In a decision released May 27, 2015, the Divisional Court has dismissed the applications for judicial review in de Lottinville and Kodama, matters in which the OHRC intervened.
Other intervenors in OPP v. de Lottinville included the African Canadian Legal Clinic, Metro Toronto Chinese & Southeast Asian Legal Clinic, the South Asian Legal Clinic of Ontario, and the Office of the Independent Police Review Director. Intervenors in Kodama v. K.M. included the HIV and Aids Legal Clinic of Ontario (HALCO) and the Mental Health Legal Committee (MHLC). The applicants in the two matters were represented by the Human Rights Legal Support Centre.
The Court noted at the outset of its decision that while finality, judicial economy and consistency are important ingredients of a fair legal system, so is the need to ensure that justice is done in a particular case. In other words, the Court rejected the argument, central to the case of both applicants for judicial review, that the Tribunal could make a determination of the s. 45.1 motions before it without considering the application of the Supreme Court of Canada’s decision in Penner. It held that on the issues that both Applications had in common, the Tribunal had reasonably exercised its discretion based upon the fairness considerations set out by the Supreme Court in Penner.
de Lottinville had brought an application to the Tribunal alleging discrimination based upon race by the police. The facts underlying the human rights application had formed the basis of a complaint under the Police Services Act. The OPP investigated his compliant and concluded that the allegations of police misconduct were not substantiated; the conclusion was confirmed by the Ontario Civilian Police Commission. The OPP requested that the Tribunal dismiss de Lottinville’s application pursuant to s. 45.1 of the Code.
K.M. brought an application to the Tribunal alleging that Dr. Kodama has discriminated against him in the provision of medical services. Prior to the application, he had complained to the College of Physicians and Surgeons. The College Committee considering the matter (the IPRC) did not refer the matter on for a hearing, although it did issue a caution to Dr. Kodama. As in de Lottinville, the respondent brought a request to dismiss, and that request was also denied by the Tribunal.
The Court rejected the arguments of the applicants OPP and Kodama on all scores. Its key findings are as follows.
On the standard of review, it disagreed that the appropriate test was ‘correctness’. In doing so, it expressed its disagreement with its reasoning in the Trozzi case to the contrary.
It disagreed with the argument that the Tribunal should have looked only to the decision of the Supreme Court in Figliola for guidance, finding the Tribunal’s three reasons for not doing so to be reasonable. Figliola itself made clear that in applying a section like s. 45.1, the tribunal had to consider the common law finality doctrines – doctrines that include consideration of fairness. There was no reason that fairness should be any less a consideration in administrative proceedings than in judicial proceedings. Nor should individuals be deterred from bringing complaints to regulatory bodies, or penalized when they have done so by being barred access to human rights proceedings considering, in particular, the fact that vulnerable and marginalized individuals may have less access to legal advice.
The Court rejected the argument that the Tribunal fettered its discretion in dealing with the police complaints cases before it; the Tribunal did not say, the Court held, that prior PSA proceedings could never be the basis of a s. 45.1 application.
The Court also rejected the argument that the Tribunal placed too much reliance on the inability of the PSA procedures to provide a remedy. On this matter, the OPP had argued that in the event that a finding of misconduct was made under the PSA, the matter could then be referred to the Tribunal for a hearing into remedy. It accepted the argument that the Tribunal could not be faulted for its failure to consider a non-existent alternative, and further, that the Tribunal had no jurisdiction to grant a remedy where it had not first determined that a right under the Code was infringed.
With respect to the Kodama application, the Court rejected the argument that the Tribunal had conducted a technical review of another statutory body’s decision. The IPRC had determined that there was no intention to discriminate. The distinction between discrimination and intentional discrimination, the Court held, was no small matter. It could not be said that the Tribunal was unreasonable in deciding that the IPRC had not dealt with the substance of the matter.
To conclude, the Court found that the Tribunal’s reasons for decision in both cases met the test of reasonableness.