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Appeal-Judicial Review - Reasons - Ignoring Issues

. Dean v 3150 Hawthorne Road Ltd.

In Dean v 3150 Hawthorne Road Ltd. (Div Court, 2023) the Divisional Court considered a JR brought by an employee against a WSIAT ruling that the respondent employer could not be sued because they were a Schedule 1 employers under the WSIA [pursuant to WSIA s.118(2) and 123]. Here the court considers an allegation that the Tribunal below had ignored evidence:
[31] I begin with the observation that a decision maker need not refer to all of the evidence; it is presumed to have considered it all: Mustapha v. Canada (Citizenship and Immigration), 2022 FC 622, at para. 10; Decision No. 1332/20R, 2022 ONWSIAT 458, at para. 19. The onus of demonstrating that the decision maker failed to consider all of the evidence rests with the applicants. They have not satisfied that onus here because the evidence the applicants allege the Tribunal failed to consider is of such little probative value that it could not, taken alone or in combination, have affected the Tribunal's reasoning process or its outcome. There is thus nothing from which to infer that the Tribunal failed to consider it.
. Young v. College of Nurses of Ontario

In Young v. College of Nurses of Ontario (Div Court, 2022) the Divisional Court allowed judicial review when a tribunal failed to consider the applicant's human rights disability submissions in their reasons:
Was the Decision Pertaining to Ms. Young Unreasonable Because the ICRC Failed to Address Her Submissions Regarding the Ontario Human Rights Code?

[33] For similar reasons, I find that the ICRC’s Decision relating to Ms. Young is unreasonable because the panel of the ICRC did not address Ms. Young’s submissions based on the Human Rights Code.

[34] In her submissions to the ICRC, Ms. Young detailed how her practice at the time of the incidents had been directly and adversely impacted by her mental health disability. Ms. Young submitted medical documentation for the ICRC’s consideration. Ms. Young argued that the Human Rights Code applies to all self-governing professions and in determining the appropriate disposition. She submitted that the circumstances weighed in favour of the ICRC taking no further action.

[35] The Respondent’s position is that Ms. Young’s submissions based on the Human Rights Code were in essence a substantive defence to the allegations of misconduct. The Respondent submits that while the Discipline Committee could consider the legal issue of whether Ms. Young’s mental health disability would exculpate her from a finding of misconduct, the ICRC has no such mandate. The Respondent further submits that applying the Human Rights Code would require that the ICRC make factual findings that Ms. Young suffered from a mental health disability at the time of the incidents and that the disability impacted her work performance such that it excused breaches of her professional obligations.

[36] In addition to the delay and abuse of process issues, Ms. Young’s disability was a central issue raised in her submissions. It is unclear from the reasons whether the ICRC considered Ms. Young’s disability or her submission regarding the Human Rights Code. The reasons refer opaquely to “systemic issues”[1] that might have impacted Ms. Young’s care of patients, but state that she remained “accountable for [her] actions which fell below the standard of care.” What is clear from the reasons is that the ICRC made no mention of the Human Rights Code and failed to “meaningfully grapple” with Ms. Young’s submissions regarding the impact of her disability on the incidents at issue or the appropriate disposition.

[37] The Human Rights Code is quasi-constitutional legislation and is relevant statutory law that acts as a constraint on how and what an administrative decision-maker can lawfully decide: Vavilov, at para. 106. In S.M. v. R.K.A.E., 2011 CanlII 37931 (ON HPARB), the Board found a decision of the ICRC unreasonable because it failed to analyze the complainant’s allegation of discrimination under the Human Rights Code. Although the Board referred to a policy regarding physicians and the Human Rights Code, it was not clear from the reasons how the policy was applied or that the allegation of discrimination was addressed.

[38] Moreover, in College of Nurses v. Trozzi, 2011 ONSC 4614, at 32, this court held that the College’s Registration Committee was required to apply the Human Rights Code when placing terms, conditions and limitations on a nurse’s certificate of registration. I recognize that the mandate and function of the Registration Committee differs significantly from that of the ICRC. However, I have difficulty with the proposition that the ICRC cannot, by virtue of its limited screening function, consider or apply the Human Rights Code. Leaving aside the question of whether the ICRC could consider Ms. Young’s disability as a substantive defence to the allegations of misconduct, I find that once Ms. Young raised her mental health disability in relation to a matter within the ICRC’s mandate, that is, whether some type of remedial action was required, it was incumbent on the ICRC to consider it.

[39] The decision pertaining to Ms. Young is unreasonable because the ICRC failed to apply and consider and address Ms. Young’s submissions based on her disability and the Human Rights Code.
. Young v. College of Nurses of Ontario

In Young v. College of Nurses of Ontario (Div Court, 2022) the Divisional Court allowed judicial reviews because the tribunal's reasons did not assess a party's raised issues, here delay and abuse of process:
[32] As held by this court in Scarborough Health Network v. CUPE, Local 5852, 2020 ONSC 4577, at paras. 14-15, reasons must demonstrate some degree of analysis of the concerns and submissions of the parties because it is only through the reasons that a party can be sure that their submissions were considered. In my view, the failure to deal with the issue of delay in any “meaningful way” renders the decisions unreasonable. See: United Food and Commercial Workers Union, Local 175 v. Copper River Inn and Conference Centre, 2021 ONSC 5058 (Div. Ct.), at para. 39.


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