An application for judicial review of two decisions of the Manitoba Board of Adjudictation which upheld complaints filed by twin sisters that they had suffered discrimination on the basis of gender by being denied an opportunity to try out for the male hockey team at their school. The Court dismissed the application and upheld the decision of the Manitoba Board of Adjudication.

Administrative law – Decisions of administrative tribunals – Board of Adjudication – Human rights complaints – Discrimination – Test – Gender – Judicial review -Jurisdiction of tribunal – Standard of review – Correctness – Reasonableness simpliciter

Manitoba High Schools Athletic Association Inc. v. Pasternak, [2008] M.J. No. 10, Manitoba Court of Queen’s Bench, January 21, 2008, J.G. McKelvey J.

The Applicant, the Manitoba High Schools Athletic Association Inc. (“MHSAA”) had denied the Respondents an opportunity to try out for the male hockey team at their school. The Respondents were directed to play for the female team which had just been formed and did not provide the same challenging level of competitive hockey. The Respondents applied to the Manitoba Board of Adjudication which was established pursuant to the Human Rights Code, and the adjudicator determined that the Respondents had suffered discrimination by virtue of the MHSAA decision. The Applicant contended that the Board of Adjudication committed an error of jurisdiction by not ordering that the MHSAA’s complete internal appeal process be respected and complied with prior to assuming jurisdiction and dealing with the matter on its merits. Additionally, the Applicant based its application for judicial review on seven other grounds.

In determining the applicable standard of review, the Court held that when dealing with those aspects of the adjudicator’s decision related to issues surrounding mixed fact and law, the standard of review was that of reasonableness. Questions of law within the adjudicator’s jurisdiction were considered under the standard of review of correctness.

The Court held that there was no requirement in the Human Rights Code which required the adjudicator to defer to the MHSAA’s internal appeal process. Additionally, the Court noted that the MHSAA appeal process was only available to the school, and not to the Respondents themselves. Accordingly, the Respondents had no method to question the ruling by the MHSAA other than to file the complaint with the Manitoba Human Rights Commission.

The Court rejected the Applicant’s argument that the adjudicator erred in failing to apply the correct legal test in arriving at her conclusion of discriminatory treatment. The Applicants had contended that the test set out in Law v. Canada (Minister of Employment and Immigration), [1999] S.C.J. No. 12 was the appropriate test, and required that in addition to showing differential treatment based upon an enumerated or analogous ground of distinction, the Respondents were required to show that the differential treatment violated their dignity. The Court held that the adjudicator was correct in concluding that the Law test did not apply where the dispute was between private parties, and that the adjudicator was entitled to apply a substantive equality approach, which required that an individual be treated on the basis of that individual’s personal merit, as opposed to personal characteristics such as gender.

The Court held that the adjudicator’s decision was both reasonable and correct in holding that the Respondents should have been allowed the opportunity to try out for the male team as an appropriate method to evaluate their skills and merits as hockey players. The Applicant failed to prove, on a balance of probabilities, that there was a bona fide and reasonable justification for the prima facie discrimination.

With respect to the findings of fact regarding the Respondent’s individual skill level and the level of competition available in the women’s high school hockey league, the Court held that there were sufficient facts to suggest that the Respondents were capable of competing at the elite hockey level in that they played for male teams in the community, and that the female hockey team was developmental in nature, and would not provide the same level of challenge to the Respondents. Additionally, the Court noted that the women’s and men’s games of hockey were substantially different, the primary difference being the allowance of body checking in the men’s game.

With respect to damages awarded for injury to the Respondents’ self respect and dignity, the Court concluded that the $3,500 awarded to each girl as compensation was reasonable, as was the adjudicator’s award of individual hockey instruction and hockey school for each of the Respondents.

In the result, the application for judicial review of the adjudicator’s decision was dismissed.

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