Rarotonga, 2010

simonshields@isthatlegal.ca

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Case Note: Mohmand v. Human Rights Tribunal of Ontario and Ultimate Currency Exchange
In Mohmand v. Human Rights Tribunal of Ontario and Ultimate Currency Exchange (Div Ct, 2021) the Divisional Court issued their decision on a judicial review application by an HRTO applicant. The HRTO issued a 'NOID' (Notice of Intent to Dismiss) on the basis that the respondent "appeared to be a federally regulated employer or service provider", it gave the applicant 30 days to respond or else have their application dismissed. The applicant did not respond to that (and so the HRTO application was dismissed), but filed a similar application with the federal CHRC which was also dismissed on 31 October 2019 because "it could not hear the complaint because UCE was a provincially regulated entity under the constitution" - the precise opposite to what the applicant had been told by the HRTO. The Divisional Court reviewed the procedural steps taken by the HRTO (which were consistent with policy and rules) and supported the HRTO's procedure as "reasonable", thus dismissing the judicial review application.

I couldn't read this case without thinking, and then voicing outloud: "outrageous, outrageous" to myself. The Divisional Court made much of the fact that the HRTO was an expert tribunal - and that 'NOID' issuance was not a decision, but rather "an opportunity to make submissions on the jurisdiction issue" [para 22]. There were other justifications by the court but to me, the idea that an applicant could face such plainly contradictory outcomes from the two bodies charged with administering the two human rights statutes - and then to have the dismissal of their application found to be "reasonable" by a reviewing court is just shocking. I can't recall that I've had a similar reaction to a case for years before this.


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