Cousens v. Canadian Nurses Assn.
1981-03-23
Ontario Board of Inquiry
CHRR Doc. 81-030
Henry P. Cousens Complainant
v.
Canadian Nurses Association Respondent
Hearing Dates: December 15, 16, 17, and 19, 1980
Date of Decision: March 23, 1981
Place: Ottawa, Ontario
Before: Ontario Board of Inquiry, E.J. Ratushny
Appearances by: Mr. Tom Lederer, Counsel for the Ontario Human Rights Commission Mr. Hynna, Counsel for the Canadian Nurses Association
LANGUAGE — French language proficiency required in employment — RACE, COLOUR AND PLACE OF ORIGIN — definition of ancestry — COMPLAINTS — amendment to include additional allegation — JURISDICTION — jurisdiction limited to original allegation
Summary: Mr. Cousens filed a complaint of discrimination on the basis of ancestry when he was dismissed from his job of seven years. The job, that of Administrative Officer for the Testing Service of the Canadian Nursing Association, was eliminated in an administrative restructuring, and replaced by a similar position requiring a candidate "fluently bilingual and preferably Francophone". Mr. Cousens was an Anglophone who had had some French language training but was not fluent in French. Preference for a Francophone was determined to mean the candidate's mother tongue was French and this requirement was found to be discriminatory. Furthermore, fluency in French did not appear to be necessary for the job, but seemed to be a requirement inserted to improve the Association's chances of selling its French language examinations to the Québec Order of Nurses. The Canadian Nurses Association was ordered to pay Mr. Cousens three months' salary, plus $1,000 in compensation for loss of dignity.
DECISION
[ 1 ] This Board of inquiry was appointed by the Minister of Labour of Ontario on the 15th day of April 1980, in relation to the complaint of Mr. Henry P. Cousens of Ottawa alleging discrimination in employment by the Canadian Nurses Association contrary to the Ontario Human Rights Code, R.S.O. 1970, c. 318, as amended.
[ 2 ] Upon being notified of the appointment of counsel for the Ontario Human Rights Commission and for the Respondent, the Chairman contacted them with a view to establishing dates for the hearing which would be mutually convenient to the parties. (Mr. Cousens was not personally represented by counsel.) The date of October 21st, 1980 was agreed upon and formal notices of hearing were issued. Subsequently, a request was made by Commission counsel that the hearing be postponed until December. With the agreement of both counsel, the date of December 15th was set for the hearing and it did, in fact proceed, in Ottawa, on the 15th, 16th, 17th and 19th of December.
[ 3 ] The complaint of Mr. Cousens alleged that he was discriminated against in his employment because of his ancestry, in violation of section 4(1)(b) of the Code.
[ 4 ] At the outset of the hearing, counsel for the Commission indicated that, in addition to "ancestry," the Board would be asked to deal with two additional grounds of discrimination which are prohibited by section 4(1)(b), namely, "nationality" and "place of origin." Counsel for the Respondent immediately raised the objection that the complaint had only specified "ancestry." It was argued that a respondent could be seriously prejudiced by coming to a hearing prepared to answer to a complaint on one ground, only to be met by evidence and argument in relation to a separate category of discrimination under the Code.
[ 5 ] In ruling on this objection, the Board recognized the validity of the contention that prejudice could result. However, it was pointed out that section 14c. of the Code suggests that the mandate of a board of inquiry might well extend beyond the specific ground of contravention alleged in the complaint:
14c. The board after hearing a complaint, (a) shall decide whether or not any part has contravened this Act: [Emphasis added.]
In other words, the Board is required not merely to decide upon the specific ground of discrimination which has been alleged, but to hear the circumstances of the complaint as presented by the parties and decide whether or not any party has "contravened this Act." The written complaint is not, therefore, in the nature of an information or indictment in a criminal case. Rather, it serves as general notice to a party in an administrative hearing.
[ 6 ] Of course, these comments do not resolve the question. The complaint still serves the central purpose of satisfying the notice requirements for a "fair hearing" in accordance with principles of Administrative Law. The Respondent only received notice a few days before the hearing that these additional grounds would be raised. Taking this into account, the Board ruled that it was prepared to grant an adjournment to enable counsel for the Respondent to conduct any further preparation which he might consider to be necessary as a result of the untimely notice in relation to these additional grounds. No such adjournment was sought.
[ 7 ] Nevertheless, in final argument, Mr. Hynna returned to his original objection and argued that the Board did not have jurisdiction to deal with these additional grounds. In his submission, a board of inquiry may consider only the specific ground indicated in the written complaint itself. Therefore, it was argued, if at any time subsequent to the appointment of a board of inquiry, another ground of discrimination becomes apparent, that additional ground can only be considered if the Minister of Labour makes another appointment of a board specifying the additional ground.
[ 8 ] This Board cannot accept that argument. Section 14b(6) which deals with the jurisdiction of a