Sandringham Place Inc. v. Ontario (Human Rights Commission)

Decision 1: Defeat the OHRC’s threshold “not reviewable” argument before reaching the merits

The OHRC’s gateway argument was that decisions made under s. 34(1)(d) of the Human Rights Code are not amenable to judicial review — that the Commission has plenary discretion whether to even consider exercising the section. If that argument carried, the entire JR application would have collapsed before any analysis of the underlying decision.

We anchored on first principles: a decision not to do something is a decision; statutorily-conferred discretion must be exercised in accordance with the principles that govern the exercise of any such discretion; and judicial review of statutorily-conferred discretion is the foundational case in Canadian administrative law since Roncarelli v. Duplessis, [1959] S.C.R. 121. The Divisional Court adopted that framing directly (para. 12): “A decision not to do something is a decision, just as is a decision to do something.” The threshold argument fell.

Decision 2: Frame the merits as “irrelevant considerations,” not as a substantive disagreement with the OHRC

The temptation in JR is to attack the underlying decision’s substance. We did the opposite. We anchored on what s. 34(1)(d) actually requires the OHRC to consider:

1. whether the facts complained of occurred more than six months before filing;
2. whether the delay was incurred in good faith; and
3. whether substantial prejudice will result.

The OHRC’s entire stated reason for declining to exercise its discretion was that “the request arrived after the Commission had completed the exercise of its investigative powers” — a procedural / administrative consideration about how far along the investigation had gone, not about any of the three statutory factors. We argued this was the textbook Roncarelli error: the OHRC fettered its discretion by relying on an irrelevant consideration and failed to consider the relevant considerations the statute requires. The Divisional Court adopted that framing in full (paras. 14–15). Once framed this way, the OHRC’s three-sentence decision was self-disqualifying.

Decision 3: Build a parallel procedural fairness ground — do not rely on a single arrow

Patent unreasonableness was our lead argument. But JR applications often fail on a single ground; building two independent grounds is materially safer. We invested in discovery to identify what was actually in front of the OHRC when it made its decision. The Divisional Court ultimately confirmed (paras. 18–19) that the OHRC had information relevant to its discretion that it never disclosed to Sandringham — including information bearing on the very “good faith” and “prejudice” questions the statute required it to consider.

That gave us a second independent ground: even if the patent-unreasonableness analysis had not carried, the procedural fairness breach (failure to give Sandringham notice of the case it had to meet) was a winning ground on its own. The court raised this concern of its own motion: “Sandringham must be given sufficient information that it has a meaningful opportunity to make submissions in relation to the exercise of discretion pursuant to s. 34(1).” Two arrows. Either was sufficient.

1. The most efficient JR challenge anchors on the statute’s own factors, not on the underlying merits. Where a discretionary statutory power lists factors the decision-maker must consider, a brief and conclusory decision that ignores those factors is vulnerable on the Roncarelli v. Duplessis “irrelevant considerations / fetter on discretion” framework. The challenge does not require attacking the merits of the underlying decision — it requires showing that the statute’s own structure was bypassed.

2. Build a parallel procedural-fairness ground whenever the record permits. JR applications often turn on a single ground that may or may not carry on the day. Discovery aimed at what the decision-maker actually had in front of it — and what it did or did not disclose to the affected party — can produce a second independent winning ground (the duty of procedural fairness). This is particularly important where the substantive standard of review is uncertain.

3. Asking for the larger remedy can advance the smaller one. We asked the Divisional Court to quash both the OHRC’s threshold decision and the Board of Inquiry referral. The court granted only the smaller remedy — but the dissent would have granted both. Asking for the maximum remedy disciplined the court’s reasoning on the smaller one and made the relief actually granted more durable. There is no penalty for asking for too much, provided the request is principled.