December 5, 2021

By Brian Babcock

If an administrative tribunal makes a decision against you that makes no sense to you, go not give up right away. It may be possible to go to court and have it overturned. An administrative tribunal, in order to make a decision which will withstand judicial review, must make its findings based on a substantive, coherent and complete chain of analysis.

So says the Ontario Divisional Court in Imperial Oil Limited v. Haseeb, as judges work through the application of the restatement of the standard of review by the Supreme court of Canada in the landmark case of Canada (Minister of Citizenship and Immigration) v. Vavilov.

Vavilov, at its most simplistic, says that there are only two standards of review – correctness on limited issues, and reasonableness for everything else. But it also goes on to talk about how courts determine reasonableness. It is easy to overlook this aspect of the decision.

We have looked at “what is reasonableness?” generally in an earlier article.

It is clear that “reasonableness” is a standard of deference, which means that even if the court believes that the decision is wrong, it is not overturned unless it is necessary to do so to safeguard the legality, rationality and fairness of the process. The idea is that tribunals are created for lots of reasons – efficiency and expertise among them – and allowing easy review defeats those purposes. So in some cases, even if you decision maker got it wrong, you just have to learn to live with it. But not always.

Judicial review is not just a rubber stamp. The courts have to hold administrative tribunals accountable – the whole legality, rationality and fairness part.

The Haseeb case is mostly about the rationality part. Rationality, by its meaning, relies upon reasons.

Imperial Oil had a policy to make offers for entry level project managers only to applicants already eligible to work in Canada on a permanent basis. Haseeb was an engineering student, not eligible to work permanently in Canada (not a citizen nor a permanent resident) although he likely was eligible for a five year graduate visa which could lead to permanent status. He thought Imperial Oil’s policy was discriminatory, and took it to the Human Rights Tribunal of Ontario.

The Ontario Human Rights Tribunal (HRTO) agreed with him. Imperial Oil applied for judicial review.

As the court points out, we all discriminate. It is part of life. We pick one person to date over another. We pick one apple over another. Some of us prefer a red car over a blue one. Discrimination is only illegal if it is based on one the “grounds” listed in the Ontario Human Rights Code.

Discrimination based on “citizenship” is an enumerated ground. But “permanent residence status” is not. That creates the neat legal question as to whether it is discrimination to require permanent resident status to be hired.

You might think the answer is simple – “permanent residence status” is not a prohibited ground, so it is not discrimination. The Tribunal decided otherwise.

The Tribunal makes “permanent residence status” a prohibited basis for discrimination, including it in how the Tribunal interprets the prohibited ground of “citizenship”. “Citizenship” is not defined in the Code, likely for good reason – it is pretty clear whether someone is a citizen or not.

But, as the court points out, permanent residency is something different.

So you might think that the court could just apply a standard of correctness, say the tribunal is wrong in law, and move on.

Not so simple. Tribunals often interpret the wording of terms in the law in ways different from their ordinary meaning – what we call a ‘special or particular meaning’. Sometimes that is proper, because an extended meaning is necessary to achieve the purpose of that law. An expert tribunal, like the HRTO, has a better understanding that a generalist court about when that is necessary.

That brings us back to the standard of reasonableness, and the question of rationality. The HRTO is entitled to make a decision the court, Imperial Oil, or you, thinks is wrong, but its reasons must be “transparent, intelligible and justified.”

The HRTO, in its decision, did not discuss WHY the meaning of ‘citizenship’ should have a special or particular meaning in the Code. It did not even appear to assume that was true – through the core of the reasons, the Tribunal used the phrase “citizenship or permanent residency status” as if THAT was the ground of discrimination.  Rather than amending the meaning of the words to accomplish the objective of the law, the Tribunal in effect rewrote the law.

This is not reasonable. It is not “coherent and rational”.

Although the HRTO has a mandate to define basic values and set the boundaries of acceptable behaviour in our society, when it in effect seeks to ‘move the goalposts’ by accepting a novel theory of discrimination, it is especially important that the policy reasons for doing so are fully explored, for public credibility and acceptance of the reasoning. That requires more than assuming that words have an expanded definition.

Right or wrong, this decision could not stand.

By approaching its analysis on the basis of reasonableness, not correctness, the court does us all a favour by clarifying that principle.

Until we hear from a higher court, if that happens.

If you are an employer, the clear takeaway here is that if you lose at the HRTO for what seems like a novel reason, you may want to apply for judicial review. However, this decision, and the review process, are complex and costly issues. It is therefore worth investing in legal advice. You don’t need to be Imperial Oil to find lawyers who can provide that sort of advice. We have them right here in Thunder Bay at Weilers Law.

The more subtle takeaways for employers are:

  • Having your hiring policies drafted or reviewed by lawyers knowledgeable in the Human Rights Code may save you a lot of expense later. Good practices may help you avoid being taken to the Tribunal or judicial reviewed.
  • If an employee files a complaint to the HRTO that just doesn’t seem right to you, talking to a lawyer at Weilers Law about it before you respond to the Tribunal is also a good investment. We can give you an opinion on the merits. advise you if you want to represent yourself at the hearing; or represent you at the hearing – whatever level of involvement you are most comfortable with.

Although Weilers Law primarily represents employers in human rights cases, we also sometimes act for employees, so if you believe that you have been discriminated against, or want representation, contact our office. Even if we have a conflict, or cannot take on your case for any other reason, we might be able to help you find the advice you need.