CHRR Doc. 83-015
Cindy Bosi
Complainant
Township of Michipicoten and K.P. Zurby
Respondents
January 17, 1983
Place:
Wawa,Ontario
Before:
Ontario Board of Inquiry, Martin L. Friedland
Appearances by:
Robert Rueter, Counsel for the Ontario Human Rights Commission and Cindy Bosi
Alexander C. Harry, Counsel for the Township of Michipicoten and K.P. Zurby
FAMILY STATUS — marital status definition not included in human rights legislation — BONA FIDE OCCUPATIONAL QUALIFICATION — absence of conflict of interest for clerk
Summary: The Board of Inquiry dismisses the complaint in which Cindy Bosi alleged that she was refused employment as an account clerk with the Township of Michipicoten because her husband was also employed by the Township as a police officer.
The Board rules that the prohibition against discrimination on the basis of marital status does not encompass this situation where the refusal to employ is not because Ms. Bosi is married but because she is married to a particular person.
In addition, the Board of Inquiry finds that under Section 4(6) of the Ontario Human Rights Code marital status can he a bona fide occupational qualification and in this case the absence of a conflict of interest is a bona fide occupational requirement. In the Board's view, a potential conflict of interest could arise if Ms. Bossi were in the position of processing her husband's expense claim forms or having access to management documents with respect to salary negotiations in which her husband represents the Police Association.
On these grounds, the complaint is dismissed.
I
1The Township of Michipicoten, better known as Wawa, is a mining community north of Lake Superior. In August, 1979 the Township created a new position in the Township office involving the handling of all accounts receivable and payable. The position was advertised. A number of persons applied for the job, including the complainant, Mrs. Cindy Bosi, who was then a temporary employee with the Township. She did not get the position, and later complained to the Ontario Human Rights Commission that she was discriminated against because of her marital status and sex, contrary to the Ontario Human Rights Code, R.S.O. 1980, c. 340.
2The alleged basis of the complaint was that the Clerk of the Township, Kenneth Zurby, did not recommend her because her husband was then employed with the Township police force.
3I was appointed on November 24, 1981 by the Minister of Labour as a Board of Inquiry to hear and decide the complaint. A hearing into the complaint was held in Wawa on September 1, 2 and 3, 1982.
II
4At the outset of the hearing Counsel for the Respondents raised the preliminary objection that this Board has no jurisdiction to hear the matter because s. 38(1) of the 1981 Human Rights Code, which replaced the earlier Ontario Human Rights Code and which came into force on June 15, 1982, requires that "the hearing shall be commenced within thirty days after the date on which the members were appointed." A hearing was not held within thirty days of my appointment. There was no such requirement in the earlier legislation under which this Board was appointed. Is the new requirement applicable to Boards appointed before June 15, 1982?
5I do not believe that the Legislature could have intended that the thirty-day requirement be applicable to Boards already appointed. To do so would mean that many Boards which had not yet held their first hearings would automatically be cancelled. The result would be that complainants seeking a fair and expeditious hearing of their complaints would feel that they had received the opposite result. Surely, such an interpretation should be avoided.
6Counsel for the respondents, recognizing the difficulty in his position, does not argue that the provision is fully retroactive. Instead, he argues a more moderate position, that is, that the thirty-day period applies to old Boards, but does not start to run until June 15, 1982, the day the new legislation came into force. In my opinion, however, either the legislation applies to old Boards or it does not. There is no justification for the Board adopting the middle position suggested by the respondents, however reasonable it might have been for the Legislature itself to have adopted ft. The legislation says "thirty days after the date on which the members were appointed." It does not say "thirty days after the date on which the legislation comes into force for Boards appointed before the new legislation came into force."
7In any event, even if I am wrong in my interpretation, the section should not be interpreted to apply to a case such as this where all parties and the Board agree on a specific date for a hearing. No doubt future Boards in other cases will have to grapple with this provision.
III
8Eighteen persons applied for the position. The Township Clerk, Kenneth Zurby, who impressed me as a conscientious and able administrator, placed the names of three persons, one of whom was the complainant, Cindy Bosi, before the Township Council, which was to make the decision. Mr. Zurby recommended that Doreen Pavlic be hired and Council accepted his recommendation.
9There were significant conflicts in the evidence on what led to the hiring of Doreen Pavlic. In my view Miss Pavlic's qualifications were sufficiently superior and Mrs. Bosi's conduct when previously employed with the Township sufficiently questionable that Miss Pavlic would have received the position whether or not Mrs. Bosi's husband worked for the police force. That should not end the matter, however, because if Mr. Zurby in fact improperly discriminated against Mrs. Bosi this Board should so find, whether or not the result would have been different if there had not been discrimination. The absence of causation would affect the remedy, but not the finding of discrimination.
10I find that Mr. Zurby did, in fact, take into account Mrs. Bosi's husband's position with the police force. Mr. Zurby was, and is, concerned about relatives working for the Township. From his past experience in this and other municipalities he feels that the hiring of relatives can create difficulties. That very summer he had been aware of criticism within the Township when a senior Township employee had hired his son for the summer. This was Mr. Zurby's personal view and not a Township rule. Indeed, it was not even a rule for Mr. Zurby. It was a factor he took into account. Section 4 of the Ontario Human Rights Code, R.S.O. 1980 states that no person shall "refuse to train, promote or transfer an employee" because of a number of prohibited grounds, including "marital status." Mr. Zurby's conduct did not amount to a "refusal"; rather, it was a factor in his decision. Is this covered by the word "refusal"? I believe that the section should be interpreted to cover such conduct. Otherwise, persons could defeat the object of the legislation by simply modifying their method of discrimination.
IV
11The key question in this hearing is the scope of the words "marital status." It is not defined in the old legislation. Should it be confined to the marital status of the spouse refused the position, or should it be extended to include a case such as this where the refusal was to hire a person who was married to a particular person? The former is a more natural meaning of the words "marital status" and I note that the 1981 Act so defines the words, that is, "the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage."
12The words "marital status" could, however, be given the wider interpretation. Some American cases have so interpreted comparable legislation: see Kraft Inc. v. State of Minnesota (1979) 284 N.W. 2d 386 (S.C. Minn.); Thompson v. Board of Trustees, School Dist (1981) 627 P. 2d 1229 (Sup. Ct. Montana); cf. Yuhas v. Libby-Owens-Ford Co. (1977) 562 Fed. Rep. 2d 496 (U.S.C.A.; 7th Cir.). Should this Board adopt the wider interpretation? I think it should not.
13The issue of hiring relatives is a controversial one. Some employers do not feel it is desirable to hire close relatives of persons already working for the employer. Others take exactly the opposite approach. The largest employer in Michipicoten Township (an iron ore company), for example, specifically gives preference in hiring summer employees to children of employees. There does not appear to be a clear consensus on the issue of nepotism, such as exists in Ontario on other forms of discrimination. No doubt the absence of a consensus on the issue was the reason why the Legislature provided in s. 23(d) of the new 1981 Human Rights Code that "The right under section 4 to equal treatment with respect to employment is not infringed where ... an employer grants or withholds employment or advancement in employment to a person who is the spouse, child or parent of the employer or an employee." Looking at subsequent legislation to assist in the interpretation of earlier legislation is not always fruitful, although it should be noted that the Ontario Court of Appeal did it very recently in O'Malley v. Simpsons-Sears Ltd., released on August 12, 1982 [1982 CanLII 4911 (ON CA), 3 C.H.R.R. D/1071], also interpreting the Ontario Human Rights Code. The problem is that subsequent legislation often can lead to contradictory inferences: that is, that the legislature deliberately codified the earlier law, or that the legislature deliberately changed the earlier law. I find it useful in this case, however, as a clear statement that the present public policy on the issue of nepotism is one of non-interference. If this is so, should this Board extend the meaning of "marital status" beyond its clear and natural meaning? I do not think the Board should do so. To paraphrase Lord Reid in Shaw v. D.P.P. [1962] A.C. 220, this Board should not rush in where the Legislature fears to tread.
V
14Moreover, assuming that "marital status" is to be given a wide meaning, there would still not be improper discrimination in this case. Section 4(6) of the Act provides that the provisions "relating to any discrimination, limitation, specification or preference for a position or employment based on age, sex or marital status do not apply where age, sex or marital status is a bona fide occupational qualification and requirement for the position or employment." The absence of a potential conflict of interests should be considered a "bona fide occupational qualification and requirement".
15There was a substantial potential conflict of interest in this case, about which Mr. Zurby was properly concerned. The Township office handled much of the administrative work of the police force, a sensible arrangement, in my opinion. If Mrs. Bosi was appointed to the position of accounts clerk she would be processing her husband's expense claims. Moreover, she would have access to the Police Commission documents because the typing in the township office was shared from time-to-time, by all staff persons. The Police Commission documents included such sensitive items as disciplinary matters and salary negotiations, and Mrs. Bosi's husband played an important role in salary negotiations on behalf of the Police Association. It would be unreasonable not to be concerned about substantial conflicts of interest. The Ontario Government itself in its Manual of Administration (dated April 6, 1981), for example, specifies that "spouses shall not occupy positions: in the same immediate work area; under the same supervisor; or where one spouse supervises the other."
VI
16The Commission also bases its complaint on discrimination because of sex, in that the establishment of a policy against hiring spouses of existing employees would harm women more than men. There was, however, no such blanket rule in the Township. Even if there were, there is no evidence that in cases such as this it would affect females more than males.
VII
17The result is that there will be an order dismissing the complaint against the Township of Michipicoten and its Clerk, Mr. Kenneth Zurby.
ORDER
This matter coming on for hearing on September 1, 2 and 3, 1982, before this Board of Inquiry, pursuant to my Appointment by Robert Elgie, Minister of Labour, dated November 24, 1981, in the presence of Counsel for the Ontario Human Rights Commission and Mrs. Cindy Bosi, the Complainant, and Counsel for the Township of Michipicoten and Mr. K.P. Zurby, the Respondents, upon hearing the evidence adduced by the parties and what was alleged by the parties, and upon the finding of this Board that the complaint was not substantiated. It is ordered that the complaint be dismissed.