ADVERTISEMENTS

The Ontario Divisional Court recently sent a strong message to the Human Rights Tribunal (and other administrative tribunals) when it allowed the employer's appeal of the Tribunal's decision in this case. 

In passing, the Court was surprised about the lack of "record" of the evidence before the Tribunal (specifically, the fact that no transcript was available).  Counsel advised the Court "that administrative tribunals often have no transcript or recording of the evidence and submissions they hear and accordingly it is not uncommon for affidavit evidence to be admitted on an appeal to clarify what evidence, issues and submissions were before an administrative tribunal."  The Court commented, with justification, in my view:

Why that should be, in the age of inexpensive portable digital recording devices, is a mystery.

The Court agreed that the Tribunal had properly applied the Meiorin analysis in finding that a prima facie case of discrimination existed and that the employer had failed to show that there were no alternatives that could be implemented without undue hardship.

However, the Court had great concerns about the way that the Tribunal dealt with the remedial portions of the decision.  The Affidavit filed with the Court by someone who was present through the entire hearing stated, unequivocally:

The Tribunal was to provide a separate opportunity to make submissions, according to the Court based on the Affidavit, but never did.  While no formal motion to bifurcate the hearing was made, the employer:

Relying upon the case of Baker v. Canada (Minister of Citizenship and Immigration) the Court held that there was "a duty to hear evidence and offer the opportunity to make submissions on the appropriate outcome, including remedy, in light of the evidence, often referred to as ?natural justice?." 

The Court found that the Tribunal had, in this case, failed to discharge that duty and concluded that this aspect of the case had to be re-heard.  The Court, recognizing that its decision would keep the case alive, urged the parties to engage in mediation to resolve this question.

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