Executive Summary: Key Legal and Evidentiary Issues

• Legitimacy of dismissing a human rights application as “abandoned” where the applicant continued to participate and attempted to comply with Tribunal directions.
• Reasonableness of the Tribunal’s finding that key documents were “faint and blurry and cannot be read” when the court and counsel were able to read them.
• Scope of judicial review of Human Rights Tribunal decisions, including the applicable standard of review (reasonableness) despite a “patently unreasonable” clause in the Human Rights Code.
• Proper use of abandonment dismissals compared with situations of deliberate non-cooperation, as illustrated by the Tribunal’s reliance on Eisenberg v. Seneca College.
• Relevance of minor procedural defaults (late filings by a few days) to the drastic remedy of dismissing a human rights application.
• Remedial approach on judicial review, including setting aside the dismissal and remitting the matter to a differently constituted panel without costs.

Background facts

Robert Paquette was employed by West Nipissing General Hospital (WNGH) and filed a human rights application in 2019 with the Human Rights Tribunal of Ontario (the Tribunal), alleging discrimination by his employer. WNGH responded to the application, and Mr. Paquette filed a reply. The Canadian Union of Public Employees (CUPE), the bargaining agent for WNGH’s employees, participated as an intervenor at the Tribunal and later became a respondent in the judicial review proceeding. In a Case Assessment Direction dated September 25, 2023, the Tribunal ordered all parties to serve and file the documents on which they intended to rely by November 6, 2023. Mr. Paquette filed his documents on November 12, 2023, six days beyond the deadline. The Tribunal accepted the materials into the record but later raised concerns about the legibility of two specific documents.

Tribunal proceedings and concerns about document legibility

About five months after the filing of the documents, on April 29, 2024, the Tribunal emailed Mr. Paquette attaching two of his documents and directing him to re-submit them in a clearly readable format. The Tribunal stated that the text in those attachments was “faint and blurry” and could not be read. Mr. Paquette responded on May 15, 2024, two days after the specified deadline of May 13, 2024. He maintained before the Divisional Court that he re-filed the documents in a different format. The Tribunal, through Vice-Chair Dawson, issued an endorsement on June 25, 2023, stating that instead of providing new copies of the documents, Mr. Paquette had simply re-submitted the same faint and blurry copies. The Tribunal said it remained unable to read the two documents and therefore could not assess his submissions or move the application forward. The endorsement directed Mr. Paquette to file new readable copies of those two documents within 14 days, with proof of delivery, and warned that failure to do so could result in the application being dismissed as abandoned. Mr. Paquette replied by email on July 10, 2023, but inadvertently attached the wrong files.

Request to dismiss for abandonment and Tribunal’s final decision

On July 17, 2023, counsel for WNGH wrote to the Tribunal asking that Mr. Paquette’s application be dismissed as abandoned, arguing that his “continuing disregard” for Tribunal directions imposed unnecessary legal expense, consumed time, and undermined the integrity of the process. Once he received this letter, Mr. Paquette realized that he had sent the wrong documents and then sent what he said were the correct ones. Despite this, on August 8, 2024, the Tribunal issued a decision dismissing his application as abandoned. The Tribunal reasoned that an applicant who fails to follow Tribunal directions prevents the application from moving forward just as effectively as if the applicant stopped communicating altogether, and it relied on Eisenberg v. Seneca College of Applied Arts and Technology, 2012 ONSC 4802, for the proposition that the Tribunal is entitled to dismiss applications where an applicant is not prepared to cooperate with its process. Mr. Paquette sought reconsideration of the dismissal, but the Tribunal refused reconsideration on October 24, 2024.

Judicial review framework and standard of review

Mr. Paquette brought an application for judicial review to the Ontario Divisional Court. The Court’s jurisdiction flowed from sections 2 and 6(1) of the Judicial Review Procedure Act. Although section 45.8 of the Ontario Human Rights Code states that Tribunal decisions shall not be set aside unless they are “patently unreasonable,” the Divisional Court followed existing appellate authority and applied reasonableness as the governing standard of review, relying on Ontario (Ministry of Health and Long-Term Care) v. Association of Ontario Midwives. Under this standard, the Court examined whether the Tribunal’s decision, including its factual findings and its dismissal for abandonment, could be justified, was transparent, and was intelligible in light of the evidence before it and the governing legal framework.

Assessment of the Tribunal’s treatment of the documents and delay

The central issue for the Court was the Tribunal’s conclusion that the two documents were illegible. The Divisional Court directly inspected the documents and found that although the text was faint, the documents were nonetheless readable. Counsel for WNGH and counsel for the Tribunal both acknowledged at the hearing that they could read the documents. The Court therefore held that the Tribunal’s finding that it could not read the documents was unreasonable. In the Court’s view, it was in as good a position as the Tribunal to assess legibility, and no specialized expertise was involved. To the extent that the Tribunal’s conclusion was a factual finding, the Court characterized it as clearly unreasonable and amounting to palpable and overriding error, referencing H.L. v. Canada (Attorney General). WNGH argued that the decision could still be upheld based on Mr. Paquette’s late filings: he had filed his original documents six days after the November 6, 2023 deadline and had been two days late in responding to the April 29, 2024 email. The Court rejected this argument for three reasons. First, the Tribunal had not relied on lateness as the basis for dismissal; its reasoning focused on alleged illegibility and non-compliance with directives regarding readable copies. Second, because the original documents were in fact legible, Mr. Paquette had already substantively complied with the Tribunal’s request. Third, even accepting that he had been a few days late, the record did not show deliberate refusal to cooperate with the Tribunal in the way seen in Eisenberg, which involved genuine non-cooperation. The Court also noted that WNGH itself had encouraged the Tribunal to dismiss the application as abandoned on the legibility issue, even though its counsel later acknowledged that the documents were legible from the outset.

Outcome and remedial orders

The Divisional Court granted the application for judicial review. It concluded that the Tribunal’s decision to dismiss the human rights application as abandoned on the basis of unreadable documents could not withstand reasonableness review because the factual premise—illegibility of the documents—was demonstrably wrong. As a remedy, the Court set aside the Tribunal’s dismissal and remitted the matter to the Human Rights Tribunal of Ontario for a hearing before a different adjudicator, thereby giving Mr. Paquette a renewed opportunity to have the merits of his discrimination claim heard. On the issue of costs, Mr. Paquette did not seek any costs of the judicial review, and the Court ordered that no costs be awarded. The decision did not address or award any human rights damages, compensation, or other monetary sums; those issues remain to be determined, if at all, by the Tribunal on the remitted hearing. Accordingly, the successful party in this proceeding is Mr. Paquette, but no specific monetary amount in the form of damages, compensation, or costs was ordered in his favour, and the total monetary award cannot be determined from this decision.