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Mr. K. Maclean and Ms. M. Beaumont for the Applicant

Ms. I. Khan for the Respondent

Judgement delivered January 7, 2016


LANCHBERY, J. (Orally)

I begin by thanking counsel or their excellent Briefs and oral submissions in this matter. As I stated during the hearing, this case has a very unique set of facts.

The standard of review is reasonableness and it was agreed by counsel, given the special skill and knowledge of Adjudicator Walsh, that a high degree of deference is owed to her decision.

The facts have been set forth in the briefs of The parties and the decision of Adjudicator Walsh, so I will not delve into them in any great detail as the parties are well aware of the positions they have taken in this matter and there will be a few of those facts that I consider in this endorsement.

The legislation is Section 37.1 of the Manitoba Human Rights Code which says, in sub (1):

"When a settlement offer is made After an adjudicator is appointed to hear the complaint, the chief Adjudicator must designate a different member of the adjudication panel to determine if the settlement offer is reasonable."

And sub (2):

"If a complainant rejects a Settlement offer that the Adjudicator designated under Subsection (1) considers to be reasonable, that adjudicator must terminate the adjudication to extent that it relates to the parties to the settlement offer."

As we have said, the standard of review is reasonableness and what I must determine is whether the decision of Adjudicator Walsh fell within a range of possible acceptable outcomes which are defensible in respect of the facts and the law.

Adjudicator Walsh, at paragraph 22 of her decision, states as follows:

"In making a determination under s.37.1 an adjudicator must also bear in mind the underlying purpose of the Code itself. Determining that a settlement offer is reasonable has the effect of terminating the adjudication of a complaint which the Commission has determined should be resolved by way of adjudication. A determination that an offer under s.37.1 is reasonable, therefore, must be based on a determination that the offer approximates what an adjudicator would award having regard to the purpose of the Code."

Again, I find the parties were in agreement with these principles outlined in the comments above.

At paragraph 44 of her decision the adjudicator states:

"An adjudicator proceeding under s.37.1 cannot consider competing statements of fact or allegations since to do so would be inconsistent with the accepted test of assuming that the allegations set out in the complaint are proven."

The applicant takes issue with this conclusion as it limits the ability of an adjudicator to consider all the facts in order to properly assess its position.

The respondent is clearly of an opposite mind as this Is not in keeping with the previous decisions other adjudicators appointed under the Code have made.

The settlement offer in this matter is set out in paragraph 52 of the decision, as well as the specific remedial orders are set out in paragraph 53. At paragraph 54 of the decision, Adjudicator Walsh states:

"An adjudicator proceeding under s.37.1 must consider the respondent's offer in the context of each remedial sub-heading under s.43(2). This is not to say that in every case an offer will only be determined to be reasonable if it offers something under each heading. Reasonableness will still be assessed having regard to the specific allegations in the complaint. Not every contravention of the Code requires the same set of remedies."

I will summarize the applicant's argument as follows:

  1. The adjudicator failed to allow information which would have clarified the terms of the settlement offer.

  2. By failing to do so, it would be impossible for any adjudicator to reach a decision because vital information would not be present, other than the complaint itself and the offer.

  3. That reinstatement would not have been a remedy available as the position in question had been filled and by the operation of Section 44 of the Code, could not be considered by any adjudicator.

  4. That the financial compensation package was reasonable, but that proper consideration of the package could not occur due to the refusal of the adjudicator to consider additional information.

  5. That the adjudicator's stated reluctance to proceed with caution not to deny a complainant a full hearing was an error in law, as the process was designed to promote settlement and that the complainant did not have a right to a full hearing.

Again, as this is an endorsement, the respondent's position that the decision was well within the range of the possible acceptable outcomes that are defensible in respect of the facts in law and it confirmed the position the respondent forth in his brief.

It is important to review the conclusion of the Adjudicator Walsh to determine whether outcome indeed was within the range of possible acceptable outcomes, defensible in facts and law. At paragraph 120 she states:

"A determination under s.37.1 is a summary process which is based on limited information. Accordingly, it will not be uncommon for an adjudicator to find that he or she cannot determine the reasonableness of an offer not because the parties are not proceeding on the appropriate legal principles but simply because there are gaps in the information the adjudicator can consider in this process. I have found many examples of such gaps in this case."

Adjudicator Walsh found that she did not have the information to make decisions on three of the headings set forth in Section 43(2) (a) to (e), therefore was this a reasonable conclusion?

I disagree with the applicant that Adjudicator Walsh's decision had to be either an outright yes or an outright no, she had to make a decision. A decision on lack of information to make a decision is well within her authority in this matter and in itself is that she has made a decision.

Adjudicator Walsh properly recognized that if the parties had filed an agreed statement of facts, these facts would have been considered as part of her decision, however I find no reference to an agreed statement of facts in this case. There may have been facts that, if agreed, may have assisted Adjudicator Walsh in reaching her decision but now to suggest that Adjudicator Walsh should have permitted additional information to be entered into the record, would have been an error in law not supported by the fact that it had to be what had been in the complaint itself.

As the Code is remedial in nature, the question before Adjudicator Walsh is whether or not the offer addressed the remedial function. She found she could not.

However, there was nothing to say that the applicant could, in its offer, included all background material to support the financial compensation package, the public interest function and why reinstatement should not be considered in this case.

As agreed, Section 37.1 provides scant direction to the adjudicator, it provides equally no information as to what a settlement offer may contain. In the event that the applicant had provided this information within its settlement offer, the outcome may have been different. If Adjudicator Walsh had refused to consider this information, again, that would be a very different set of circumstances.

In the Section 37.1 adjudication, the offeror is under the obligation to make an offer that an adjudicator may find sufficient to make a determination of reasonableness. That burden is on the offeror. If the offeror meets its burden and the offer is found to be reasonable, the full adjudicative process is determined. The claimant has absolutely no say in what follows after that.

I find that the reluctance expressed by Adjudicator Walsh to accept any offer that would result in the termination of the claim does not support the position of the applicant that in all circumstances the limitations in this process would mean that you could not find any offer reasonable. What Adjudicator Walsh said was that the gaps in the information were such that she could not find this offer reasonable.

Adjudicator Walsh determined that the offeror had not met its burden as she did not have enough information. In a summary proceeding, that is a reasonable outcome based upon the fats and the law in this case. These proceedings are of a complex nature with many live issues. It would not be unexpected that a decision could not be made in these circumstances. Therefore the decision of Adjudicator Walsh is confirmed and the applicant's motion for judicial review is denied.

I would also say, just as somebody on the outside that is not involved in the rest of the process, I think parties need to look prior to February hearing dates at some form of settlement in this matter. I do not believe the fact circumstances are going to be a slam dunk based on what Adjudicator Walsh was required to decide. This may be in everyone's best interest moving forward. Good afternoon.