Judicial Review of the Screening Process

As noted above, all jurisdictions apart from Ontario and British Columbia, allow the human rights commission the function of a review of the complaint to determine whether the complaint should proceed to hearing. It is clear that such a decision is a statutory one and may be challenged on judicial review.

That being said, the overriding view is that a court should not “intervene lightly” with such screening decisions. ¹ This, however, presumes that the Commission performed its function in a manner compliant with the statute and that “it did not do so lightly”. The Commission must review the issues raised by the respondent and it must “do its work diligently even at a preliminary stage where only a prima facie screening is required”.

This issue was reviewed recently by the Nova Scotia Supreme Court in a case which was not employment based. It is important, nonetheless, as it provides a modern analysis of the expected standards of the Commission’s initial decision to allow, in this instance, the case to proceed to hearing. ²

The case involved an allegation by the complainant, then a student at the university, had been adversely treated by an article written by a professor due to her identity as an indigenous person. The named respondent was the University and the Society for Academic Freedom and Scholarship, the publisher of the article. The complainants were the Human Rights Commission, and the individual. The moving party on the review application was the University. The Society supported some of its submissions. It was a body independent of the University.

The professor noted his disdain to the University for its conduct in dealing with indigenous issues. He reviewed his specific encounter with a Mi’kmaq student (who he calls “Q”) in his Philosophy of Law class during the winter of 2018. He observed that this person performed poorly in his class, and was likely to receive a failing grade. The applicant was however, allowed a “withdrawal” from the class. The professor was of the view that this student had received preferential treatment. This article came to the attention of the student, resulting in the human rights complaint.

The essential function of the screening process was set out as follows:

Put another way, the Officer’s task was to determine if there was evidence that, if it was accepted, could show at least a prima facie case of discrimination towards Ms. Gould on the part of either or both.

On a broader scale, the Court made it clear that the review process is much more than a “rubber stamp”:

The Commission’s task in making such a decision may be “screening”, but it is not meaningless, nor is it a “rubber stamp’. The parties are entitled to a decision made fairly, carefully, and, dare I say, judiciously. It must take into account all of the important facts and law.

Standard of Review

The accepted standard to review a substantive decision is one of reasonableness. To meet this standard, the decision being reviewed must be “rational” and “logical” and also “justifiable in light of the facts and applicable law”. As stated by the Supreme Court of Canada: ³

[101]   What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it. There is, however, no need for reviewing courts to categorize failures of reasonableness as belonging to one type or the other. Rather, we use these descriptions simply as a convenient way to discuss the types of issues that may show a decision to be unreasonable.

[102]   To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”: Irving Pulp & Paper, at para. 54, citing Newfoundland Nurses, at para. 14. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Ryan, at para. 55; Southam, at para. 56. …

[103]   While, as we indicated earlier (at paras. 89-96), formal reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis: … A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken … or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point …

[104]   Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”.

The Merits of the Substantive Issue

The Court noted that the officer at the outset of her analysis correctly set out the test to be applied to determine whether a prima facie case had been shown:

In order for Gould’s allegations to be substantiated, it needs to be demonstrated that she was treated differentially by SMU and SAFS and that this treatment had the effect of imposing a burden, obligation or disadvantage upon her not imposed upon others, and that the reason for this being imposed upon her was based on her Aboriginal Origin.

The reviewing court then found that the officer failed to address these very issues in her report. The Court further found that the officer considered facts which were not relevant to the issue at hand:

In my view, she did not properly engage with that analysis but rather got distracted with other facts, that were either tangential or entirely non-relevant. As a result, I do not see her conclusions as being reasonable, in the context of the material facts before her and the analysis to be undertaken.

One example was mentioned being the officer’s reference to the history of systemic racism in the province. The Court noted that this certainly led to the need for statutory protections but should not be an impetus of the creation of a prima facie case, as was determined by the officer.

A second reference was noted to the finding that one Mercer, the person responsible for the Society’s publication was also a colleague of the writer in the University. The Court took issue with this factor as relevant to the issue.

With respect to the complaint against the University specifically, the Court noted that there was no evident factual connection between the author of the article and the University:

In relation to the applicant, the Report fails, in my view, to make any connection whatsoever between the applicant and the article. The Report notes, correctly, that the author of the article worked as a professor for the applicant at the time the article was published; and that he mentioned some events from his coursework (relating to Ms. Gould, albeit called “Q”) in the article. What goes unmentioned and unaddressed is the fact that the applicant was not involved in the production or publication of the article in any way. There is no analysis or explanation by the Officer as to how these circumstances engage the applicant as a potential source of discrimination against Ms. Gould.

Further, the report failed to address the fundamental issue of freedom of speech, as raised by the Society.

The Court concluded that the officer’s decision must be set aside:

In the present case, the Officer needed to identify some evidence that the requirements of s. 4 of the Act had, at least possibly or prima facie, been engaged. In my view, she did not identify any such evidence. There was little to no evidence of any “differential treatment” (of Ms. Gould) that was before the Officer. Certainly not from the applicant, and precious little from the Society. There was no evidence of any “burden, obligation or disadvantage imposed upon her not imposed upon others”; certainly none imposed by either the applicant or the Society.

[88]         In my view, as I have noted in the previous paragraphs, the reasons given by the Officer for her recommendation were either irrelevant, erroneous, or insufficient to meet the requirements as referenced in Leon’s (supra). I find no discernable path of logic from the Officer’s reasons to her recommendation. In my view, this Report/Decision does not meet the Vavilov test, and is not a reasonable decision as that term was defined therein. It must be quashed.

In this case, there was no written decision allowing the case to proceed to hearing. The Court reviewed the investigative report to find the reasons.

The decision reflects the need for a coherent, reasoned, logical analysis of the Commission.

👤 About the Author •
📚 Human Rights Index •
🎥 YouTube •
⬆️ Back to Top

1. The Federal Court of Appeal in Canada Post Corp. v. Barrette
2. St. Mary’s University v Nova Scotia Human Rights Commission
3. Canada v. Vavilov 2019 SCC 65