The Divisional Court upheld the HRTO’s decision

The Divisional Court upheld the HRTO’s decision

 

CITATION: Intercounty
Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632

DIVISIONAL COURT FILE
NO. 077/19

DATE: 20200407

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse and Mew JJ.

BETWEEN:

)

)

 

Intercounty Tennis Association

Applicant

– and –

Human Rights Tribunal of Ontario,
Catherine Boyd, Cheryll Corness and Fiona Miller

Respondents

)

) )

) )

) )

)
)
)
)
)


Jennifer Zdriluk, for the Intercounty
Tennis Association

Brian Blumenthal, for the Human Rights
Tribunal of Ontario, Rebecca Glass
and Mathieu Belanger, for the Respondents
Catherine Boyd, Cheryll Corness and Fiona Miller

HEARD at Toronto: February 24, 2020

REASONS FOR DECISION

Sachs J.:

Introduction

[1]
The Applicant tennis
association (“ICTA”) is a non-profit organization whose members are tennis
clubs. It runs a number of interclub tennis leagues for its member clubs,
including a Mixed League. The Mixed League allows both male and female tennis
players to join on the basis of competitive tryouts. In terms of organization,
it uses “fixtures,” which are a series of matches between doubles pairs. Under
the fixture format, the Mixed League offered twice as many playing spots to men
as it did to women.

[2]
The individual Respondents are
women who have either played on teams in the ICTA’s Mixed League (Ms. Miller
and Ms. Boyd) or tried out for spots and were unable to obtain them (Ms.
Corness). All three filed applications with the Tribunal alleging that the ICTA
had discriminated against them on the basis of sex.

[3]
On July 12, 2018 the Tribunal
sustained their complaints and ordered the ICTA to change its fixture format
(the “Initial Decision”). The ICTA sought reconsideration of that decision. On
January 17, 2019, the Tribunal refused the ICTA’s request for reconsideration
(the “Reconsideration Decision”).

[4]
On this application the ICTA
seeks to judicially review and set aside the Tribunal’s decisions. In doing so
it does not seek to challenge the Tribunal’s findings that the individual Respondents
were discriminated against on the basis of sex. Rather, it asserts that the
Tribunal erred when it found that all of the individual Respondents had
standing to bring their applications and it erred in its conclusions regarding
the timeliness of those applications. The ICTA also argues that the Tribunal
breached the duty of procedural fairness and that it failed to apply accepted
jurisprudence in its analysis of whether the ICTA would suffer undue hardship
if it was ordered to implement a gender-equal fixture format.  

[5]
The Tribunal submitted that as
a result of the Supreme Court’s decision in Canada
(Minister of Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, 441
D.L.R. (4th) 1, the appropriate standard of review to apply to the Tribunal’s
decisions is the one set out in the Ontario Human
Rights Code
, R.S.O. 1990, c. H.19 (the “Code”)
– patent unreasonableness – and that this phrase must be given a meaning that
differs from reasonableness.

[6]
For the reasons that follow, I
would dismiss the application. I reject the submission that the effect of Vavilov is to change the standard by
which Ontario courts review the Tribunal’s decisions. I also find that the
Tribunal’s decisions respecting standing, timeliness and undue hardship were rationally
supported. Further, the Tribunal did not breach the duty of procedural fairness.
As a result, the ICTA’s application must fail.

Background

The Respondents

[7]
The Respondents, Catherine Boyd, Cheryll Corness and Fiona Miller, are
women who have either tried out for or played on teams in the ICTA’s Mixed
League. Between December 2015 and January 2016, each of them commenced an
application to the Tribunal alleging that the ICTA discriminated against them on
the basis of sex by offering twice as many playing opportunities to men in its
Mixed League as it does to women. The three applications were consolidated and
heard together over the course of four days.

[8]
In their applications the Respondents did not seek a monetary remedy,
but rather an order that the ICTA be required to provide equal playing
opportunities for men and women in its Mixed League.

The ICTA

[9]
The ICTA is governed by a board
of directors, and is comprised of member tennis clubs, each of which vote on
the ICTA’s internal rules and by-laws. While the ICTA’s board can propose
changes to rules and by-laws, these changes are subject to votes by its member
clubs. Individuals who play tennis in one of the ICTA’s leagues are not members
of the ICTA tennis association, but rather members of their local club.

[10]
At the relevant time, the ICTA
operated four interclub tennis leagues for its member clubs. Each league is
divided by skill level from lowest to highest. Individual players are typically
selected to play in particular leagues through competitive try-outs.

The Mixed League

[11]
The Mixed League is the ICTA’s largest league and one of the largest
leagues in Ontario. It hosts approximately 160 teams and 480 matches a week.
Each playing season runs for 14 weeks. Unlike some of the other leagues run by
the ICTA (including the Ladies League) the Mixed League matches are played in
the evening.

[12]
The Mixed League is organized into “fixtures,” which are a series of
matches between doubles pairs belonging to two different teams. The team roster
is comprised of 12 players in total, divided into six pairs. Of these six
pairs, three are men’s doubles pairs, two are mixed-gendered doubles pairs, and
one is a women’s doubles pair. There are eight playing spots available to men
and four spots available to women in each team in each fixture. The 8:4 men-to-women
format was established when the ICTA was formed in 1962. The rationale for this
format appears to have been two-fold: men, unlike women, worked outside the
home during the day and needed to play in the evenings, and there were more
competitive male players interested in playing than competitive female players.
The ICTA put forward a similar version of this rationale in the hearing before
the Tribunal.

[13]
The uncontroverted evidence before the Tribunal was that during the
Mixed League’s 14-week playing season in 2016, women were afforded 628 playing
opportunities per week and men were afforded 1,256 playing opportunities per
week.

[14]
During the hearing the ICTA asserted that it provided more playing
opportunities for women than for men when all of its leagues (including the
daytime Ladies League) were considered. The Tribunal concluded that the scope
of the issue before it was whether the playing format of the Mixed League
discriminated against women, not whether the format of the ICTA’s leagues were
discriminatory when considered as a whole.

Previous Attempts to Equalize Playing Opportunities

[15]
Prior to the Respondents’ applications to the Tribunal, there were
previous attempts to change the ICTA’s Mixed League format to provide equal
playing opportunities for women. These attempts came in the form of a trial 6:6
format in one particular Division, and several unsuccessful motions during
Annual General Meetings.

Survey to Gauge Demand from Women to Play in the Mixed
League

[16]
In order to gauge, among other things, the level of demand from women to
play in the Mixed League, the parties, under the Tribunal’s direction, formed a
survey committee comprised of two members of the ICTA’s Executive Board and two
of the individual Respondents (the “Committee”).

[17]
The response rates to the survey was robust, with a high degree of
engagement by member clubs and individual players.

[18]
When responding to questions about player satisfaction with the 8:4
format of the Mixed League, female players were less satisfied than their male
counterparts. When asked if their satisfaction with the Mixed League would
increase or decrease if a gender-equal format were implemented, women generally
reported that their satisfaction would increase while men overwhelmingly
indicated that their satisfaction levels would decrease

[19]
The Committee also surveyed individuals who were not currently playing
in the Mixed League. Roughly the same number of men and women expressed
interest in playing in the Mixed League in the future. Almost a third of women
responded that they would be encouraged to play if the League adopted a gender-equal
format.

The Hearing Before the Tribunal

[20]
In December of 2016, after the hearing in the matter had been scheduled,
the ICTA sought a summary hearing. The Tribunal refused its request, but in the
course of doing so issued a Case Assessment Direction that defined the scope of
the hearing it was going to hear on the merits. This direction is the focus of
the ICTA’s procedural fairness argument. Specifically, the ICTA asserts that in
its reasons, the Tribunal relied on evidence that went beyond the scope of the
hearing as it had defined it in the Case Assessment Direction.

[21]
The three applications were consolidated and heard together over several
days in the winter of 2017 and the spring of 2018.

[22]
The Tribunal heard evidence from all three Respondents and from eight
witnesses called on behalf of the ICTA.

[23]
At the outset of the hearing the ICTA raised two preliminary objections:
(1) whether the Respondents had standing to bring their applications if they
had not actually been denied a service and if their applications were untimely,
and (2) whether the recreational club exception in section 20(3) of the Code applied to preclude the ICTA from
being named as a respondent in the applications before the Tribunal. After
hearing submissions on these preliminary issues, the Tribunal concluded that
the Respondents had standing before it and that two of the three applications
before it were timely. It also concluded that the ICTA was not a recreational
club within the meaning of the Code. The
first issue – standing and timeliness – is one of the bases of the application
for review before us. The second is not.

[24]
In its discrimination analysis, as already noted, the Tribunal clarified
that it was confining its analysis to the playing opportunities afforded in the
Mixed League only.  The Tribunal applied the well-established
test to determine whether the Respondents had established prima facie discrimination on a protected ground under the Code and found that they had. Once an applicant
establishes prima facie discrimination,
the respondent (here, the ICTA) bears the evidentiary burden to justify the
impugned conduct or practice.

[25]
While the ICTA disputed that the Respondents had experienced adverse
treatment, its main justification for maintaining the status quo was that
imposing a gender-equal fixture model may result in attrition that would cause
the ICTA undue hardship.

[26]
The Tribunal did not accept that the ICTA would incur undue hardship by
equalizing playing opportunities for men and women in the Mixed League.
According to the Tribunal, the financial evidence presented to the Tribunal of
undue hardship was speculative at best. The Tribunal did not accept that demand
by female players to participate in the Mixed League was as low as the ICTA
suggested.

[27]
The Tribunal’s analysis on undue hardship is one of the focuses of this
application for judicial review.

The Remedy Ordered by the Tribunal

[28]
The Tribunal ordered the ICTA to implement a staggered remedy in which
the number of playing opportunities in the Mixed League would equalize between
men and women beginning with the lowest skill level in the league in the first
year of implementation, following which the other three levels would equalize
every year thereafter.

Request for Reconsideration

[29]
On August 13, 2018, the ICTA filed a request for reconsideration of the
Tribunal’s decision pursuant to s. 45.7 of the Code. The basis for this request was similar to the grounds
advanced on this application, namely challenges to the standing and timeliness
of the applications and a denial of procedural fairness. On January 17, 2019, the
request for reconsideration was denied.

The Applicable Standard of Review

[30]
As already noted, the Tribunal
asserts that the standard of review to be applied to this application is patent
unreasonableness and that this phrase has a meaning that is different from
reasonableness. The basis for its submission is the holding in Vavilov that the presumption of
reasonableness review can be rebutted “where the legislature explicitly
provides the applicable standard of review:” Vavilov, at para. 17.

[31]
Section 45.8 of the Code provides that:

[A] decision of the Tribunal is final and
not subject to appeal and shall not be altered or set aside in an application
for judicial review or in any other proceeding unless that decision is patently
unreasonable.

 

[32]
The history of this provision
is summarized in Shaw v. Phipps, 2010
ONSC 3884, 325 D.L.R. (4th) 701 (Div. Ct.), upheld 2012 ONCA 155, [2012] O.J.
No. 2601. Specifically, in 2006 the Ontario legislature made significant
amendments to the Code that allowed parties
to apply directly to the Tribunal alleging discrimination. These applications were
to be heard by expert adjudicators whose decisions were no longer subject to a
right of appeal. As put by the Divisional Court at para. 38 of Shaw v. Phipps:

It is obvious that when the Legislature
enacted that standard [s. 45.8] in December 2006, the intent was to have the
courts accord the same high degree of deference to the Tribunal that they accorded
to other experienced and expert administrative tribunals, such as the Ontario
Labour Relations Board.

 

[33]
While these amendments,
including s. 45.8, were drafted in 2006, they were not proclaimed to come into
force until June 30, 2008.

[34]
Meanwhile, in March of 2008,
the Supreme Court of Canada decided Dunsmuir
v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190. The aim of that decision
was to develop “a principled framework” for judicial review that was “more
coherent and workable” than the one in place at the time: para. 32. In achieving
that aim the Supreme Court eliminated the three standards of judicial review
that existed – correctness, reasonableness and patent unreasonableness – and
concluded that there ought to be two standards of review – correctness and
reasonableness.

[35]
The Supreme Court examined the
standard of patent unreasonableness and how it had been interpreted in the case
law. The Court concluded that there was no meaningful distinction to be made
between reasonableness and patent unreasonableness. Both standards accepted
that there could be more than one valid interpretation of a statutory provision
or “answers to a legal dispute and that courts ought not to interfere where the
tribunal’s decision is rationally supported.” The patent unreasonableness
standard used wording directed at having the court look either to the magnitude
of the defect (“bordering on the absurd”) or the immediacy of the defect
(“clearly irrational” or “apparent on the face of the decision”). However, as
the Supreme Court noted at para. 41 of Dunsmuir:

Looking to either the magnitude or the
immediacy of the defect in the tribunal’s decision provides no meaningful way
in practice of distinguishing between a patently unreasonable and an
unreasonable decision. As Mullan has explained:

 

To maintain a position that it is only
“clearly irrational” that will cross the threshold of patent unreasonableness
while irrationality simpliciter will
not is to make a nonsense of the law. Attaching the adjective “clearly” to
irrational is surely a tautology. Like “uniqueness,” irrationality either
exists or it does not. There cannot be shades of irrationality.

 

[36]
The Supreme Court also noted
the rule of law concern inherent in requiring “parties to accept an irrational
decision simply because, on a deferential standard, the irrationality of the
decision is not clear enough. It is also inconsistent with the rule of law to
retain an irrational decision:” Dunsmuir,
at para. 42.

[37]
Based on this reasoning, the Divisional
Court in Shaw v. Phipps concluded
that the content of the “patent unreasonableness” standard in s. 45.8 of the Code was equivalent to reasonableness.
The decisions of the Tribunal must be respected “unless they are not rationally
supported.” The Court of Appeal accepted the Divisional Court’s conclusion on
this issue at para. 10 of its decision where the Court states:

An Adjudicator’s decision is not subject to
appeal, but only to judicial review: see s. 45.8 of the [Code]. All counsel agree that the Divisional Court properly
identified “reasonableness” as the appropriately deferential standard of review
on an application for judicial review of the Adjudicator’s conclusion of discrimination.
In recognition that the Adjudicator “has a specialized expertise” in the area,
the Divisional Court explained that the reasonableness standard accords “the
highest degree of deference…with respect to the [Adjudicator’s] determinations
of fact and the interpretation and application of human rights law.” Deference
is maintained unless the decision is not rationally supported. [citations
omitted]

 

[38]
All counsel on this
application, except for counsel for the Tribunal, agree that “reasonableness”
continues to be the appropriate standard of review for the Tribunal’s
decisions.

[39]
The issue I must determine is
whether, as the Tribunal asserts, Vavilov
has overruled this principle.

[40]
In Vavilov the majority began by identifying the need for further clarification
and simplicity in the law surrounding judicial review. As put by the majority
at paras. 7- 8:

[7]  […]
It has become clear that Dunsmuir’s
promise of simplicity and predictability in this respect has not been fully
realized. In Dunsmuir, a majority of
the Court merged the standards of “patent unreasonableness” and “reasonableness
simpliciter” into a singe
“reasonableness” standard, thus reducing the number of standards of review from
three to two. It also sought to simplify the analysis for determining the
applicable standard of review… However, uncertainty about when the contextual
analysis remains appropriate and debate surrounding the scope of the
correctness categories have sometimes caused confusion and
made the analysis
unwieldy.

 

[8] In addition, this analysis has in some
respects departed from the theoretical foundations underpinning judicial
review. While the application of the reasonableness standard is grounded in
part in the necessity of avoiding “undue interference” in the face of the
legislature’s intention to leave certain questions with administrative bodies
rather than with the courts, that standard has come to be routinely applied
even where the legislature has provided for a different institutional structure
through a statutory appeal mechanism.
[citations
omitted]

 

[41]
From these paragraphs and the
ones that follow, it can be discerned that the Supreme Court identified three major
issues with the post Dunsmuir standard
of review era that it sought to address:

(a)
A need for clarification about
what a reasonableness review entails in response to concerns that this type of
review “is sometimes perceived as advancing a two-tiered justice system in
which those subject to administrative decisions are entitled only to an outcome
between “good enough” and “not quite wrong:” para. 11;

(b)
A need to recognize that when
the legislature has provided for a right of appeal that direction should be
respected and interpreted to mean that the court is to perform an appellate
function in relation to the decision at issue; and

(c)
A need to clarify the scope of the
correctness categories of review.

[42]
Nowhere in Vavilov does the Court identify the merger of the reasonableness
and patent unreasonableness standards as being one of the features of Dunsmuir that it is seeking to revise.
Furthermore, to reintroduce the distinction would be contrary to the Court’s
stated purpose in Vavilov – to
clarify and simplify the law of judicial review. Reintroducing what the Court
has already called a “meaningless” distinction that caused confusion would run
counter to this aim.

[43]
Furthermore, in the section of Vavilov that expands on legislated
standards of review, the Court ends its discussion with the following statement
at para. 35:

We continue to be of the view that where
the legislature has indicated the applicable standard of review, courts are
bound to respect that designation, within the limits imposed by the rule of
law.

 

[44]
As set out above, returning to
an era where “patent unreasonableness” is given a meaning beyond
“reasonableness” does raise rule of law concerns – namely, the fact that an
irrational decision is allowed to stand because its irrationality is not
“clear” or “obvious” enough.

[45]
For these reasons I find that
the words “patent unreasonableness” in the Code
are to be given the meaning ascribed to them in Shaw v. Phipps – namely, reasonableness.

[46]
The issues of standing, timing
and undue hardship are to be reviewed on a standard of reasonableness. No
standard of review analysis is necessary for the procedural fairness issue. A
decision is either procedurally fair or it is not.

Was the Tribunal’s Decision with Respect to Standing and
Timeliness Reasonable?

[47]
Section 34 of the Code provides that a person may bring an
application before the Tribunal if they believe that “any of his or her rights
under Part 1 have been infringed.” It does not allow for “public interest”
litigation. In other words, to have standing an applicant must show they were
personally affected in a way that infringed their rights. According to the ICTA,
the Respondents’ applications were disguised “public interest” litigation. The
Respondents themselves either were not denied playing opportunities in the
Mixed League or their applications were out of time.

[48]
Section 34(1) states that an applicant
may apply to the Tribunal within one year of the last incident to which the
application relates. The Respondents filed their applications between December
29, 2015 and January 6, 2016.

[49]
Ms. Corness tried out for the ICTA’s
Mixed League team through her Club every year between 2000-2003 and was unsuccessful
in securing a playing spot. Since 2003 she has not tried out for the Mixed
League and, therefore, has not been denied the opportunity to play in the Mixed
League. The Tribunal accepted that Ms. Corness’ application was out of time,
but found that her experiences with the Mixed League did not make her an
“officious bystander” or an individual who lacked “a personal interest in the
issues raised in the Application.”

[50]
Ms. Miller tried out for and secured
a position in the Mixed League in 2013 and 2014. She did not try out for the
Mixed League in 2015. In its Initial Decision the Tribunal noted that:

Ms. Miller testified to the injury to dignity she
experiences when she is told that women should accept ‘a back seat’ by
accepting unequal playing opportunities and that women are not ‘good enough’ to
play in the Mixed League. She also spoke to the harm to her self-worth as a
woman that was associated with the implicit assumption that any inequality is
made up for by providing women with daytime playing opportunities in the Ladies
League. As a result, the Tribunal found that Ms. Miller had “recent and ongoing
experience playing in the [ICTA’s] Mixed League.

[51]
In its Reconsideration Decision
the Tribunal stated that it had “some difficulty understanding the Vice-Chair’s
reasoning with respect to the timeliness of Ms. Miller’s claim, given that her
Application was filed over a year after she attempted to find a playing spot.”
However, it also found that this would not serve as a basis to set aside the
decision since Ms. Boyd’s application was timely and she had standing, and the Tribunal
had consolidated the applications prior to the hearing.

[52]
The ICTA acknowledged that Ms.
Boyd’s application was timely as she did try out for the Mixed League in 2015.
However, it argues that since Ms. Boyd was allowed to play in 2015, she did not
experience discrimination. The Tribunal disagreed. At para. 61 of the Initial
Decision it found as follows:

Ms. Boyd testified that she faced
difficulties in finding a spot on an ICTA Mixed C Team at the Davisville tennis
club. According to Ms. Boyd, in 2013 and 2014 similar numbers of men and women
were competing for spots on the team, even though there were only half the
number of spots available for women as for the men. In 2013, 2014 and 2015, to
find a spot so she could play, Boyd joined and tried out at other clubs and
thus had to pay membership fees at these other clubs. She testified that, in
2015, her playing opportunities were restricted by her team captain when he
recruited four other women who he felt were stronger. She alleged that she
would have had more opportunities to play if the ICTA were using a 6:6 male to
female format.

 

[53]
In other words, while Ms. Boyd
did get to play in the Mixed League in 2015, she was only able to do so after
joining another club and paying more fees and when she did so her playing opportunities
were restricted. On this basis the Tribunal found that Ms. Boyd had suffered
discrimination. In doing so, the Tribunal did not accept the ICTA’s assertion
that discrimination under the Code
requires that a service be denied in full. The Tribunal’s interpretation of
human rights protection is consistent with the broad and purposive application
required of remedial legislation such as the Code.

[54]
The Tribunal has broad
discretion when it comes to fashioning appropriate remedies. Its mandate includes
the power to order public interest remedies such as the remedy ordered in this
case. The remedy ordered could have been ordered on the basis of a single
application. Therefore, even if only one application before it was timely, the
Tribunal’s decision was reasonable and any error it may have made with respect
to the timeliness of Ms. Miller’s application was inconsequential.

Was There a Denial of Procedural Fairness?

[55]
After the Respondents filed
their applications, they sought to amend them to include allegations of a
poisoned environment on match nights and practices. In its Case Assessment
Direction dated January 31, 2017, the Tribunal refused to allow this amendment
and limited the hearing to the issue of the number of playing opportunities for
women and men in the Mixed League.

[56]
According to the ICTA, the
Tribunal’s acknowledgment of Ms. Miller’s testimony about the injury to dignity
she experienced when she was told that women should take a “back seat” by
accepting unequal playing opportunities, and Ms. Boyd’s testimony that “she
would have had more opportunities to play if the ICTA were using a 6:6 male to
female format” expanded the scope of the application to include matters that
the ICTA had said it would not hear: Initial Decision, paras. 60-61. This in
turn put the ICTA in the position where it did not know the case it had to
meet, which constituted a denial of natural justice.

[57]
In its Reconsideration Decision
the Tribunal rejected the ICTA’s submission, finding that the evidence that was
accepted did not relate to a poisoned environment on match nights and
practices, but rather to how the individual Respondents felt about having to
accept unequal playing opportunities. The denial of equal playing opportunities
was the central claim before the Tribunal, and the impact of that denial on the
Respondents “fell squarely within the allegations made in the Application:” Reconsideration
Decision, para. 17.

[58]
This conclusion on the part of
the Tribunal was a reasonable one. Its reasonableness becomes apparent when the
original (as opposed to the proposed amended applications) filed by the individual
Respondents are considered. In each of those applications the Respondents remarked
on how denying women equal playing opportunities “questions the value of women
and of women’s sports and is demeaning to women.” Thus, the impact of the
alleged discriminatory conduct on them was raised by the individual Respondents
in their original applications and the ICTA had notice of it.

Were the Tribunal’s Decisions with respect to Undue
Hardship Reasonable?

[59]
The ICTA argues that the
Tribunal’s analysis with respect to undue hardship runs contrary to established
jurisprudence and held the ICTA to an impossible standard.

[60]
In the Initial Decision, once
the Tribunal found that the individual Respondents had made out a prima facie case of discrimination (a
finding that was not challenged on this application), the evidentiary burden
switched to the ICTA to establish that the provision of half as many playing
spots to women compared to men was justified. To do so, the ICTA argued that
providing an equal number of playing spots for women would cause a high enough
number of teams and/or clubs to leave the ICTA that it would it cease to be
able to operate financially and thus would experience undue hardship.

[61]
In conducting its undue
hardship analysis, the Tribunal modified the test for making out the “bona fide occupational requirement”
defence in employment cases. The Tribunal noted that outside of the employment
context the test has been referred to as the bona fide justification defence. The test is set in British Columbia (Public Service Employee
Relations Commission) v. BCGSEU
, [1999] 3 S.C.R. 3 and, as described by the
Tribunal at para. 86 of its Initial Decision, consists of the need to establish
three things on a balance of probabilities:

1.      that the employer adopted the standard or
rule for a purpose rationally connected to the performance of the job;

 

2.      that the employer adopted the particular
standard in an honest and good faith belief that it was necessary to the
fulfillment of that legitimate work-related purpose; and

 

3.      that the standard is reasonably necessary
to the accomplishment of that legitimate work-related purpose. To show that the
standard is reasonably necessary, it must be demonstrated that it is impossible
to accommodate individual employees sharing the characteristics of the claimant
without imposing undue hardship upon the employer.

 

[62]
The Tribunal focused its
analysis on the third part of the test, which, modified for the case before it,
required the ICTA to demonstrate on a balance of probabilities that it is
impossible for it to provide equal playing opportunities for women without
incurring undue hardship.

[63]
The Tribunal reviewed the evidence
that the ICTA put forward on this issue. First, the ICTA called a witness to
testify as to the possible financial consequences to the ICTA if certain
attrition rates occurred. The only evidence as to what the attrition rates
might actually be came from witnesses who testified that some clubs had had
difficulty finding enough strong women players to fill all the current slots on
the Mixed League teams.

[64]
The Tribunal was not persuaded
that this difficulty finding strong women players would cause the ICTA to
experience undue hardship because clubs would leave the league. First, the
witnesses who testified stated it was difficult to find “competitive” or
“strong” women players. This suggested that there was a demand by women to
play, just not enough women who are perceived by the clubs to be strong enough.
Second, the Tribunal noted that the survey results suggested that there was a
“sizeable interest” on the part of women to play in the Mixed League. In
particular, approximately two thirds of the women who were not currently
playing in the Mixed League were interested in playing in that league. Third,
the evidence revealed that the membership in the ICTA  was “sticky” or loyal. This is because the ICTA
offers its members something that other leagues do not – a longer season and
the opportunity to play in the evenings.

[65]
The Tribunal recognized that
there had been resistance on the part of clubs to the idea of equalizing
playing opportunities for women. It also acknowledged that one experiment with
the 6:6 format was short-lived. However, it was not persuaded by this evidence
that if a gender-equal playing opportunity format was put in place, this would
cause the clubs to leave the ICTA. Among other things, if the problem was
finding enough “strong” women to fill the spots, the format would not have to
be a 6:6 format. There are other ways to equalize. In addition, the Tribunal
found that a vote to change the status
quo
was different than voting to leave the association altogether,
especially when the survey showed that there were so many women who were
interested in playing in the ICTA.

[66]
The Tribunal ended its analysis
as follows:

[93] There may have been good reason for
clubs to adopt the Mixed League format they chose in 1962. However, much has
changed over the last 50 years. Various witnesses in this case testified that
more women are participating in sport and this trend is continuing to grow with
younger generations. At the same time, it was not disputed that the rate of
women working full-time outside the home in the paid labour force has increased
significantly since 1962. Therefore, in my view, it is no longer reasonable to
justify inequalities in evening playing opportunities by pointing to the
existence of daytime opportunities for women.

 

[67]
The ICTA alleged that the Tribunal’s
analysis was unreasonable because the Tribunal refused to accept the ICTA’s “unrefuted
evidence” and instead “substituted its own assumptions of what ‘may’ happen in
order to find that undue hardship does not exist.”  

[68]
I reject this characterization.
The ICTA’s evidence on the financial consequences to it of equalizing playing
opportunities depended upon accepting certain attrition levels. The evidence as
to the amount of attrition there would be went both ways. The Tribunal weighed
that evidence and found, as it was entitled to, that the ICTA had not
established that the level of attrition the ICTA was asserting would occur. Its
findings on this issue were grounded in the evidence and were reasonable.

[69]
The ICTA also argued that the
Tribunal ignored the Supreme Court’s decision in Hydro-Québec v. Sydicat des employé-e-s de techniques professionnelles
et de bareau d’Hydro-Québec
, section locale 2000
(SCFP-FTQ)
, 2008 SCC 43, [2008] S.C.R. 561 and particularly its direction
at para. 12:

What is really required is not proof that
it is impossible to integrate an employee who does not meet a standard, but
proof of undue hardship, which can take as many forms as there are
circumstances.

 

[70]
Hydro-Québec is a case about an employee who
had been absent for a large number of days due to illness. Her employer
accommodated her absences and did not terminate her until her physicians
indicated that she should stop working for an indefinite period of time. The
Supreme Court held that if an employer’s enterprise will be hampered
excessively by having an employee who is unable to work for the foreseeable
future and the employer has tried to accommodate the employee’s illness, the
undue hardship test will be satisfied.

[71]
The facts of Hydro-Québec are in no way analogous to the
facts of the case at bar. Further, Hydro-Québec
did not change the test set out in BCGSEU,
the test which the Tribunal applied appropriately. There is no merit to the
ICTA’s assertion that the Tribunal failed to apply established jurisprudence.

Conclusion

[72]
For these reasons the
application is dismissed. As agreed by the parties the ICTA is to pay the
individual Respondents their costs of $5000.00, all inclusive. No costs were
sought by or against the Tribunal and none are awarded.

 

 

 

_______________________________

H. Sachs J.

 

I agree               _______________________________

Backhouse J.

 

I agree               _______________________________

Mew J.

 

 

 

Released: April 07, 2020

 

CITATION: Intercounty
Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632

DIVISIONAL COURT FILE
NO. 077/19

DATE: 20200407

 

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

H. Sachs, Backhouse and Mew JJ.

BETWEEN:

Intercounty Tennis Association

Applicant

– and –

Human Rights Tribunal of Ontario,
Catherine Boyd, Cheryll Corness and Fiona Miller

Respondents

REASONS FOR DECISION

H. Sachs J.

 

Released: April 07, 2020

Leave a Reply

Your email address will not be published. Required fields are marked *