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Human Rights - Administrative Tribunal Jurisdiction. Salim v. Singh
In Salim v. Singh (Div Court, 2024) the Divisional Court allowed an RTA s.210 appeal where the LTB "refused to apply the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”), to determine whether a landlord’s refusal to rent a townhome to a couple with three children was “arbitrary or unreasonable” under s. 95(5)" [Assignment, Subletting and Unauthorized Occupancy - Refusal or non-response].
Here the court confirms that Ontario administrative tribunals have HRC jurisdictions, and usefully sets out the test for establishing 'prima facie discrimination':[2] This was a serious error that requires correction on appeal. The Code is quasi-constitutional legislation that has paramountcy over the RTA: s. 3(4), RTA; s. 47(2), Code; Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, at paras. 33-39. In Tranchemontagne, the Supreme Court of Canada found that Ontario’s tribunals have the jurisdiction to interpret and apply the Code because is it “the law of the people.”
[3] The Preamble to the Code recognizes that it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equality and non-discrimination. The Code gives everyone a right to equal treatment in respect to “occupancy of accommodation,” without discrimination on the basis of seventeen grounds, including age, marital status, and family status. Family status attracts human rights protection because of the family’s unique and imperative role in caregiving.
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[45] In Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 at para. 33, the Supreme Court of Canada articulated the test for discrimination under human rights legislation, stating:As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. [46] This approach was recently applied to the Code by the Court of Appeal for Ontario in Ontario (Health) v. Association of Midwives, 2022 ONCA 458, 161 O.R. (3d) 561, at para. 101. It was also applied to the ground of “family status” under s. 5(1) of the Code in Misetich v. Value Village Stores Inc., 2016 HRTO 1229, at paras. 35-48. While there has been some uncertainty in the case law on this point, in my view, Adjudicator Jennifer Scott took the correct approach in applying the Moore test to the ground of family status in Misetich. It is important to apply a uniform test for discrimination to all protected grounds, including family status.
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What is the proper remedy for discrimination under s. 98(3) of the RTA?
[67] If discrimination is found, the LTB has the discretion to determine the appropriate remedy under s. 98(3). While the remedies must relate to the relationship between the landlord and tenant, the LTB must remain mindful of the primacy of the Code over the RTA, the Code’s quasi-constitutional status, and the importance of protecting families from discrimination in housing. It would seem perverse to allow a landlord to claim a remedy before the RTA after engaging in discrimination, whether or not the person who was discriminated against is before the LTB. There is an important role for the LTB to play in holding landlords who discriminate accountable. This was the takeaway message from the Supreme Court of Canada’s ruling in Tranchemontagne back in 2006.
What is the proper remedy on appeal?
[68] The appeal is allowed, and the matter shall be remitted back to the LTB with the opinion of the Court.
[69] I would also order that the LTB serve a copy of this decision on the Executive Chair of Tribunals Ontario, the Executive Chair of the Human Rights Tribunal of Ontario, and the Chief Commissioner of the Ontario Human Rights Commission. Proof of service shall be filed with the court within 7 days of the release of the decision to the parties. . Lee v. Padathe
In Lee v. Padathe (Div Court, 2023) the Divisional Court considered the treatment of human rights accomodation issues (here, medical factors) by the administrative Landlord and Tenant Board (LTB):[21] Ms. Kallikattumadathil has raised two issues that could be characterized as alleged legal errors and breaches of procedural fairness. The first is that the Board had an obligation to grant her an adjournment as an accommodation for her disability. The second is that the hearing was not under oath and the Board failed to consider the authenticity and admissibility of documents.
[22] In my view, these submissions have little merit. A Board’s denial of an adjournment is a discretionary decision entitled to significant deference unless there is an error of principle. Here, the Board expressly acknowledged its duty to accommodate a litigant with health issues. However, a litigant seeking an accommodation has an initial onus to demonstrate prima facie discrimination before the onus shifts to the Board to accommodate: Bernard Property Maintenance v. Taylor, 2018 ONSC 4390 (Div. Ct.), at para. 43, aff’d 2019 ONCA 830, 148 O.R. (3d) 494. The litigant also has a procedural obligation to request a specific accommodation: Koda Holdings Inc. c/o Domus Inc. v. Gareth D’Costa et al., 2022 ONSC 1865 (Div. Ct.), at paras. 26-29, 47-63. . 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.
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