Executive Summary: Key Legal and Evidentiary Issues

• Heidi Henkel sought judicial review of a Human Rights Tribunal of Ontario (HRTO) decision that summarily dismissed her discrimination complaints against the Rideau Canoe Club (RCC) for interactions occurring between 2016 and 2018.
• Most of her complaints were found to be filed outside the one-year limitation period, with only the reprisal allegation relating to a no trespass order falling within time.
• All complaints were dismissed on the additional ground that they had no reasonable prospect of success.
• Procedural fairness was challenged on the basis that the HRTO allegedly failed to adequately accommodate her disability-related needs stemming from post-concussion symptoms.
• Alleged adjudicator bias was raised, including claims of fabricated or misquoted evidence and selective referencing of testimony, but the court found these entirely unsupported.
• Reasonableness of the HRTO's decision was contested, particularly regarding the harassment findings and the application of the limitation period.

Facts of the case

Heidi Henkel, self-represented, filed complaints of discrimination against the Rideau Canoe Club (RCC) relating to a series of interactions between herself and club leadership between 2016 and 2018. Among her claims was an allegation that a no trespass order was issued against her as a reprisal for bringing complaints to other sporting organizations. The HRTO referred the application to a preliminary/summary hearing to determine whether the complaints should be dismissed entirely or in part on grounds of delay or lack of reasonable prospect of success.

Throughout the HRTO proceedings, Ms. Henkel requested numerous accommodations for her disability. Many were granted, including a second half-day hearing, breaks during hearings, the assistance of a communication support person, and the ability to make additional written submissions. However, the right of reply to RCC's response to her additional written submissions was not granted, her request to split the second hearing into two two-hour sessions was denied, and she was not permitted to make further written submissions after the hearing was finally closed. After the HRTO dismissed her application in its entirety, Ms. Henkel sought reconsideration, arguing that her post-concussion symptoms were not adequately considered, that technical and pandemic-related issues prevented her from obtaining or presenting relevant evidence, that accommodations were insufficient, and that the adjudicator had misapplied discrimination law. All grounds for reconsideration were dismissed.

Legal issues and grounds for judicial review

Ms. Henkel advanced three grounds for judicial review before the Divisional Court: procedural unfairness due to inadequate accommodation of her disability, a reasonable apprehension of bias on the part of the adjudicator, and unreasonableness of the HRTO's decision. She asked that the dismissal be quashed and the matter continued to a full merits hearing, or alternatively, remitted to the HRTO for a new preliminary/summary hearing with appropriate accommodation.

Court's reasoning and analysis

On procedural fairness, the court found that the HRTO had adequately accommodated Ms. Henkel's disability-related needs. Numerous notices and reminders regarding deadlines for documents and witnesses were sent to her throughout the process. She was given the opportunity to call witnesses, make submissions, and provide written evidence, but did not. The court noted that witness evidence is not required for summary hearings because the applicant's allegations are presumed to be true, making the COVID-19 argument regarding healthcare provider witnesses without merit. The court also found no procedural unfairness in the HRTO's decision not to record the hearing, noting that Ms. Henkel could have requested a recording but did not. The complaint about missing documents from the Record of Proceedings was addressed by adding those documents and granting Ms. Henkel an extension of time to respond to them.

On the issue of bias, the court emphasized that the threshold for establishing bias is high, requiring substantial and cogent evidence against a strong presumption of impartiality. The court found no evidence supporting the allegations that the adjudicator fabricated or misquoted evidence, preferred the respondent's evidence, or selectively referenced testimony. It further held that the adjudicator's failure to include all of Ms. Henkel's evidence in the written decision does not establish bias, as decisions are not required to be a complete recitation of all material submitted.

On reasonableness, the court upheld the HRTO's findings. The adjudicator found that RCC did not breach Ms. Henkel's rights under the Human Rights Code, noting in particular that she had never requested the accommodations from the club that she later claimed to have needed, and that the persons alleged to be the source of discrimination were not affiliated with RCC. The harassment claims — including one based on a smirk — were reasonably dismissed, as such conduct could not, in the adjudicator's assessment, amount to sexual harassment, and the claim was in any event raised outside the limitation period. The court affirmed that all but one incident occurred approximately three years before the complaint was filed. The sole in-time allegation — the reprisal relating to the no trespass order — was unsupported by any evidence and had no reasonable prospect of success, meaning it could not be used to anchor the earlier events within the limitation period. The adjudicator also found that the delay was not incurred in good faith and that the complaints did not constitute a series of events.

Ruling and overall outcome

The Divisional Court dismissed Ms. Henkel's application for judicial review in its entirety, finding that the HRTO's summary dismissal was reasonable and that the tribunal is entitled to deference in controlling its own process. The RCC and the HRTO were the successful parties. Ms. Henkel made no submissions on costs; the HRTO sought costs and was awarded an all-inclusive costs order of $5,000 against Ms. Henkel.