McMinn v. Sault Ste. Marie (City) Professional Firefighters Assn., 1986 CanLII 6521

McMinn v. Sault Ste. Marie (City) Professional Firefighters Assn.

1986-06-06

Ontario Board of Inquiry

Iris McMinn, Janine Bourgeois, and Vera Brooks

Complainants

v.

Sault Ste. Marie Professional Firefighters Association

and

Jack McDermott

Respondents

Date of Complaint: September 22, 1982

Date of Decision: June 6, 1986

Place: Sault Ste. Marie, Ontario

Before: F.H. Zemans

Appearances by: Leslie McIntosh, Counsel for the Ontario Human Rights Commission D.J. McNamara, Counsel for Sault Ste. Marie Professional Firefighters Association

COMPLAINTS — unreasonable delay in proceeding with complaint — HUMAN RIGHTS COMMISSIONS — obligation for conciliation — fairness in investigation of complaint — INTERPRETATION OF STATUTES — repeal and re-enactment — PROCEDURE — delay as abuse of process

Summary: The Board of Inquiry rules on preliminary matters raised by the complaints of Iris McMinn, Janine Bourgeois, and Vera Brooks which allege that they were discriminated against with respect to membership in the Sault Ste. Marie Professional Firefighters Association because of their sex.

Although the Ontario Professional Firefighters Association received notice of the complaints and communicated with the Ontario Human Rights Commission regarding them, this Association was not named as a party in the notice of appointment of the Board of Inquiry. Using its powers under Section 38 of the Code the Board of Inquiry adds the Ontario Professional Firefighters Association as a party to the proceedings.

The Board of Inquiry rejects arguments made by the respondents that the Ontario Human Rights Commission did not follow the procedures of investigation and conciliation in the order specified in the Code and that consequently the Board of Inquiry is improperly appointed. The Board finds that the Ontario Human Rights Commission carried out its duties to investigate and conciliate as required.

The Board also rejects respondent arguments that the events complained of occurred before the new Code was proclaimed and that therefore these complaints should not be heard under it. The Board reviews the pertinent sections of the old and new legislation and finds that the prohibitions are essentially the same. The Board rules that the complaints can be heard under the new legislation.

Finally, the Board rejects arguments that the delay in this case amounts to a lack of due process. The Board finds that the delay has caused no prejudice to the respondent. The Board reviews decisions applying Section 11(b) of the Charter which requires that legal hearings occur ”˜without undue delay' and the doctrine of absence of due process and finds that neither of these entitles the respondents to have the proceedings dismissed because of the Commission's delay.

1On March 17th, 1986, I was appointed to serve as a Board of Inquiry, by the Minister of Labour pursuant to the Ontario Human Rights Code, 1981 (the"Code") to hear the three complaints of Janine Bourgeois, Iris McMinn and Vera Brooks, (the "complainants") against the Sault Ste. Marie Firefighters Association, Local 529 (the "Association") and Mr. Jack McDermott (collectively, the "respondents"). The complainants allege that their right to equal treatment in respect of membership in the Association was infringed on the grounds of sex, contrary to sections 5, 8 and 10 of the Code.

2Since all three complaints not only allege an infringement by the same parties but also have questions of law and fact in common, they were combined to be dealt with in the same proceedings in accordance with s. 31(3) of the Code.

3On April 15, 1986, a preliminary hearing was conducted which forms the subject matter of this interim decision. At the outset of the preliminary hearing, counsel for the respondents requested that the name of the respondent Association be amended to the Sault Ste. Marie Professional Firefighters Association (S.S.M.P.F.A.). The status of the trade union had changed and being no longer associated with the International Association of Firefighters, its name had also changed. The amendment was ordered and local 529 deleted.

4A second preliminary matter concerned the Appointment of the Minister of Labour dated March 17, 1986, which named only the two respondents mentioned above. The three complaints, all dated the 22nd September 1982 named three respondents, the Association, the Association's president, Jack McDermott and the Ontario Professional Firefighters Association, (the "O.P.F.A."). O.P.F.A. had received notice of the complaints as well as the Ontario Human Rights Commission's (the "Commission's") questionnaire and had completed and returned the questionnaire. O.P.F.A. retained counsel jointly with the other respondent and was represented at the fact-finding conference of December 7th and 8th, 1982. It appeared that, during the fall of 1985, there had been some correspondence between counsel for the Commission and counsel for the respondents toward the possibility of discontinuing the proceedings against the O.P.F.A.

5As previously mentioned, my Appointment by the Minister of Labour did not name the O.P.F.A. as party to the proceedings, although it was addressed to the Association, Jack McDermott and the O.P.F.A. The Appointment was not mailed to the address of the O.P.F.A. as set out in their questionnaire filed with the Commission in October, 1982. Although counsel for the respondents was unable to consent to adding the O.P.F.A. as a party, he assured the Board that his preliminary objections would be the same as any preliminary submissions he would make on behalf of the O.P.F.A.

6At the preliminary hearing, judgment was reserved on the issue of adding the O.P.F.A. as a party to this inquiry. It is clear that a board of inquiry has discretion to add a party. As set out in subsections 38(2)(c)(d) and 38(3):

The parties to a proceeding before a board of inquiry are . . .

(c) any person who the Commission alleges has infringed the right;

(d) any person appearing to the board of inquiry to have infringed the right;

(3) A party may be added by the board of inquiry under clause 2(d) or clause 2(e) at any stage of the proceedings upon such terms as the board considers proper.

7Section 38 of the present Code is far broader than section 18 of the previous Code which stated:

18.(1) The parties to a proceeding before a board of inquiry with respect to any complaint are . . . (e) any other person specified by the board upon such notice as the board may determine and after such person has been given an opportunity to be heard against his joinder as a party.

8The present Code has substantially enlarged the discretion of a board of inquiry to add a party by removing the requirement of allowing a proposed party to speak against its joinder as a party.

9In Bahjat Tabar and Chong Man Lee v. David Scott and West End Construction Ltd. (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073, Professor Peter Cumming examined a board's power to add a respondent and the factors to be considered before so doing.

10In that case the two complainants had each sworn two complaints. The second complaints were sworn approximately one year after the first and sixteen months before the hearing. While the first complaints named only a corporation as respondent, the second named both the corporation and its principal, David Scott. It was considered relevant that Mr. Scott had notice of the particulars of the discrimination from the time of the first complaint since he was the principal of the respondent corporation. The complaints were essentially concerned with Mr. Scott, as it was he who dealt with the complainants at all times. Professor Cumming held that the important issue to consider in adding a respondent is the prejudice, if any, to the respondent, resulting from joinder when proceedings have been under way for some time. He found no prejudice to Scott and added him as a respondent.

11Clearly in the case at hand the fact that the O.P.F.A. was not mentioned on the Appointment does not give rise to prejudice of the kind the Board feared in the Bahjat Tabar case. The O.P.F.A. had notice of the complaint from the outset and in fact completed a questionnaire and participated in the fact-finding conference. Although there was some discussion between counsel for the Commission and counsel for the respondents as to whether the complaint against the O.P.F.A. would be abandoned, it seems that in the last letter exchanged on that issue, counsel for the Commission informed counsel for the respondent that she had received no instructions to abandon the complaint against the O.P.F.A. but would inform him of any change in that position. Thus, the O.P.F.A. had no reason to believe the complaint against them had been abandoned or withdrawn prior to receiving the Appointment and the Notice of Hearing dated March 17th, 1986. Counsel for the respondents stated that his preliminary submissions would have been no different had he been representing the O.P.F.A., and, in fact, I learned during the preliminary argument that there was a representative of the O.P.F.A. present. Thus the O.P.F.A. is aware of what took place at that time and has complete familiarity with the proceedings to date. The O.P.F.A. suffered no prejudice as a result of its omission from both the Appointment of the Minister of Labour and the Notice of Hearing and there is no good reason for refusing to recognize them as a respondent in these proceedings. I hereby order the addition of the O.P.F.A. as a party respondent to these proceedings.

12Since the preliminary submissions of the parties are all, to some extent, concerned with the timing and sequence of events, I propose to describe in some detail the events leading up to the appointment of this Board as set out in the chronology agreed to by the parties for the purposes of these preliminary matters.

13The three complainants had been working for the Sault Ste. Marie Fire Department (the "Department") for varying periods of time (Vera Brooks for 11 years, Iris McMinn for 7 ½ years and Janine Bourgeois for 8 months) when, in November, 1979, they filled out union membership cards and were later initiated into the union. In January, 1981 the seniority list for 1981 was drawn up. The complainants grieved the list but the Association refused to process it and they were upheld in that refusal by the Director of Personnel and Labour Relations for the City of Sault Ste. Marie. When the list was posted in May, the complainants again filed a grievance which the Association again refused to process. The complainants at that time also wrote to the O.P.F.A. In October the complainants requested arbitration; this was refused.

14When the 1982 seniority list was posted in January, 1982, the complainants again filed a grievance which was denied at the first stage. At this time the complainants, who had previously contacted the Commission for information, finally arranged a meeting and filed a formal complaint on September 22, 1982.

15The human rights officer requested that the respondents complete a questionnaire which was received October 29, 1982. On November 29, 1982 the officer wrote to counsel for the respondents with the complainants' proposals for settlement. The fact-finding conference took place December 7 and 8, 1982. The proposals made at that time were voted on by the union on December 13, 1982. They were rejected.

16In January and February, 1983, an officer of the Commission contacted the complainants for further information. The investigation dragged on through 2141 years before counsel for the Commission first contacted counsel for the respondents to arrange a date for a hearing. After the Commission rejected a request by the counsel for the respondents to reconsider the decision to request the appointment of a board of inquiry, this Board was appointed by the Minister of Labour.

17Thus, a great deal of time has passed since the events that initially gave rise to these complaints. This gives rise to the objections on the part of the respondents. The first objection, however, is not concerned with the length of time that has passed but rather with the sequence of events. The respondents' objection is that the Commission has not fulfilled its duty to endeavour to effect a settlement. Section 32(1) of the Code clearly states, "Subject to section 33, the Commission shall investigate a complaint and endeavour to effect a settlement."

18Counsel for the respondents submitted that not only does that section impose a duty of conciliation and investigation but it also requires that these acts be done in the order set out in the section. That is, the Commission must complete its investigation before endeavouring to effect a settlement, or, at the very least, upon completion of their investigation and before the appointment of a board of inquiry, the Commission must endeavour to effect a settlement.

19Counsel for the respondents pointed out that the respondents had cooperated with the Commission and that after the fact-finding conference they asked the Commission whether anything further was required of them. There were no futher meetings between the Commission and the respondents. Counsel for the respondents pointed out that the bulk of the investigation had taken place after the fact-finding conference and that, until receiving the chronology of events, mentioned above, one week before the hearing, the respondents had been unaware of the continued investigation by the Commission and had no knowledge of any information the Commission had discovered during its investigation. The respondents argued that they had made full disclosure to the Commission at the fact-finding conference and that since that time the Commission had gathered information of which the respondents were not aware. The respondent's objection was not, however, based on the lack of disclosure, but rather on the fact that the Commission had failed to follow the procedure as stipulated in the Code.

20The facts, as I have reviewed them, indicate that the Commission tried, on two separate occasions to affect a settlement. Before the fact-finding conference they sent a letter to the counsel for the respondents enclosing the complainants' proposals for settlement. At the fact-finding conference, proposals were made that were later voted on by the Association's general membership. The respondents do not deny that the Commission made an effort at conciliation but rather argue that conciliation must be the final step before a board of inquiry is appointed and that, if the Commission continues its investigation, it must make a further effort at conciliation.

21The respondents, while admitting that they had not requested a further meeting in the nine months that elapsed between the time the respondents were first contacted regarding a hearing and the hearing itself, argued that the Commission had a positive obligation to do so and that failure to do so violates the right of the respondents. They also emphasized that, whereas they had not changed their position since the last contact with the Commission, the Commission itself had continued its investigation and must therefore initiate a further attempt at settlement.

22It appears that some of the difficulties arise from the fact that, in this case, the Commission followed a so-called "Rapid Case Process System." As its name indicates, this system is intended to deal more expeditiously with human rights complaints. The Commission interviews complainants and forwards questionnaires to the respondents in which they can set forth their views with regard to the complaint. After receipt of the completed questionnaires, the Commission holds fact-finding conferences, and, if they are unable to resolve the issues, then full investigations occur. This system has the advantage of allowing the facts to be dealt with rapidly and bringing the parties together at an early stage to ascertain if the matter can be settled. It seems highly sensible that, before the Commission invests the time and money required for thorough investigations, they attempt to resolve the disputes. If it appears that settlement is not possible, the Commission undertakes full investigations to determine whether or not to pursue complaints.

23As for the alleged prejudice to respondents, I can not conceive of any. Respondents can, at any time, approach the Commission, either to inform themselves of the results of the investigation or to request a further meeting with a view to settlement.

24The legislation confers on the Commission considerable discretion in the exercise of its powers. Had the Legislature intended to impose a strict duty of complete investigation prior to conciliation, one might expect an explicit expression in the Code of that duty or some mention of the results that would follow should the Commission fail to do so. It seems more likely that the Commission was recognized as the best judge of the usefulness of further conciliation efforts.

25I would refer to the case of Re Civil Service Association of Alberta, Branch 45 and the Alberta Human Rights Commission et al. (1975), 1975 CanLII 997 (AB SCTD), 62 D.L.R. (3d) 531. The Alberta Supreme Court considered an application for mandamus to compel the Alberta Human Rights Commission to perform certain acts. In that case the Alberta Human Rights Commission had failed to commence proceedings to determine whether a hospital was discriminating on the grounds of sex in the matter of wages. The Alberta Commission failed to commence proceedings because they wished to await the decision in a case raising similar issues. At page 537 Mr. Justice Haycraft considered the Commission's duties of conciliation and investigation:

The Commission's duty is a combination of investigation and conciliation, it is the judge of how the duty may best be performed. It may well be that the determination of the other similar case would be the best method of reaching an early conclusion of the complaint. I therefore find that the Commission has not refused to carry out its duty but on the contrary, it is proceeding reasonably to carry out its functions.

26In the instant case, the Commission had clearly attempted to settle on two distinct occasions. When this failed, it continued the investigation in order to determine whether or not to appoint a board of inquiry.

27Far from violating the rights of the respondents, a complete investigation before proceeding to a board of inquiry serves to protect them. A full investigation allows the Commission to fulfill its duty under section 33. That section provides:

33.(1) Where it appears to the Commission that,

(a) the complaint is one that could or should be more appropriately dealt with under an Act other than this act;

(b) the subject matter of the complaint is trivial, frivolous, vexatious or made in bad faith;

(c) the complaint is not within the jurisdiction of the Commission; or

(d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay,

the Commission may, in its discretion, decide to not deal with the Complaint.

28A complete investigation of a complaint may serve to protect a respondent from complaints that the Commission may, under section 33, decline to pursue. There is no duty on the Commission to terminate an investigation before it endeavours to affect settlement. Nor is the Commission precluded from continuing its investigation after an unsuccessful attempt to settle. Counsel for the Commission argued that not only is there no duty to discharge these functions but further that the Commission is not even bound to follow the investigative procedure set out in section 32 in any particular sequence. Counsel submitted that if the duty of conciliation stated in section 32 was a statutory precondition, the legislation would surely have specified the results to follow from a failure to do so. Although the case before the Board raises no such issue, I will admit to some skepticism as to the propriety of the Commission ignoring section 32 entirely and proceeding from a complaint to the appointment of a board of inquiry with neither an investigation nor an attempt at conciliation. The language of section 32(1) clearly requires the Commission to investigate a complaint and endeavour to effect a settlement. These two roles must be undertaken by the Commission and neither can be ignored. Again, in the present circumstances, the Commission adequately performed both its investigatory and conciliatory roles.

29A second issue raised by the respondents was based on the fact that the events complained of occurred prior to the proclamation of the present Code. The complaints allege breaches of sections 5, 8 and 10 of the Code, however all the events complained of occurred prior to the June 15, 1982, date of proclamation.

30Counsel for the respondents argued that the Code prohibits certain forms of discrimination that were not prohibited by the previous Code. It is perhaps useful to compare the different grounds of discrimination prohibited by the Codes.

31The previous Code contained protection from discrimination on the grounds of race, creed, colour, sex, age, marital status, nationality, ancestry and place of origin. The present Code extends the enumerated grounds of protection to include ethnic origin, family status and handicap.

32The present Code brought further changes. It added the right to contract on equal terms, and established provisions protecting against sexual harassment. These are changes to substantive individual rights.

33The sections relied upon by the complainants are the following:

5. Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self governing profession, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, age, marital status, family status or handicap.

6. No person shall infringe or do directly or indirectly anything that infringes a right under this part.

7. A right of a person under Part 1 is infringed where a requirement, qualification or consideration is imposed that is not discriminatory on a prohibited ground but that would result in the exclusion, qualification or preference of a group of persons who are identified by a prohibitive ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or consideration is a reasonable and bona fide one in the circumstances; or

(b) it is declared in this act that to discriminate on such ground is not an infringement of a right.

34Counsel for the respondents was prepared to allow that section 5 is very similar to section 5(1) of the previous Code. That previous section read:

5.(1) No trade union shall exclude from membership or expel or suspend any person or member or discriminate against any person or member because of race, creed, colour, age, sex, marital status, nationality, ancestry or place of origin.

35It must be noted that "trade union" is defined in s. 26(j) of the previous Code as follows:

26.(j) "trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national or international trade union and a certified council of trade unions.

36With this broad definition it seems clear that section 5 of the previous Code would cover the "trade or occupational associations" mentioned in section 5 of the present Code, and thus the respondents in this case.

37Section 5 has therefore remained substantially unchanged. The change in wording would seem to have little impact on its application, and certainly there is no impact on the facts of this case.

38In considering the retrospective application of the Code, regard must be had to the decision of Mr. Justice Montgomery of the Divisional Court in the Royal Insurance Co. of Canada v. O.H.R.C. et al.,1 (1985), 1985 CanLII 2031 (ON HCJ), 51 O.R. (2d) 797. The issue decided in that case was the power of board of inquiry appointed under the Code to review the contents of an insurance contract entered into prior to the proclamation of the Code. The section relied on by the complainant in that case provided the right to contract on equal terms which, as previously mentioned, was a new feature of the present Code.

39In the Royal Insurance case the contract of insurance was entered into on April 19, 1982, approximately two months before the proclamation of the Code. At page 799 of the judgment Mr. Justice Montgomery stated:

The question under the first issue is whether the Code should be applied so as to attach new consequences to an event that occurred prior to its enactment, namely, the entering into of an automobile insurance contract. To apply the Code as such would be to give it retrospective effect. There is a presumption against construing a statute so that it operates retrospectively.

And further, at page 800:

The Code imposes new duties and attaches new disabilities and, as such brings about the application of the presumption.

40The ruling of the Divisional Court was clearly based on the fact that the sections of the Code in question created new substantive rights in respect of the complained act. As is clear in this case, the prohibition against sexual discrimination existed under the previous Code as did the right to membership in a trade union without discrimination on the grounds of sex. Thus at least insofar as section 5 goes, there is no attempt in the present case to assert a breach of rights that were not guaranteed before the Code's proclamation.

41Turning to section 8, which contains the general prohibition against infringing any right guaranteed in Part I of the Code, it seems clear that this is merely a structural change rather than a substantive one. Section 8 guarantees no new rights and imposes no duties. In the previous Code sections guaranteeing rights were phrased as prohibitions against infringing those rights. Thus guarantees were negative, as, for example, provision of former section 4(1)(a) that "No person shall . . . refuse to refer or to recruit any person for employment . . . because of race, creed, colour, age, sex, marital status, nationality, ancestry or place of origin of such person or employee." The present Code changed in the manner in which rights are stated. The present employment provision reads: "Every person has a right to equal treatment with respect to employment without discrimination . . . ". As a general pattern, section 1 through 6 guarantee positive rights and section 8 prohibits the infringement of these rights. This structural change to the present Code makes its provisions clearer and, to a great extent, simplifies them while in no way altering the rights conferred and the duties imposed by the Code. To this extent the ruling in Royal Insurance has no bearing on any retrospective application of section 8.

42Finally, section 10 prohibits constructive discrimination and it has no counterpart in the previous Code. Although constructive discrimination was not explicitly prohibited by the previous Code, a recent decision of the Supreme Court of Canada established that the Code did prohibit such discrimination. O'Malley v. Simpsons-Sears Ltd. (1986) 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102, dealt with a complaint under the previous Code of an employee, who, for religious reasons, objected to an employment rule requiring her to work Friday evenings and Saturdays. The Supreme Court held that while the employee rule and the fact that the store remained open on Saturday were based on business reasons with no intention on the part of the store to discriminate, the effect of the rule was discriminatory. Writing for a unanimous court Mr. Justice MacIntyre stated (at paragraph 24766):

The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator but rather to provide relief for the victims of discrimination. It is the result or the effect of the action claimed of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties or restrictive conditions not imposed on other members of the community, it is discriminatory.

and further at paragraph 24772:

A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, "No Catholics, or no women or no blacks employed here." There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force . . . I am of the opinion that this court may consider adverse effect discrimination as described in these reasons a contradiction of the terms of the Code.

43O'Malley clearly establishes that the previous Code prohibited constructive or adverse effect discrimination, even in the absence of a specific provision such as section 10. Therefore section 10 does not confer any new rights but merely states that which the Supreme Court found to exist under the previous Code. Thus, in my opinion relying on section 10, the complainants in this case are not asserting rights that did not exist prior to the proclamation of the present Code.

44To further clarify the relationship between the previous Code and the present one, it is useful to consider the Interpretation Act, R.S.O. 1980, c. 215, and specifically its provisions regarding the effect of the repeal of an act on proceedings instituted under that act. Section 14 provides:

14.(1) Where an Act is repealed or where a regulation is revoked, the repeal or revocation does not, except as in this Act otherwise provided

(a) revive any Act, regulation, or thing not in force or existing at the time which the repeal or revocation takes effect;

(b) affect the previous operation of any Act, regulation or thing so repealed or revoked;

(c) affect any right, privilege, obligation or liability acquired, accrued or accruing or incurred under the Act, regulation or thing so repealed or revoked;

(d) affect any offence committed against any Act, regulation or thing so repealed or revoked, or any penalty or forfeiture or punishment incurred in respect thereof;

(e) affect any investigation, legal proceeding or remedy in respect of such privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty forfeiture or punishment may be imposed as if the Act, regulation or thing had not been so repealed or revoked.

2. If other provisions are substituted for those so repealed or revoked,

(a) all officers and persons acting under the Act, regulation or thing so repealed or revoked, shall continue to act as if appointed under the provisions so substituted until others are appointed in their stead;

(b) all proceedings taken under the Act, regulation or thing so repealed or revoked, shall be taken up and so continued under and in conformity with the provisions so substituted, so far as consistently may be;

(c) in the recovery or enforcement of penalties and forfeitures incurred, and in the enforcement of rights existing or accruing under the Act, regulation or thing so repealed or revoked, or in any other proceeding in relation to matters that have happened before the repeal or revocation, the procedure established by the substituted provisions shall be followed so far as it can be adopted.

4514(1)(b) ensures that the previous operation of an act will be unaffected. 14(1)(c) provides that the rights that arose under the previous act are also unaffected and 14(1)(e) protects investigations or legal proceedings which had commenced under an earlier act and which may proceed as if the earlier act had not been revoked. When other provisions are substituted for those revoked, proceedings are, so far as possible, to be in conformity with the substituted provisions, and the procedure established by the new act is to be followed to the greatest extent possible.

46The fact that the previous Code was revoked before the complainants initiated their proceedings seems to strengthen the argument of the counsel for the Commission that they should be able to proceed under the present Code. It is clear that the repeal of the previous Code did not deprive the complainants of their rights, nor did it deprive the Commission of its duty to investigate the complaint and set in motion the mechanism to resolve the dispute.

47Counsel for the Commission submitted that, in the event of a ruling that sections 5, 8 and 10 did confer new substantive rights and the complainants could not rely on them since the subject matters of their complaints were based on events that occurred prior to the proclamation of the present Code, the Board should nonetheless find that the complainants can pursue their complaints. This proposition was based on the fact that the Board is faced with a continuing complaint the subject matter of the complaint having actually continued to today so as to bring it under the present Code. It is clear from the foregoing that there is no need to decide this issue, and I decline to do so.

The Issue of Delay:

48The final preliminary concerns delay. Counsel for the respondents submitted:

. . . the delay in this particular case results in an absence of due process, and that the absence of due process results in a denial of natural justice to the respondents. (Transcript, p. 47)

Because of the decision of the Divisional Court in Re Commodore (1984), 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833, Counsel for the respondents declined to rely on Charter section 11(b) in support of his delay argument. Instead, counsel relied on subsection 23(1) of the Statutory Power Procedures Act, R.S.O. 1980, c. 484, which provided this Board with the following, specific power:

23.(1) a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

While this subsection provides obvious jurisdiction to dismiss a complaint for reason of delay, I am not convinced that the Divisional Court in Re Commodore, supra, has precluded the use of Charter s. 11 for that same purpose. In Re Commodore the extent of the Court's reasons with regard to the applicability of s. 11 to proceedings under the Code's predecessor was as follows at D/2835, para. 23161:

. . . While the Charter should be given a broad and liberal interpretation, we are not convinced that a decision of the Board under s. 19 of the Act that finds a contravention of the Act and awards compensation, falls within s. 11(d) of the Charter which relates to being charged with an offence. We do not need to decide the effect of the Charter on a charge laid under s. 21 of the Act.

It is clear that the Court declined to decide the applicability of Charter section 11 to what was then the "Offence" section of the predecessor Code, section 21. (Section 43 is now the "Penalty" section of the 1981 Code.) At the outset of a hearing it is in my opinion presumptuous to assume that a possible contravention of the Code would not result in a prosecution pursuant to section 43. It would be equally presumptuous to assume at this stage that Charter section 11 is inapplicable. For these reasons I will examine the issue of delay in light of both Charter section 11 and the doctrine of abuse of process.

49In Re R. and Beason (1983), 1983 CanLII 1873 (ON CA), 7 C.R.R. 65, at 79, the Ontario Court of Appeal accented the general approach to section 11(b) that it had earlier adopted in R. v. Antoine, (1983), 1983 CanLII 1743 (ON CA), 4 C.R.R. 126. In the words of Martin J.A.:

That general approach . . . requires the question whether the accused's right to be tried within a reasonable time under s. 11(b) of the Charter has been contravened, be determined on an ad hoc balancing basis in which the conduct of the prosecution and the defendant are weighed.

The Court further adopted the balancing factors which were identified by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972), and which have been generally considered by boards of inquiry: length of delay, the reason for delay, the defendant's assertion of his right, and the prejudice to the defendant. In invoking this balancing test, the Court surmised that it is appropriate to give initial consideration to the length of delay and the nature of the charge in order to determine whether the length of delay is "prima facie excessive" or "presumptively prejudicial": and therefore worthy of further inquiry.

50On the facts of Beason an "ordinary" and "uncomplicated" charge of theft under $200.00 took more than four years to come to trial. Of an intervening nine adjournments only one was the fault of the accused and the other occurred for reasons of absence of transcripts, absence of an available court due to crowding, absence of the chief crown witness and absence of a prosecutor. Not surprisingly, the Court was not sympathetic to the Crown under these circumstances and it restored that lower court order quashing the indictment. Another factor in the Court's decision was that the accused would be prejudiced by the intervening death of the co-accused in the alleged crime. In sum, in these circumstances the Court found a "glaring delay".

51"Glaring delay" may be the only delay that courts will find unacceptable. In R. v. Mills (1983), 1983 CanLII 1747 (ON HCJ), 3 C.R.R. 63 the Ontario High Court (affirmed by the Ontario Court of Appeal, (1983), 1983 CanLII 1796 (ON CA), 6 C.R.R. 88) found that an accused's right to trial within a reasonable time was not violated in circumstances where the accused was charged in March of 1977, he first appeared in court on September 25, 1981, an important defence witness had died, and there was difficulty in locating and interviewing other potential defence witnesses.

52In the present case the "conduct of the prosecution" — as that phrase is used in Beason, supra, — must include consideration of both the labour arbitration procedures that were pursued and the conciliatory, investigative procedures that were followed under the Code.

53Turning first to the matter of labour arbitration proceedings, in response to the January 1981 posting of the alleged offensive seniority list, the complainants exercised their rights as members of the union to grieve. The respondents cannot now be heard to complain of "delay" associated with the legitimate pursuit of such labour arbitration remedies. The value of the grievance arbitration process was emphasized by Chairman McCamus in Hyman v. Southam Murray Printing (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 at D/622 as follows:

In my view it would not be unreasonable either for the complainant or the Commission to determine that further proceedings with respect to the complaints should be deferred until the ultimate disposition of the grievance arbitration. If the grievance had been successful, either the complainant or the Commission might have wished to recommend that the proceedings under the Code be terminated.

54Turning to the alleged delay since the involvement of the Commission, an examination of the nature of human rights proceedings is in order.

55Ontario human rights legislation was first enacted in 1962. It superceded the Ontario Anti-Discrimination Commission Act of 1958 and consolidated three earlier pieces of legislation. Human rights legislation has differed significantly from earlier legislation which took a penal approach to problems of discrimination. In contrast, our more recent human rights legislation espouses a flexible, administrative approach to discrimination involving both conciliation and education.

56The board functions of the Commission are presently enumerated in section 28 of the Code as follows:

(a) to forward the policy that the dignity and worth of every person be recognized and that equal rights and opportunities be provided without discrimination that is contrary to law;

(b) to promote an understanding and acceptance of and compliance with this Act;

(c) to recommend for consideration a special plan or program designed to meet the requirements of subsection 13(1), subject to the right of a person aggrieved by the implementation of the plan or program to request the Commission to reconsider its recommendation and section 36 applies with necessary modifications;

(d) to develop and conduct programs of public information and education and undertake, direct and encourage research designed to eliminate discriminatory practices that infringe rights under this Act;

(e) to examine and review any statute or regulation, and any program or policy made by or under a statute and make recommendations on any provision, program or policy, that in its opinion is inconsistent with the intent of this Act;

(f) to inquire into incidents of and conditions leading or tending to lead to tension or conflict based upon identification by a prohibited ground of discrimination and take appropriate action to eliminate the source of tension or conflict;

(g) to initiate investigations into problems based upon identification by a prohibited ground of discrimination that may arise in a community, and encourage and coordinate plans, programs and activities to reduce or prevent such problems;

(h) to promote, assist and encourage public, municipal or private agencies, organizations, groups or persons to engage in programs to alleviate tensions and conflicts based upon identification by a prohibited ground of discrimination;

(i) to enforce this Act and orders of boards of inquiry; and;

(j) to perform the functions assigned to it by this or any other Act.

57The investigative powers of the Commission enabling the pursuit of its functions (ss. 32(3)) have been expanded beyond those of the former Code. The broad remedial powers of a board of inquiry have also been expanded to include directions aimed at achieving compliance with the act in respect of future practices of an offending party. It should also be observed that, while the present Code does add a new limitation period concerning the initiation of complaints, there is still no reference to a limitation period for the prosecution of complaints.

58In total, then, the structure of Ontario's human rights legislation clearly indicates the legislative intention to promote both the settlement of complaints and the evolution of attitudinal positions regarding discrimination through the reactive and proactive means of thorough investigation, conciliation and education. Indeed, the preamble to the Code refers to "the creation of a climate of understanding and mutual respect for the dignity and worth of each person". In this context, any argument based on delay has an initial, inherent weakness.

59As an administrative (as opposed to a strictly judicial) process, the human rights process in Ontario acquires a certain autonomy which the courts have evidenced a desire to protect and foster. In Chairman Hunter's preliminary decision in Joseph v. North York General Hospital and College of Nurses of Ontario (1982), 1982 CanLII 4876 (ON HRT), 3 C.H.R.R. D/854, he adopted the "tenor and spirit" of the Ontario Court of Appeal's admonition to administrative tribunals in Corporation of the City of Toronto v. C.U.P.E., Local 79 (1982), 1982 CanLII 2229 (ON CA), 35 O.R. (2d) 545 (leave to appeal to S.C.C. refused May 31, 1982). With deference to the expertise of specialized tribunals and with disdain for "extreme legal formalism" and "the rigidities and technical rules of court procedure" in the administrative context, Blair, J.A. urged administrative tribunals to "proceed with the maximum of common sense and a minimum of technicality" (1983) 3 C.H.R.R. D/857. (The identical passage from C.U.P.E. and the same notion of the role of boards of inquiry under the Ontario Human Rights Code was more recently reiterated by Chairman Cumming in Bahjat Tabar and Chong Man Lee v. David Scott and West End Construction Limited, (1983), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073 at D/1083.)

60Although focusing on labour tribunals, Blair, J.A.'s conclusion in C.U.P.E. (at p. 558) that "courts consistently have recognized the special role of arbitration boards and have been loathe to interfere with their decisions or proceedings" is applicable as well for the protection of the present, flexible, administrative scheme of human rights enforcement.

61As indicated by Commission counsel, the Commission has implemented a "rapid case process system" — an expedited investigation-conciliation process — in an effort to facilitate the timely resolution of human rights complaints.

62It is also apparent that, even if it were decided that delay has infringed a Charter right, the foregoing analysis of the nature of the human rights complaint process could have the effect of justifying the infringement. Through the application of Charter section 1, the attendant delays of this administrative process can be viewed as a reasonable limit "as can be demonstrably justified in a free and democratic society" on the right to be tried within a reasonable time. Turning to the doctrine of abuse of process, it is apparent that courts have not encouraged the development of this doctrine as it relates to delay. According to McDonald (Legal Rights in the Canadian Charter of Rights and Freedoms, Toronto: Carswell, 1982 at 89):

The court's power to intervene and stay proceedings has been described as "extraordinary" and is to be "exercised only where there has been something oppressive and unfit in the proceedings themselves.

In R. v. Mills, supra, at p. 78, Osborne J. reviewed the jurisprudence in this area and observed:

All of the abuse of process decisions seem to me to indicate that there must be, in addition to delay, some wilful or unconscionable behaviour on the part of the authorities to trigger an abuse of process response . . . Abuse of process reflects an inherent jurisdiction to prevent an abuse of the court's processes through oppressive or vexatious proceedings.

63Ultimately, Osborne J. concluded at p. 78 that the facts disclosed no oppressive conduct or conduct that was wilfully vexatious towards the accused:

The delay attributable to the authorities taken alone is the product of negligence not vexatiousness. Looked at in that context, it does not amount to an abuse of process.

64In summary, then, it appears that the standard of proof for abuse of process is even higher than that which exists for Charter section 11(b). In light of the foregoing analysis of the nature of dispute resolution under Ontario's human rights legislation, it is not apparent that the Commission's conduct can be characterized as either vexatious or oppressive so as to amount to an abuse of process in the present case.

65The leading Ontario human rights decision regarding undue delay is probably that of Professor McCamus in Hyman, supra. In Hyman the complainant employee first filed a complaint against his employer on July 19, 1977. The Commission proceeded to investigate, but the complainant alleged further discrimination and filed a subsequent complaint against his union on February 8, 1978. On November 21, 1979, subsequent to proceedings before a labour board of arbitration, a second complaint was filed with the Commission against both the complainant's employer and his union. The board of inquiry was appointed on May 18, 1981 (some four years after the first complaint was filed) to hear the complaints against the employer and the union. The hearing was convened on August 19, 1981, at which time the respondents raised preliminary objections based on, inter alia, unreasonable delay in the initiation and prosecution of the complaints.

66Chairman McCamus found that, on the facts of the case (including the time absorbed by the grievance arbitration process), unreasonably delay was not established. In obiter, the Chairman also found that a board of inquiry has no jurisdiction under the Code to dismiss a complaint at the commencement of proceedings on the basis of alleged unreasonable delay. He concluded that, when the Minister appoints a board, he is aware of any delay. If, despite this knowledge, the Minister appoints a board, the board cannot then dismiss the complaint solely because of the delay. In the Chairman's words:

it would be a surprising interpretation of the mandate conferred on the Board of Inquiry that would permit it to dismiss the complaint without making a decision as to its merits on the basis of the facts which must have been apparent to the Minister at the time of making the appointment (D/621).

Chairman McCamus also found that unreasonable delay can be taken into account in assessing the appropriate remedy but that it cannot be a basis for dismissing a complaint unless the delay results in such evidentiary problems that the facts cannot be established with sufficient certainty to determine the issue.

67The Hyman decision raises several important points for our purposes. First, it is relevant that the Board did not find unreasonable the delay of three years and ten months from the date of the first complaint to the appointment of the Board (compared to three years and six months in the present case).

68The decision in Hyman, that a board of inquiry has no jurisdiction to dismiss a complaint at the commencement of proceedings on the basis of unreasonable delay, might also have an impact on the present case. If, in the present case, the Minister's act of appointing this Board on March 17, 1986 has the effect of "absolving" the Commission of any previous delay (except in a case where such delay has created evidentiary problems which prevent the facts from being sufficiently established), then it is possible that the respondents may only be heard to complain of any delay occurring since the Minister's appointment. I pause to note that Hyman may be suspect in this regard since it was decided without regard to the Charter.

69Finally, Hyman indicates the factors that boards of inquiry will consider in determining whether delay is unreasonable. Chairman McCamus gave special consideration to the reason for delay and found that concurrent grievance arbitration proceedings justified the delay in the human rights proceedings. More important in the Chairman's mind was that neither respondent established that any significant prejudice resulted from the delay. Although the respondent employer indicated that a number of witnesses whom he wished to testify were no longer employees, the Board concluded that, in itself, this did not establish sufficient prejudice. Rather, it would be necessary to show "important" witnesses are no longer available or that there are "otherwise insurmountable problems of proof" confronting either of the respondents (D/622).

70The Hyman decision was supported and quoted at length in a subsequent interim decision of another Ontario Board of Inquiry in Bahjat Tabar and Chong Man Lee v. David Scott and West End Construction Limited, supra. The first complaint of one complainant was made more than two years after the factual situation complained of. Furthermore, an amended complaint of the same complainant was made more than five years after the situation complained of. From the time of the first complaint, approximately three and one half years passed until the commencement of the hearing. The Board found that these delays were not unreasonable and refused to dismiss the complaints. In addition to Hyman, Chairman Cumming found support for his decision in the decision of a Manitoba board of inquiry in Finlayson v. City of Winnipeg et al., (1981), 1 C.H.R.R. D/429. In that case, the complaint had been filed on July 18, 1978, and the Board was appointed on October 2, 1980. The Board found that the delay of over two years was not unreasonable.

71Mears et al. v. Ontario Hydro et al., (1983) 1983 CanLII 4713 (ON HRT), 5 C.H.R.R. D/1927, is another human rights decision of interest in which the respondent raised the issue of delay. In this case, three years and eight months elapsed from the time of the original complaint until the hearing date. The respondent claimed prejudice to itself existed since one potential witness had died and another had moved away. In rejecting this claim, I noted that delays were attributable to the attempts of counsel for the respondent and for the Commission to settle these complaints. At D/1928 at para. 16511 I concluded:

There is no doubt that there was a lengthy delay between the events in question and the inquiry. However, this delay affects both parties and may have in fact been more prejudicial to the complainants. [The Respondent] was informed about the complaints to the Ontario Human Rights Commission within one week of the complainants being laid-off . . . and could have taken steps to preserve their evidence for the eventual inquiry and to utilize evidence collected by the investigator for the Human Rights Commission. I therefore do not feel that it is necessary for me to take into consideration the question of delay . . .

72In the present case the reasonableness of any delay is exemplified by the following exchange at the preliminary hearing (Transcript, p. 59):

The Chairman: I take it that there is no evidence in any of the agreed facts of any specific prejudice to the respondents?

Mr. McNamara: No. Concrete prejudice, no.

73In the case before us not only was there no substantial prejudice, there was no prejudice at all, save the inevitable fading of memories. It is not enough, for the respondents to succeed in their application, that they presumed the matter to be dropped. They are well able to present their case; the delay although regrettable was not of such a length as to be considered unreasonable. It is indeed unfortunate that administrative tribunals have not cured the delays we have come to accept as inevitable in our court system. It is not, however, grounds to deny relief to a blameless party to the proceedings where clearly there has been no prejudice to the respondents.

74Counsel for the respondents also argued that I should consider the applicability of sections 15 and 7 of the Charter to the Commission's delay. I have come to the conclusion that the facts of this case do not require me to determine whether sections 15 or 7 can assist a respondent facing a human rights inquiry. I do not find it necessary for me to reiterate my thinking on the issue of delay. Although the Commission can be criticized for the length of time that elapsed since the complaints herein were brought, the Commission's actions do not entitle the respondents to have the proceedings dismissed pursuant to the Charter or the doctrine of abuse of process.

75I therefore order that:

1. The name of the respondent Sault Ste. Marie Fighters Association, Local 529 be amended in these proceedings to the Sault Ste. Marie Professional Firefighters Association.

2. That the Ontario Professional Firefighters Association be added as a party respondent to these proceedings.

3. That public inquiry into the three complaints herein commence in Sault Ste. Marie, Ontario on Tuesday, June 10th, 1986 at 10:00 A.M.