Ontario Board of Inquiry
CHRR Doc. 85-062
Samuel Nimako Complainant
v.
CN Hotels Respondent
Before: H.A. Hubbard
PROCEDURE — motion for non-suit — COURTS — board/tribunal proceedings analogous to proceedings in court(s)
Summary: In an interim decision, the Board of Inquiry rejects the Respondent's request that a motion for non-suit be heard and decided without the Respondent being required to elect not to call evidence in the case.
At the close of the Commission's presentation of evidence, the Respondent requested that the Board consider its motion that there was insufficient evidence to establish a case. The Board finds that ordinary civil practice requires that when such a 'non-suit' motion is made, the Respondent is required to elect not to present evidence before a hearing of and decision on the motion is made.
In this case, the Respondent requested that the motion be heard and decided without the requirement of electing not to produce evidence.
The Board finds that the Respondent must withdraw its motion of 'non-suit' or elect to call no evidence. Alternatively, the Respondent can call evidence and the motion will be considered after the evidence is in.
1At the close of the Commission's presentation of evidence the question arose as to the procedure to be followed in respect of a non-suit motion before a Board of Inquiry under the Human Rights Code of Ontario. It was submitted by Counsel for the Commission that, unless the Respondent elects to call no evidence, the decision on the motion ought to be reserved until the Respondent's evidence has been received, and that it is only if the Respondent elects to call no evidence that a decision on the motion is to be made immediately. This submission was supported by oral argument, and copies of the relevant passages of various authorities referred to were provided.
2At the request of Counsel for the Respondent, and with the agreement of Counsel for the Commission, the hearing was adjourned in order to provide an opportunity for written submissions and arguments to be presented, which process has now been completed.
3Counsel for both the Commission and the Respondent took the position that a Board of Inquiry under the Ontario Human Rights Code may adopt such procedures as to it seem proper in the circumstances of the case before it, the decision of the Court of Appeal of Ontario in Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183 (1971 CanLII 341 (ON CA), 22 D.L.R. (3d) 40) being cited in this regard. Although that decision was in respect of the capacity of the Ontario Labour Relations Board to determine its own procedures, it was suggested that a Board of Inquiry under the Human Rights Code is in an analogous position. Moreover, in delivering the judgment of the court Mr. Justice Arnup made several references to administrative tribunals generally, and I am confident that this Board comes within the compass of the following passages taken from his judgment:
In my view there is an important distinction to be made between (i) the laying down of guide lines by the Court for the direction of persons who seek to invoke the jurisdiction of the Court, as to when and how they may do so when they seek to attack orders made by administrative tribunals as being in excess of or without jurisdiction, on the one hand, and (ii) the laying down of guide lines as to the procedures to be followed by those tribunals themselves when an objection to their jurisdiction is made to them. The former is a proper exercise of the Court's function in relation to its own process. The latter, when directed to the processes of an administrative tribunal which has been given exclusive jurisdiction in its own field, is in my view not only unwise but unwarranted.
It is clear that under the Labour Relations Act the Board is master of its own house not only as to all questions of fact and law falling within the ambit of the jurisdiction conferred upon it by the Act, but with respect to all questions of procedure when acting within that jurisdiction. In my view, the only rule which should be stated by the Court (if it be a rule at all) is that the Board should, when its jurisdiction is questioned, adopt such procedure as appears to it to be just and convenient in the particular circumstances of the case before it.
In conclusion, therefore, it is my view that it has been a mistake in the past, and it would be a mistake now, to endeavour to lay down a course of procedure to be followed by the Board when its jurisdiction is questioned and it appears that the matter is one which may perhaps be tested in the Supreme Court. The Board has been entrusted with very wide powers in the labour relations field, and so long as it acts within the ambit of its jurisdiction, it is for the Board itself to decide how it shall proceed. If procedural guide lines of a mandatory nature are to be laid down, they should come from the Legislature and not from the Court.
4As to the appropriateness of the analogy between the Ontario Labour Relations Board and a Board of Inquiry under the Ontario Human Rights Code, it may be observed that Mr. Justice Arnup held applicable to the former the decision of the Supreme Court of Canada made in relation to the latter in Bell v. Ontario Human Rights Commission (1971), 1971 CanLII 195 (SCC), 18 D.L.R. (3d) 1.
5Finally, in Re Toronto Police Commissioners and Ontario Human Rights Commission (1979), 1979 CanLII 1840 (ON HCJ), 27 O.R. (2d) 48, Labrosse J., speaking for the Divisional Court of Ontario in relation to a Board of Inquiry under the Code stated at p. 53 that "The Board has exclusive jurisdiction over the conduct of its procedure and the exercise of its discretion to grant the adjournment is not reviewable by this Court, provided that the Board has not violated recognized principles of fairness ..."
6There being nothing in the Human Rights Code of this province, nor in the Statutory Powers Procedure Act of Ontario, that determines the procedure to be followed by this Board in respect of a motion for non-suit, I am satisfied for the above reasons that such a Board has a discretion to determine its own procedures in this regard, and I now turn to the question as to what those procedures ought to be. Although the procedures to be followed in non-suit motions before the courts have been established, Counsel were unable to find any decision of a Board of Inquiry under the Human Rights Code in which this specific question was considered. It seems well settled that, in a civil action, the decision on such a motion is reserved until the defendant's evidence has been adduced, unless the defendant elects to call no evidence. The position (duly supported by numerous references to judicial authorities) is summed up by Sopinka and Lederman in their text on The Law of Evidence in Civil Cases in this way (at pp. 521–524):
When a plaintiff finishes tendering all of his evidence and has completed his case, defence counsel, if so disposed, may move for a non-suit on the ground that there is insufficient evidence to give rise to a reasonable inference in the plaintiff's favour. The trial judge then must put defence counsel to his election as to whether he wishes to call evidence. If he elects to call no further evidence, the trial judge must then exercise his judicial function and assess the evidence for probative sufficiency. It is rare that a defendant's counsel will elect to call no evidence if he has evidence to call because if the trial judge dismisses his motion for a non-suit, he is precluded from leading evidence for the purpose of raising his defence to the plaintiff's case. Therefore, defendant's counsel must be sure of his success on the motion for non-suit before making such an election. If defendant's counsel desires to lead evidence, the trial judge will not decide the motion at that time, but will reserve the motion until all the evidence in the case is adduced.
In the case where the defendant's counsel elects to call no evidence, the trial judge decides the motion for non-suit at that time. If he concludes that the plaintiff has put forth sufficient evidence to raise a reasonable inference of legal liability, then the judge, if a jury is present, turns the evidence over to the jury to decide the historical facts in question and the inferences arising therefrom. But, if the trial judge gives effect to the defendant's motion, he must dismiss the plaintiff's action, not on the basis of the facts and the burden of proof, but on the ground that the plaintiff has led an insufficient quantum of probative evidence.
In Ontario, if the defendant elects to call and does call evidence, the trial then proceeds normally and when all the evidence of both the plaintiff and the defendant has been put in, the defendant may renew his motion for a non-suit. The trial judge then makes his decision on the non-suit motion on the basis of all the evidence led in the trial. Thus, if the defendant's evidence, in part, assists the plaintiff in establishing a prima facie case, that evidence is to be considered along with the plaintiff's evidence by the trial judge in deciding whether or not there is a sufficient quantum of probative evidence before the court ...
There is an obvious danger which faces a defendant's counsel who moves for a non-suit and elects to call no evidence. If he is successful on that motion, it may only be a Pyrrhic victory, for, if the plaintiff appeals the trial judge's decision granting the non-suit, the Court of Appeal may well find that the trial judge was in error in law, in which case, the defendant now before the Court of Appeal is bound by his election at trial to call no evidence. Accordingly, the only evidence before the appellate court will be that of the plaintiff as the defendant is precluded at this time from calling any evidence. The defendant can only argue that it is not possible for the court to draw a rational inference in favour of the plaintiff on the basis of his evidence. Once the defendant has lost the argument in the appellate court, the court will normally decide the case on the merits on the basis of only the plaintiff's evidence which is the only evidence before it. Of course, the great probability is that the appellate court will find in favour of the plaintiff as his evidence stands uncontradicted.
7In contrast to the procedure in civil actions, a motion by the accused in a criminal trial, made after the prosecution has presented its case, and seeking to have the charge dismissed for want of a prima facie case, does not require an election to call no evidence. If such a motion fails, it remains open to the accused to adduce evidence. (See McWilliams, Canadian Criminal Evidence, 2d ed., pp. 747–748, and the cases cited therein. See also Perry v. The King, 1944 CanLII 392 (PE SCTD), [1944] 4 D.L.R. 327 and Regina v. Cahill (1962), 1962 CanLII 597 (PE SCTD), 132 C.C.C. 252.) Not only does the Criminal Code expressly provide for the right of the accused to make full answer and defence, but it would seem contrary to the very nature of the criminal process in Canada to put the accused to such an election. The motion in a criminal trial is to have the charge dismissed on the ground that the prosecution has not made out a prima facie case, not on the ground that it has not established guilt beyond a reasonable doubt. As was said by Campbell C.J. in Regina v. Cahill (supra, at p. 254): "It is manifestly improper to put an accused person on his defence if the Crown has not produced evidence on which he might properly be convicted." To conclude that the accused's failure to establish at that stage of the proceedings that there is no prima facie case should preclude him from subsequently adducing evidence that would establish a reasonable doubt as to his guilt would be glaringly inconsistent with the standard of proof in criminal cases and would seem otherwise totally unacceptable.
8While both counsel have indicated agreement with all of the foregoing, counsel for the Commission is of the view that the present proceedings are more properly characterized as civil proceedings. He suggests that the practice developed at common law and applied in the civil courts is that which ought to be adopted by this Board. Counsel for the Respondent, of course, takes the opposite view and urges the adoption of the practice followed in criminal trials. The basis of her submission is the presence both in the Human Rights Code, 1981 and in its predecessor, the Ontario Human Rights Code (R.S.O. 1980, c. 340), of provisions containing language consistent only with a criminal process. (See s. 43 of the 1981 Code and ss. 21, 22 and 25 of the 1980 Code.) However, as pointed out by Counsel for the Commission, those provisions are collateral to the provisions dealing with the establishment, functions and powers of Boards of Inquiry. They lead to proceedings by way of an information under Part III of the Provincial Offences Act (R.S.O. 1980, c. 400) that are heard and disposed of, not before a Board of Inquiry, but before a Provincial Offences Court presided over either by a justice of the peace or by a Provincial Court Judge. (See the Provincial Offences Act, ss. 1(1)(b), (c), (d) and (e), 24(1) and 30.) The powers of a Board of Inquiry are derived variously from s. 19 of the 1980 Code and ss. 38 and 40 of the 1981 Code. They contain nothing suggestive of a criminal process.
9Those provisions of the Human Rights Code that may lead to the appearance of an alleged offender before a Provincial Offences Court are clearly intended to demonstrate society's abhorrence of certain behaviour, and its will to deter such behaviour by the imposition of a fine that is recoverable by the state, not by the victim. In contrast, the power (and obligation) of a Board of Inquiry is to require a party who has injured another through contravention of the Act to compensate the injured person, or to otherwise rectify the injury caused. Simply because the Code provides that the same conduct that may result in proceedings before a Board, brought with a view to compensating the victim of a contravention of the Act, may also result in criminal or quasi-criminal proceedings before some other tribunal, it does not follow that the former proceedings are criminal or quasi-criminal in character as well. An analogy that springs to mind concerns a battery: an action for damages for the intentional tort of battery is not a criminal or quasi-criminal procedure simply because the defendent might also be charged with a crime.
10It is clear that contraventions of the Human Rights Code may cause harm to individuals as well as constitute offences, and it is the function of Boards of Inquiry to redress the former by ordering compliance with the Act, or compensation to the injured victim, or such other rectification of that injury as may be appropriate. Indeed, as Counsel for the Commission has pointed out, the Legislature of Ontario has preempted the evolution of a common law remedy in torts for personal injuries of the kind here in question by providing exhaustively in its Human Rights Code for the manner in which victims of such conduct may obtain redress. (See Board of Governors of Seneca College v. Bhadauria, 1981 CanLII 29 (SCC), 124 D.L.R. (3d) 193, 2 C.H.R.R. D/468) Thus, Boards of Inquiry under the Code have been established to perform a function that might otherwise have been assumed by the civil courts through the simple device of expanding the never-closed categories of civil wrongs. Not only is there nothing in the relevant statutes that points towards the characterization of their process as being criminal or quasi-criminal, but the thrust of the legislation suggest that Boards of Inquiry are analogous to civil courts.
11Counsel for the Respondent made the further submission that, even should these proceedings be characterized as fundamentally civil in nature – and I would so characterize them, the board is master of its own process and should be guided by what appears to be convenient and fair in the circumstances of the case before it. With this, it seems to me, there can be no disagreement. However, in determining what is convenient and fair, it must be remembered that the practice in the civil courts did not develop in a vacuum, nor without regard to what is fair and convenient. That practice, it seems to me, ought to be followed by a Board of Inquiry unless the particular circumstances of the case before it would make it unfair or inconvenient to do so.
12In approaching this question it is important to bear in mind that it is only upon the completion of the whole case that a tribunal is in a position to weigh the evidence and come to a decision, and it may happen that evidence adduced from witnesses called on behalf of the defendant (or an accused) tips the scales against him or her. Having regard to the difficulties complainants face in getting access to all the information relevant to establishing discrimination, this may well be more likely to be the case in hearings under the Human Rights Code than in civil actions generally. Unlike the criminal process, which pits the state against an individual who risks criminal sanction, and who must be found guilty beyond a reasonable doubt, a civil action involves the resolution of conflicting individual interests on a balance of probabilities. In that context, it seems only fair that the defendant must make up his or her mind whether to close the case after the plaintiff's evidence is in, thus thwarting the plaintiff's access to evidence that might have made the latter's case, or to proceed to call witnesses at the risk of assisting the plaintiff's case. Otherwise, the defendant would appear to be saying to the tribunal: "I want you to decide this case without hearing all the evidence, some of which might be helpful to the plaintiff, but only if you decide it in my favour, the effect of which is to dismiss the action; if you are unprepared to decide in my favour on the basis of the evidence adduced by the plaintiff, then I want you to postpone deciding the case until my evidence is in as well, even though some of it may prove of assistance to the plaintiff." If such a "heads I win, tails I don't lose" suggestion appears unseemly in relation to an action before a civil court, it would seem even less acceptable in a hearing before a Board of Inquiry such as this. In leaving such a Board largely unfettered by rules of evidence, and in permitting it to determine its own procedures, the Legislature appears to have intended it to have very wide powers to gather all the information it feels necessary to come to a proper conclusion regarding the complaint before it. For this reason I would be most reticent to adopt a procedure that would require me to reach a decision without hearing all the evidence available, which decision would be a final disposition of the case if it were favourable to the respondent, but would have no other effect than to interrupt the proceedings if it were favourable to the Commission and the complainant. My reticence in this regard is strongly re-inforced by the views expressed in two English decisions dealing with similar Boards. In Oxford v. Department of Health and Social Security, [1977] I.C.R. 884, Phillips, J. stated at pp. 886–887:
[The complainant] says that the onus of proof is – or, if it is not, ought to be – upon the respondent [employer], because the applicant cannot know all the facts and it is difficult for him to make his case. We recognize the difficulties, but there is no doubt that, although the Act of 1975 is silent upon the burden of proof, the formal burden of proof lies upon the applicant. That having been said, it should be recognized that in the course of the case the evidential burden may easily shift to the respondent, and we draw attention to, and would wish to commend, the attitude adopted by the industrial tribunal in this case. In their reasons they said:
At the conclusion of the [complainant's] case, we were inclined to reject his claim on the basis that no case against the [employers] had been established. Nevertheless, bearing in mind the difficulties the [complainant] faced, we decided to hear evidence from the [employers] and to give the [complainant] every opportunity to examine their witnesses and question them on matters he considered relevant.
It seems to us that that was a very proper course to have adopted, and we would recommend it as being the course which in most circumstances is the right course to adopt. It further seems to us that, while the burden of proof lies upon the applicant, it would only be in exceptional or frivolous cases that it would be right for the industrial tribunal to find at the end of the applicant's case that there was no case to answer and that it was not necessary to hear what the respondent had to say about it.
And in Owen and Briggs v. James, [1981] I.C.R. 377, Slynn J. repeated the last point made above by adding:
... [I]t seems to us that an answer will normally be required from the respondent, and that cross-examination of the respondent's witnesses may be an important part of the case.
These quotations were repeated with approval by McDonald J. in Re Base-Fort Patrol Ltd. and Alberta Human Rights Commission, 1982 CanLII 1246 (AB QB), 143 D.L.R. (3d) 334 at 340–341 [(1983), 1982 CanLII 4907 (AB QB), 4 C.H.R.R. D/1200], in relation to Boards of Inquiry under the human rights legislation in Alberta, the Individual Rights Protection Act, R.S.A. 1980, c. I-2.
13The view that I have come to is that, unless there is something exceptional in the circumstances before it, a Board of Inquiry under the Human Rights Code ought not to entertain a non-suit motion without putting the respondent to an election, and I find nothing in the circumstances of this case rendering it exceptional in this respect. Counsel for the Respondent suggested that "in view of the weakness of the Complainant's case ... it would be a reasonable exercise of the Board's discretion to hear arguments on the non-suit motion without putting the Respondent to an election." No one participating in a hearing can fail to form impressions as the evidence is being adduced; but until arguments are heard and duly considered it would seem improper to make a finding that the Commission's case is "weak" and that therefore the Respondent may pursue a non-suit motion without having to elect to call no evidence. In any event, no respondent would raise the matter of a non-suit unless convinced that the case against him or her is at least "weak" (indeed, it would appear rash to make such a motion unless convinced that the case was non-existent); and to submit that that is a basis for dispensing with the need to be put to an election is to beg the question. It would result in an invariable rule to the effect that the practice in such matters before Boards of Inquiry is that an election to call no evidence is not to be made by respondents upon motions to non-suit.
14Counsel for the Respondent maintained as well that, whereas the procedures she urged would not be unfair to the other party (which proposition, for the reasons set out in the extracts last reproduced, I cannot accept), it would be unfair to the Respondent to require it to call evidence prior to deciding upon the non-suit motion because this would cause the Respondent great expense which could otherwise be avoided. There is always some expense which could otherwise be avoided. There is always some expense involved in mounting a defence, whether in actions before the civil courts or in hearings before a Board such as this, and if that were the criterion for deciding whether fairness dictates that a respondent should be spared having to make an election, the invariable rule referred to would again emerge, carrying with it the implication that the practice in the civil courts is unfair.
15I am unprepared to suggest that in no case could the element of expense to the respondent constitute a circumstance so exceptional as to warrant dispensing him or her from making an election prior to the disposition of a non-suit motion; that would be for a particular Board to decide in all the circumstances of the case before it. However, there is nothing in the circumstances of the present case to persuade me to dispense with such an election.
16For all of these reasons, I have decided that the Respondent must either withdraw its motion of non-suit, or else elect either to call no evidence, in which event arguments will be heard and the case finally disposed of, or elect to call evidence, in which case the motion will be considered after the Respondent's evidence is in.