supportable .. Therefore, his decision is patently unreasonable as a question of fact and a question of law.

v. May 16, 2008, Meeting with the Complainant - Procedural Duty to Accommodate

[89] The adjudicator held that the manner in which the em- ployer conducted the May 16, 2008, meeting to discuss M~. Saadi's attire was itself d1scrim1natory. The adjudicators finding of discrimination based on the breach of a. proce- dural duty to accommodate rested on two found points: ( 1) the employer adopted a "corrective" approach, rather than a "collaborative" approach, to what were "clearly accommo- dation issues"; and (2) the presence of Mr. Barnett at the meeting.

[90] On the first point, the adjudicator provided no analy- sis as to what was corrective or disciplinary about the meet- ing, nor did he address whether from the _employer's per- spective this was "clearly" an accommodation issue. There is no indication as to what would constitute an acceptab ly "collaborative" approach, or how the employer departed from that standard. Indeed, there is no discussion at all as to the tone of the meeting, or what was said . There is simply a bald conclusion that the meeting was corrective and there- fore discriminatory. That is a patently unreasonable conclu - sion, both in fac t and in law, and does not comply with the Tribunal's obligation to provide adequate reasons to support its decision.

[91] The adjudicator took great exception to the presence of Mr. Barnett at the meeting, who he described as a mere office neighbour. He appears to have rejected the evidence of Ms. Telfer about Mr. Barnett's close connection to Audmax and her reliance on him for advice, including on personnel issues. No reasons are provided for rejecting her evidence. This error is compounded by the fact that the employer was unfairly deprived of Mr. Barnett's evidence on this issue.

[92) The adjudicator was particu larly critical of the em- ployer's decision to permit a man to be present at a meeting to discuss Ms. Saadi's style of dress, which he said con- tributed to the discrimination by failing to consider her needs and sensitivities as an observant Muslim woman. Fur- ther, he held that while his finding of discrimination in this re- gard was based on the intersecting grounds of sex and creed, he would have come to the same conclusion on the ground of sex alone. He stated [at § 77] , "No woman in these specific circumstances, regardless of her level of reli- gious observance or of what faith, should be subjected to this form of disciplinary meeting".

Audmax Inc. v. Ontario (Human Rights Tribunal)

(93] To the extent this represents a finding that the partici- p ation of a man in any meeting about a fei:iale e.fl'.Ployee's attire constitutes sex discrimination, I find this dec1s1on to be patently unreasonable. If there were particular s~nsiti vities involving this employee or the issues that were discussed, they are not disclosed in the reasons. On its face, _a discus- sion about what constitutes proper business attire 1s not one that would require the exclusion of the opposite sex.

vi. Grounds for Termination of Employment

[94] On June 3, 2008, prior to the expiry of her probation p eriod, Ms. Saadi was advised that she was being dis- missed d ue to a lack of "organizational fit". The adjudicator foun d that Ms. Saadi's ethnic and/or re ligious background was a contributing factor in her termination._ His reasoni~g was based on two findings: (1) that Ms. Saad1 had been dis- criminated against during her employment with respect _to the enforcement of the microwave policy, the manner of dis- cipline and the style of hijab; and (2) that the emp_loyer had failed to prove its allegations supporting its d ec1s1on to ter- minate her employment.

[95] I have already dealt with the findings of discrimination during the cou rse of the employment. In my view, those find- ings are patently unreasonable and unsupported by ade- quate reasons, and cannot stand.

[96) Much therefore depends on whether the employer has established non-discriminatory grounds for term1nat1ng Ms. Saadi's em ployment. Ms. Telfer acknowledged that Ms. Saadi was being subjected to heightened supervision and scrutiny in the workplace. She testified that this_ was _be- cause of suspicious behaviour by Ms. Saad1, 1nclud1ng: missing files; secretive cell phone use in the office; and unauthorized intrusions into other peop le's desks.

[97) The adjudicator found that the employer ~ad _failed to prove these allegations upon whic h the term1nat1on was based. It follows that he must not have accepted Ms. Telle r's evidence on these poi nts, although he provides no reasons for rejecting her evidence. The adjud icator refers t_o a lack of particularity and supporting documentation prior to the hearing, but these concerns would form the basis for ex- cluding evidence or ordering product_ion , and would not provide a basis for rejecting swor~ testimony. The onl~ rea- son the adjudicator provides for re1ect1ng the employers po- sition is found at§ 82, as follows :

... At the hearing, the [employer] failed to produce two key witnesses, Paul Barnett and Margaret Andoseh, whose evidence would have been critical to establishing that the [employer's] suspicions about [Ms . Saadi] were well founded. I must draw a negative inference from the failure of these witnesses to testify and therefore con- clude that the suspicions about [Ms . Saadi] are un- QIQYfill [Emphasis added.]

[98] There is no indication that Ms. Telfer, a_s a_ lay person. was aware or had been advised that the adjudicator might draw an adverse inference from her unexplained failu re to call Ms. Andoseh as a witness. However, it is worth noting that Ms. Andoseh had originally been named as a personal respondent to the complaint of discrimination and was on

D/47

Paragraphs 99 - 106 CANADIAN HUMAN RIGHTS REPORTER 72 C.H.R.R.

the list as an expected witness for the respondents. Shortly before the hearing, Ms. Saadi dropped the complaint against Ms. Andoseh. She was not then called as a witness by the other respondents. Caution should be exercised be- fore placing too much weight on an adverse inference drawn in these circumstances .

[99] Drawing an adverse inference with respect to the fail- ure of Mr. Barnett to testify is particularly problematic. Mr. Barnett was on the witness list. He was willing to testify, and there is every reason to believe he would have testified if he had not been called away unexpectedly on a fami ly emer- gency. An explanation was provided for his absence. Aud- max attempted to provide his evidence in writing, which was refused by the adjudicator and no other option for obtaining his evidence was raised by the adjudicator. It is incorrect in law, and patently unreasonable on the facts, to draw an ad- verse inference in this situation. An adverse inference is ap- propriately drawn when one would expect a witness to be called and where it is reasonable to infer that the failure to call him is based on the likelihood that his testimony would be unfavourable. In this case, an explanation was provided for Mr. Barnett's absence, and there was no reason given for not accepting that. Further, given the written summary of Mr. Barnett's proposed evidence, there was every reason to be- lieve his evidence would be supportive of, rather than un- favourable to, the position taken by the employer.

[100] Because the adverse inference with respect to Mr. Barnett was so p ivotal to the adjudicator's conclusion that Ms. Saadi's dismissal was discriminatory, the decision is not supportable. I find it is patently unreasonable. Further, -the way in which the adjudicator treated the absence of Mr. Bar- nett on this key issue compounds his initial breach of natural justice in proceeding with the hearing without provid ing op- tions to the emp loyer for obtaining Mr. Barnett's testimony.

E. CONCLUSION AND ORDER

[101] There are numerous difficulties with the adjudicator's decision on all key points. Generally speaking, the reasons are inadequate to explai n the conclusions reached as a question of fact or law. It is simply not possible to logically follow the pathway taken by the adjudicator and to deter- mine the reasonableness of the conclusions reached . The reasons therefore cannot be said to allow for appropriate ju- dicial review, nor are they intelligible within the meaning of Dunsmuir.

[102] The breach of procedural fairness with respect to Mr. Barnett's testimony is significant. He was an important witness for the employer due to his key role in the mi- crowave policy and his participation in the two meetings at the heart of the findings of discrimination. Drawing an ad- verse inference from his failure to testify compounds the un- fairness to the employer in this situation.

[ 103] The decision is also flawed in respect of much of the reasoning that is set out. In particular, there is an overall fail - ure to indicate whether discrimination is direct, or based on the adverse impact of a neutral policy, and the test in Meiorin is not properly considered and applied. There is also a com- mon failure to tie the alleged discrimination or discriminatory impact to a prohibited ground of discrimination.

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[ 104] It is necessary to look at these various issues cumu- latively. If taken separately, some might not reach the level of patent unreasonableness required to justify setting aside the entire decision. However, considered cumulatively, I find the decision as a whole is fatally flawed and can only be de- scribed as patently unreasonable. In these circumstances, I would set the decision aside and remit the ·case to the Tri- bunal for a new hearing before a different adjudicator.

[105] In light of that determination, there is no need to deal with the issues related to remedy. Since all the findings of discrimination fall, so too does the remedy.

[106] The applicants are entitled to their costs. I would fix those costs at $10,000, inclusive of HST and disburse- ments, payable by Ms. Saadi.

NOTES

1.

2.

3.

4.

5.

6.

7 .

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

Saadi v. Audmax Inc. (No. 2), 2009 HRTO 1627 [re- ported 68 C.H.R.R. D/442].

Although the motion material refers to a third exhibit (an application form), that aspect of the motion was abandoned.

(1980), 29 O.R. (2d) 513 (C.A).

Entrap v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18 [37 C.H.R.R. D/481] (C.A.).

(

[2008] 1 s.c.R. 190, 2008 sec 9 .

Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at § 57; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 at§ 78-82, 110; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 sec 20 at § 52-53.

See D.J . Mullan, "Recent Developments in Standard of Review", in Canadian Bar Association (Ontario}, Taking the Tribunal to Court: A Practical Guide for Ad- ministrative Law Practitioners (2000) at p. 25.

Dunsmuir, note 5 at § 4 7.

Human Rights Code Amendment Act, 2006, S.O. 2006, c. 30.

Human Rights Code, R.S.O . 1990, c. H.1 9.

Canada (Citizenship and Immigration) v. Khosa, [2009] 1 s.c.R. 339, 2009 sec 12.

Toronto (City) Police Service v. Phipps, 2010 ONSC 3884 [reported 71 C.H.R.R. D/168] (Div.Ct.).

R. v. Owen, [2003] 1 S.C .R. 779 at§ 32.

Administrative Tribunals Act, S.B.C. 2004, c. 45 , s. 58(2)(a).

Dunsmuir, note 5 at § 41 - 42 , cited in Shaw v. Phipps, note 12 at§ 39.

Mills v. Ontario (Workplace Safety and Insurance Ap- peals Tribunal) (2008), 168 A.C .W.S. (3d} 679, 2008 ONCA436.

London (City) v. Ayerswood Development Corp. (2002), 167 0.A.C. 120 at§ 10 (C.A.); Razack v. On-

tario (Human Rights Commission) (2007), 231 O.A.C. 58 [CHRR Doc. 07-707] at§ 16 (Div.Ct.).

18. 2010 ONCA 752 .

19. Kainz v. Potter (2006}, 33 R.F.L. (6th) 62 at§ 65 (Ont. S.C.); see also Cicciarella v. Cicciarella, [2009] 0.J. No. 2906 (OL), 72 R.F.L. (6th) 319 at§ 35-45 (Div.Ct. ).

20. Toronto Dominion Bank v. Hylton, supra, note 18 at§ 38 .

21. Kalin v. Ontario College of Teachers (2005), 75 O.R. (3d) 523 at§ 30-39 (Div.Ct.); Igbinosun v. Law Society of Upper Canada (2009), 96 O.R (3d) 138, 2009 ONCA 484 at § 34-49.

22. This issue is discussed below under the heading "Grounds for Termination of Employment".

23. See below under the title "Grounds for Termination of Employment" for further analysis of this issue.

Mcintosh v. Metro Aluminum Products Ltd.

24 . British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 [35 C.H.R .R. D/257] ("Meiorin") .

25 . Chauhan v. Norkam Seniors Housing Cooperative Assn., 2004 BCHRT 262 [reported 51 C.H.R.R. D/126] at§ 126.

26. R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 sec 26: Gray v. Ontario (Disability Support Program, Director) (2002). 59 O.R. (3d) 364 (C.A.).

27. (2010}, 99 O.R. (3d) 1, 2010 ONCA 193 at§ 60- 92.

28. (1893), 6 R. 67 (H.L.). See also R. v. Hall, 2010 ONCA 421 at§ 18: "The rule in Browne v. Dunn is a rule of fairness: if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the wit- ness must be given an opportunity to address the contradictory evidence".

C A N A D A N

C. H. R. R. BRITISH COLUMBIA

SEXUAL HARASSMENT Indexed as: Mcintosh v. Metro Aluminum Products Ltd.

HUMAN RIGHTS REPORTER

CHRR Doc. 11-0034

Lisa Mcintosh Complainant

v.

Metro Aluminum Products Ltd. and Zbigniew Augustynowicz

Respondents

Date of Decision: February 15, 2011

Before: British Columbia Human Rights Tribunal, Enid Marion

File No.: 6858

Appearances by:

Fred Wynne, Counse l for the Complainant

David Sutherland, Counsel for the Respondent

SEXUAL HARASSMENT - sexual advances by employer - verbal abuse and denigration - definition of sexual harassment and unwelcome - COMMUNICATIONS - text messages - PROCEDURE - adjournment due to

Cited: (2011), 72 C.H.R.R. D/49, 2011BCHRT34

Paragraphs 1 - 183

respondent's poor health - EVIDENCE - credibility - DAMAGES - expenses caused by contravention of hu- man rights legislation - injury to dignity and self-re- spect - wages - lack of mitigation reduces award - COSTS - improper conduct of respondents

Summary: The B.C. Human Rights Tribunal ruled that Metro Aluminum Products Ltd. ("Metro'') and Zbigniew Au- gustynowicz, the owner, were liable for the sexual harassment that Lisa Mcintosh experienced as an employee.

Ms. Mcintosh alleged that she was subjected to ongoing sexual harassment through unwanted text messages from Mr. Au- gustynowicz between June and September 2008, which ulti- mately caused her to leave her position. The respondents did not deny the text messages, but claimed that Ms. Mcintosh con- sented to, and participated in all such communications.

Metro manufactures and sells aluminum framed windows and doors. It has an office and a production shop and employs be- tween 15 and 18 people. Ms. Mcintosh is 40 years old with two adult children. She started work as a delivery driver at Metro in February 2008. She liked her job and worked 8 a.m. to 4 p.m. every weekday, as well as lots of overtime. Ms. Mcintosh and Mr. Augustynowicz began a consensual sexual relationship.

D/49