Duelling decisions

A funny thing happened recently on the way to the Ontario Divisional Court. An administrative error led two judges to reach completely different decisions on the same motion to intervene.

The case in question, Dosu v Human Rights Tribunal of Ontario, involves a Black woman employed at York University who alleged racial and cultural discrimination at work from 2015 to 2019. She also alleged that there was discrimination by an independent third-party investigator the university retained to investigate her concerns. 

The woman made a claim to the Human Rights Tribunal of Ontario (HRTO), which dismissed most of her claims due to the one-year limitation period under Ontario’s Human Rights Code. It did, however, order several issues to a hearing, specifically York’s vicarious liability for the investigator's discriminatory acts and its duty to investigate the employee’s concerns.

The woman requested that the tribunal reconsider the dismissal, but it was refused. She applied for a judicial review of that decision.

Her case eventually found its way to the desk of Demar Hewitt, general counsel and executive director of the Black Legal Action Centre in Toronto. 

The nonprofit community legal clinic is devoted to fighting anti-black racism and provides free legal services, conducts public education, and engages in law reform. 

“It came to us because the applicant recognized that there might be more systemic issues involved in this, and there were allegations that it's not just her, there may be other persons at the university that are having similar experiences to her,” Hewitt says on the latest episode of Verdicts & Voices.

BLAC applied to intervene in the case, but Justice Sharon Shore denied the application. 

“We saw the decision, and with all our disappointment, we accepted that we're out of it,” Hewitt recalls.  

But then a twist took everyone by surprise. Exactly one day later, Justice Shaun Nakatsuru issued a separate ruling granting BLAC intervener status. 

Somehow, an administrative error assigned the motion to intervene to the two justices, who reached opposite conclusions.  

“I was floored, like everybody else on our legal committee, having not experienced that before where we have to complete in court decisions,” Hewitt says. 

“One saying, ‘no, you're out, sorry, you're bringing up issues that are not relevant to these proceedings, and another that was the complete opposite, ‘we recognize the importance of your intervention.’”

The case has highlighted differing opinions on the value of interveners, and how trust can be built in the courts, says Claire Boychuk, a labour and employment lawyer at Raven Law in Ottawa and the author of Intervening in Canadian Courts.

“When we have decision-makers that are applying the same tests and reaching completely different results, I do think it undermines that perception that the court is larger than a single judge, and there's some consistency across the legal system.”

Often called friends of the court, interveners function like the public’s representative, bringing knowledge that a tribunal or court may not have, she says. But in recent decades, interveners have been more closely involved in matters determining constitutional rights and interpreting laws that affect people beyond the two parties in a dispute. 

“That's where the birth of the modern intervener comes in,” Boychuk says.

“They come in to fill a specific purpose, which is to say, these constituencies are going to be affected by this decision. We want to make sure the court has our perspective when they're grappling with these really difficult issues.” 

On one hand, some judges take a more restrictive approach to interveners, because they believe interveners can take the litigation away from the parties.

“You can make arguments that interveners are a problem from an access to justice perspective because they are increasing the costs of litigation, slowing things down,” Boychuk says. 

“When you suddenly have 12 different parties wanting to jump into a proceeding…that can be a problem.”

On the other hand, she says there is a philosophy that when you're ruling on issues that are going to affect many people, there’s the question of what’s the principled basis, from a democratic perspective, in excluding voices?

“Where do you draw a line in the sand? Who gets excluded and why? And how do you start to decide which voices within civil society are more valuable to the court?” 

Listen to the full episode to hear about the current status of the Dosu case and to learn more about how the Supreme Court of Canada and Federal Court compare in their approach to intervenors.