Seema Saadi was terminated by her employer, a government-funded provider of settlement services for immigrants, just 6 weeks after she had been hired. The employee filed a human rights complaint with the Human Rights Tribunal of Ontario (Tribunal), alleging discrimination on the basis of her race, colour, ancestry, place of origin, disability (subsequently abandoned), ethnic origin, creed and sex. Most of these claims were dismissed by the adjudicator, but he did find that the employer’s policies on workplace dress (which required ‘business attire’) and its ban on heating smelly food in the microwave in the lunch room were discriminatory. As a result, her termination was also deemed discriminatory.
On judicial review to the Divisional Court1, Molloy J found many deficiencies in the reasons of the Tribunal, all of them stemming from the lack of factual evidence to support the findings of discrimination. A new hearing at the Tribunal was ordered, before a different adjudicator.
As a preliminary matter, the Divisional Court was prepared to admit fresh evidence – or rather evidence that the adjudicator had refused to consider at the hearing. The first of these pieces of evidence was a letter from a key witness for the employer, in which he explained why he could not attend the Tribunal hearing. Because the employer was self-represented, it was incumbent on the adjudicator to explain that it would be possible to seek an adjournment in order to permit the witness to testify, especially in light of the importance of the witness’s testimony about matters in issue. The adjudicator had drawn an adverse inference from the witness’s failure to testify. All of this was a breach of procedural fairness. The second piece of fresh evidence submitted by the employer was a photograph of someone wearing the kind of clothing which Saadi had worn to work which was simply a visual aid and there was no reason in principle to exclude it.
As for the microwave policy, the Divisional Court just didn’t buy the contention that it discriminated against any person or group of persons on one of the enumerated grounds. Speaking of the policy’s enforcement by the employer, the court stated: ‘I do not see how the ethnicity and ancestral rights of a Bengali-Canadian Muslim [Saadi] are adversely affected by being prevented from reheating somebody else’s Tunisian food’. The adjudicator’s findings on this simply had no rational basis. The same result was reached in relation to the dress code. There was no evidence to support the allegation that the dress code was applied so as to discriminate against Saadi, and nothing in the dress code that prevented her from wearing clothing appropriate to her religious beliefs. Wearing an old sweatshirt and baggy trackpants might satisfy Saadi’s religious requirement to wear ‘modest’ dress, but could validly be objected to by the employer as unprofessional in the workplace. By refusing to hear the testimony of the key witness or to accept what he did hear about suspicious behaviour on Saadi’s part, the adjudicator unreasonably concluded that discrimination was the real cause for her termination. The employer was awarded its costs, payable by Saadi – something the Tribunal could not have ordered even if it originally made the correct decision.
This is the first case since the amendments to the Human Rights Code in which the Divisional Court has struck down a decision of the Tribunal and ordered a new hearing, reconvened by a differently constituted panel. Accordingly, it demonstrates a willingness by the Divisional Court to question the Tribunal’s decision-making with respect to evidentiary standards, procedure and outcome. This is especially significant considering the high degree of deference usually afforded to the Tribunal.