While more often than not the Human Rights Tribunal of Ontario’s decisions are not challenged, there are two processes by which this may be done. The first is called a request for reconsideration. The second is an application for judicial review. The latter was the case in Big Inc. v. Islam, 2015 ONSC 2921. On April 28, 2015, Big Inc. challenged the Tribunal decision at the Divisional Court, a branch of the Ontario Superior Court of Justice (Court). Did the Tribunal make an error in law that would justify the Tribunal decision being altered or set aside?
In late December 2013, the respondents, Big Inc. cob Le Papillon on the Park, and Danielle Bigue, were found to have discriminated against the applicants, three restaurant workers, Malik, Hosain and Islam, who were awarded remedies totaling almost $100,000. The applicants self-identify as Muslim. Their human rights application alleged discrimination based on race, colour, ancestry, place of origin, ethnic origin and creed.
In the course of the four-day hearing, eleven witnesses were called. Allegations ranged from the applicants being forced to taste foods that were contrary to their religion to the respondents failing to investigate allegations of human rights violations.
Following the Tribunal decision, Big Inc. filed an application for judicial review requesting the Divisional Court review the decision made by the Human Rights Tribunal. A summary of Big Inc.’s reasons for the review were as follows:
- The Tribunal made unreasonable findings of fact, particularly because it applied a more exacting level of scrutiny to the witnesses called by the applicants as compared to the level of scrutiny applied to the witnesses called by the respondents;
- The Tribunal erred in its treatment of s.45.1 of the Code;
- The Tribunal erred in not considering unsworn willsay statements that had been filed by the applicants.
Differing level of scrutiny
In regard to the allegation of a differing level of scrutiny, the applicants (Big Inc.) argued that the Tribunal accorded a different level of scrutiny to the evidence given by the applicant’s witness as compared to the level of scrutiny accorded to the respondents’ witnesses. The Divisional Court noted that for the argument to succeed in a case such as this, the applicant must show that it has effectively been denied natural justice or has received an unfair hearing. After carefully reviewing the fact-finding process of the Tribunal, the court was not satisfied that the Tribunal’s decision and decision-making process were unfair.
Did the Tribunal err in its treatment of s.45.1 of the Code?
 Section 45.1 of the Code provides as follows:
The applicants claimed that Mr. Malik had filed his human rights application and had filed a claim for employment insurance, as well as a claim for termination pay and severance pay pursuant to the Employment Standards Act. The Employment Standard Officer ruled that Mr. Malik had voluntarily given up his employment and was not terminated, while the application for review before the Ontario Labour Relations Board was abandoned.  The applicants claimed that Mr. Malik’s complaint had been appropriately dealt with by the ESA officer and the application should have been dismissed. 
The Divisional Court refused to accept this argument as it had not been raised or pursued before the Tribunal.
The willsay statements
The applicants took issue with the fact that certain will say statements were not considered in the Tribunal’s decision. The Tribunal indicated that will say statements provide an outline of what will be said. If the witnesses were not called, it would have been inappropriate for the Tribunal to have given the willsay statements any consideration.
After addressing each of the three issues in detail, the Divisional Court concluded that the Tribunal’s decision is reasonable and without grounds to set it aside.
The applicants were ordered to pay the respondents their costs of the application in the amount of $7,500. Big Inc. v. Islam underscores the bottom line for employers that a breach of the Code can be costly at the Tribunal, as well as subsequent proceedings.
Kevin Sambrano is a human rights paralegal practicing in Toronto. Do you have a human rights issue we can help you with? Contact Sambrano Legal today at 647 860 8339 or through the contact link for a free consultation. Or you may visit www.sambranolegal.com
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 Big Inc. v. Islam, 2015 ONSC 2921, para. 6
 Ibid., para. 15
 Ibid., para. 18
 Ibid., para.
 Ibid., para.