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Human Rights (Ontario) - Standard of Review. London District Catholic School Board v. Weilgosh
In London District Catholic School Board v. Weilgosh (Div Court, 2024) the Divisional Court considered a JR by a school board against an HRTO interim decision that it had 'concurrent jurisdiction' to hear an HRC-labour matter which had been filed both before the HRTO and the OLRB. This is a furthering of recent convoluted Horrocks (SCC, 2021) doctrine addressing this same issue, setting out a test for exclusive versus concurrent jurisdiction.
Here, the court considered (and granted) a JR standard of review exception, holding that an SOR of 'correctness' applied (as opposed to the typical Vavilov 'reasonableness'). This was due to the 'jurisdictional' nature of the issue (the 'central importance to the legal system' exception was also argued, but not applied):Issue #2: What is the standard of review?
[18] The Applicant submits the presumptive standard of reasonableness is rebutted for two reasons. First, the application concerns a question of the jurisdictional boundaries between two administrative bodies. The Supreme Court applied a correctness standard in Horrocks for a virtually identical question. Second, the question raised is of central importance to a legal system as a whole, given its broad implications for any future applications to the HRTO brought by unionized employees.
[19] The Respondents Weilgosh and OHRC agree with the Applicant on the first point and submit that the presumption of reasonableness is rebutted. However, they disagree that the question raised is one of central importance to the legal system as a whole. They submit that while involving a dispute that is of “wider public concern, it does not rise to the level of having an impact on the administration of justice as a whole that requires safeguarding consistency in the fundamental legal order of Canada.[10]
[20] The HRTO submits that the standard of review is reasonableness. It argues that the presumption of reasonableness is not always rebutted for questions of jurisdiction between two or more administrative bodies unless there is an operational conflict. The HRTO argues that there is no conflict or incompatibility in this case since we are dealing with concurrent jurisdiction. It points out that in Horrocks, there was no legislated standard of review and therefore the Supreme Court’s finding on standard of review is not dispositive on the issue for this application. The HRTO agrees with Weilgosh and OHRC that the question raised is not one of central importance to the legal system as a whole either since it is statute- and province-specific. Finally, the HRTO argues that something more is required than just the three rule of law questions in order to rebut a legislated (as opposed to a presumptive) standard of review, like the one under s. 45.8 of the Ontario Code (“patently unreasonable” which has been interpreted by the courts post-Vavilov as “reasonable”). It argues that to rule otherwise conflicts with Vavilov’s strong endorsement of respect for legislative intent.
Correctness is the appropriate standard of review
[21] In Horrocks, at paragraph 7 of the Majority Decision, the Court stated:Decisions concerning the jurisdictional lines between two or more administrative bodies must be correct (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 53). This standard safeguards the rule of law, which “requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another” (para. 64). It also fosters predictability, finality and certainty in the law (ibid.). [22] The Court in Horrocks gave no consideration to and did not rely on there being no legislated standard of review in Manitoba’s Human Rights Code[11]. Instead, it determined that correctness was the appropriate standard of review based on the matter concerning the jurisdictional boundaries between two administrative bodies. In view of the Supreme Court’s application of the correctness standard in Horrocks for a virtually identical question[12], the correctness standard is the appropriate standard of review. . Yan v. 30 Forensic Engineering Inc.
In Yan v. 30 Forensic Engineering Inc. (Div Court, 2023) the Divisional Court considered the SOR for a JR of an HRTO dismissal:[27] The parties agree that the standard of review for decisions of the HRTO is reasonableness. The review of a decision from the HRTO should be afforded the highest degree of deference with respect to the HRTO’s interpretation and the application of human rights law. Deference is owed because of the HRTO’s specialized expertise (Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, 161 O.R. (3d) 561 and Shaw v. Phipps, 2012 ONCA 155, 289 O.A.C. 163). . Chen v. Western University
In Chen v. Western University (Div Court, 2022) the Divisional Court (once again) addressed the standard of review for a judicial review under HRC s.45.8:[23] There has for some time been a controversy over the standard of review applicable to decisions of the HRTO. The Human Rights Code includes a privative clause:45.8 Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject 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.[Emphasis added] [24] The HRTO has argued that this clause is the imposition of a statutory standard of review and that, as a result, the appliable standard is the one referred to in this clause being “patent unreasonableness”.
[25] In December 2006, significant amendments were made to the Human Rights Code[25]. These amendments clarified that the HRTO is a specialized tribunal responsible to resolve human rights complaints. The amendments removed the right of appeal and added s. 45.8, the privative clause quoted above. With the release of Dunsmuir v. New Brunswick[26] which served to reduce what had been three standards of review (correctness, reasonableness and patently unreasonable) to only two (correctness and reasonableness) the standard of review in matters concerning the Human Rights Code was understood to be reasonableness. This was the finding made in Shaw v. Phipps[27]. While the reasonableness standard does not exist on a spectrum or continuum, it takes its colour from the context within which it applies. This means that the range of possible and acceptable outcomes expands or contracts depending on factors such as whether there is a privative clause, the nature of the question, and the decision-maker’s purpose and expertise.
[26] In the interim the Supreme Court of Canada released its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov[28] which determined that “reasonableness” is the presumptive standard of review for judicial review. There are exceptions where required by “clear indication of legislative intent or by rule of law”.[29] Vavilov reaffirmed the importance of legislative intent when determining the applicable standard of review, describing legislative intent as the “polar star” of judicial review.[30] On this foundation the HRTO, in a broad array of cases, submitted that Vavilov served to override the finding in Shaw v. Phipps and that s. 45.8 of the Human Rights Code should be understood as an expression of legislative intent concerning the standard of review to be applied to decisions of the HRTO. These submissions called on the courts to reintroduce and accept patently unreasonable as the standard of review. The Court of Appeal recently dealt with the issue in Ontario (Health) v. Association of Ontario Midwives.[31] The decision was released on June 13, 2022. The Court of Appeal undertook a review of the decision of the Divisional Court in Shaw v. Phipps. It noted that the analysis recognized that the legislature intended that the highest degree of deference was to be accorded to the decisions of the HRTO, its “determination of facts, its interpretation and application of human rights law, and decisions on remedy.”[32] The Court of Appeal accepted that:…the assimilation of patent unreasonableness to reasonableness does no violence to legislative intent[33] and concluded that:... the Divisional Court’s approach to the interpretation of s. 45.8 in Shaw v. Phipps is entirely consistent with Vavilov. The Divisional Court in Shaw v. Phipps did exactly what Vavilov instructs us to do now.[34] [27] The Court of Appeal confirmed that the standard of review of the decisions of the HRTO is reasonableness, now informed by the guidance provided in Vavilov.[35] . Ontario (Health) v. Association of Ontario Midwives
In Ontario (Health) v. Association of Ontario Midwives (Ont CA, 2022) the Court of Appeal considered the judicial review standard of review under HRC s.45.8 [in the statute it's "patent unreasonableness"], and concluded that it was normal Vavilov 'reasonableness' [paras 44-83].
. Empower Simcoe v. JL
In Empower Simcoe v. JL (Div Court, 2022) the Divisional Court stated the standard of review for judicial review of HRTO tribunal cases, despite the "patent unreasonableness" statutory standard:[20] Counsel for Empower Simcoe and JL agree that the standard of review to be applied is one of reasonableness in accordance with the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”). Although counsel for the HRTO in detailed submissions argues that “patent unreasonableness” should apply, this Court has held that this standard amounts to a reasonableness assessment (see: Shaw v. Phipps, 2010 ONSC 3884 (Div. Ct.); Pereira v. Hamilton Police Services Board, 2022 ONSC 4150 (Div. Ct.); Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458). . Ingram v. Human Rights Tribunal of Ontario
In Ingram v. Human Rights Tribunal of Ontario (Div Court, 2022) the Divisional Court considered the statutory judicial review 'standard of review' "patent unreasonableness":i. Appropriate Standard of Review
[28] Mr. Ingram asserts that the appropriate standard of review to be applied in this matter is reasonableness. He cites the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 441 D.L.R. (4th) 1.
[29] The respondents, HRTO and Cayne’s, both submit that the test is whether the decision of the Tribunal was patently unreasonable, as prescribed in s. 45.8 of the Code, which provides as follows:Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject 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. [30] Both respondents provided a detailed analysis in their respective factums as to why the proper test should be patent unreasonableness. However, given the Court of Appeal’s recent decision in Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, at para. 83, the applicable standard of review is reasonableness. . Nagy v. University of Ottawa
In Nagy v. University of Ottawa (Div Court, 2022) the Divisional Court considered the statutory HRC judicial review standard of review of 'patent unreasonableness':Reasonableness or patent unreasonableness?
[14] Which deferential standard applies? In Phipps v. Toronto Police Services Board, 2010 ONSC 3884 this court held that the standard of review of decisions of the Human Rights Tribunal was reasonableness. That decision was upheld by the Court of Appeal (2012 ONCA 155 at para. 10). In Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632 and Ontario v. Association of Ontario Midwives, 2020 ONSC 2839 this court held that Vavilov had not changed that. In my view, we are obliged to follow our own jurisprudence until a higher court rules otherwise.
[15] I note only that as the Supreme Court said in Vavilov (paragraph 42), it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough. . Moore v. The Estate of Lou Ferro et al
In Moore v. The Estate of Lou Ferro et al (Div Ct, 2022) the Divisional Court considered the statutory 'patent unreasonableness' standard of review for judicial review [under HRC 45.8]:Is the Test Patent Unreasonableness?
[66] The HRTO submitted that since the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 441 D.L.R. (4th) 1 (“Vavilov”), the appropriate standard of review to be applied to Tribunal decisions is that set out by the legislature, namely, patent unreasonableness. This court has already addressed this submission in a number of cases and has found that the standard of review remains reasonableness. The HRTO argued that a more recent decision of the Court of Appeal lent support to its view that the applicable standard of review was reasonableness. My colleague, Sachs J. addressed this issue in her dissent (not on this point) in the matter of Imperial Oil Limited v. Muhammad Haseeb and the Human Rights Tribunal of Ontario, 2021 ONSC 3868 where she stated, at para 51:The HRTO appeared primarily for the purpose of making submissions on the standard of review. According to the HRTO, the Court of Appeal’s recent decision in Longueépée v. University of Waterloo, 2020 ONCA 830, lends support to its view that the applicable standard of review is patent unreasonableness. In Longueépée, the Court of Appeal found that the decision it was reviewing was both unreasonable and patently unreasonable. In view of this, the Court stated at para. 10 that “[i]t is both unnecessary and unwise in this appeal to determine whether, post-Vavilov, decisions of the HRTO are subject to a ‘patent unreasonableness’ standard of review, and indeed whether, in this context, a review for ‘patent unreasonableness’ is something different from a ‘reasonableness’ review.” [67] I find that the appropriate standard of review to be applied is reasonableness. . Zheng v. G4S Secure Solutions (Canada) Ltd
In Zheng v. G4S Secure Solutions (Canada) Ltd (Div Ct, 2021) the Divisional Court considered a judicial review application regarding an Ontario HR matter. In this extract it considers the s.45.8 HRC standard of review for judicial reviews:[26] The applicable standard of review is of particular concern to the Human Rights Tribunal. In its Factum it refers to and relies on s. 45.8 of the Ontario Human Rights Code:Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject 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.[4]
[Emphasis added] [27] This is contrary to the direction found in Dunsmuir v. New Brunswick which sought to simplify the issue of the standard of review. It reduced the available options from three to two: correctness and reasonableness. “Patent unreasonableness” was found to be unnecessary:The current approach to judicial review involves three standards of review, which range from correctness, where no deference is shown, to patent unreasonableness, which is most deferential to the decision maker, the standard of reasonableness simpliciter lying, theoretically, in the middle. In our view, it is necessary to reconsider both the number and definitions of the various standards of review, and the analytical process employed to determine which standard applies in a given situation. We conclude that there ought to be two standards of review — correctness and reasonableness.[8] [28] The Tribunal quotes Canada (Minister of Citizenship and Immigration) v. Vavilov as providing further guidance on this issue. Having determined that reasonableness is the presumptive standard of review, Vavilov held:…that the presumption of reasonableness review can be rebutted “where the legislature explicitly provides the applicable standard of review.”[9] [29] Here and elsewhere, the Human Rights tribunal of Ontario has sought to rely on this statement to revive patent unreasonableness as the standard of review that should apply to it. In doing so, in this case, it seeks to rely, in part, on cases which predate the amendments to the Human Rights Code (2008) and Dunsmuir[10] as well as more recent cases, but from other provinces, one from British Columbia and another from Alberta.[11]
[30] As for cases from Ontario, the Factum of the Human Rights Tribunal refers to Shaw v. Phipps which came after the amendments to the Code and Dunsmuir but before Vavilov. It does not uphold “patent unreasonableness” as the standard. Rather it refers to “the highest degree of deference” being accorded to decisions of the Tribunal but discusses this in terms of a reasonableness standard:Therefore, reading the words of s. 45.8 of the Code purposively and in light of general principles of administrative law, it would follow that 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 and application of human rights law, where the Tribunal has a specialized expertise.
With respect to the present applications for judicial review, a high degree of deference is therefore to be accorded to the Tribunal's determination whether there has been discrimination under the Code and what the appropriate remedy should be, given that these are questions within the specialized expertise of the Tribunal. In other words, the decisions on liability and on remedy must be respected unless they are not rationally supported — in other words, they are unreasonable.[12] [31] What the Factum does not refer to is that the Tribunal has, since Vavilov, consistently taken the position that “patent unreasonableness” is the applicable standard and this Court has rejected that submission. In Intercounty Tennis Association v. Human Rights Tribunal of Ontario[13] the Divisional Court considered and accounted for both Dunsmuir and Shaw v. Phipps. It noted that: “All counsel on this application, except for counsel for the Tribunal, agree that “reasonableness” continues to be the appropriate standard of review for the Tribunal’s decisions”.[14] The Court went on to say: “The issue I must determine is whether, as the Tribunal asserts, Vavilov has overruled this principle.” [15] The Court reasoned and concluded that:Nowhere in Vavilov does the Court identify the merger of the reasonableness and patent unreasonableness standards as being one of the features of Dunsmuir that it is seeking to revise. Furthermore, to reintroduce the distinction would be contrary to the Court’s stated purpose in Vavilov – to clarify and simplify the law of judicial review. Reintroducing what the Court has already called a “meaningless” distinction that caused confusion would run counter to this aim.
Furthermore, in the section of Vavilov that expands on legislated standards of review, the Court ends its discussion with the following statement at para. 35:We continue to be of the view that where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law. As set out above, returning to an era where “patent unreasonableness” is given a meaning beyond “reasonableness” does raise rule of law concerns – namely, the fact that an irrational decision is allowed to stand because its irrationality is not “clear” or “obvious” enough.
For these reasons I find that the words “patent unreasonableness” in the Code are to be given the meaning ascribed to them in Shaw v. Phipps – namely, reasonableness.[16] [32] This understanding has been taken up and relied on in at least two other decisions of this Court. The issue has not, as of yet been taken up by the Court of Appeal. In Longueépée v. University of Waterloo the issue was raised in that Court but not dealt with:In my view, it is both unwise and unnecessary for the proper disposition of this appeal, to embark on the analysis that the HRTO asks this court to undertake: that is, to determine whether post-Vavilov the statutory standard of review in s. 45.8 of the Code should be given effect, and if so, whether a court’s review of an administrative decision for “patent unreasonableness” would be different from a review for “reasonableness”. It is unwise to do so because these issues should be decided in a case where the standard of review makes a difference to the outcome, and where the parties with a stake in the dispute have joined issue on the point. It is unnecessary in this case because the result would be the same under both standards of review.[17] [33] In that case the resolution of the question would not have affected the overall disposition of the case. The same is true in this one. As will become clear the decisions, both the original decision and the reconsideration, were reasonable. Thus, the distinction between “reasonableness” and “patent unreasonableness” will have no impact on the questions the Court is being asked to consider.
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