Ontario Board of Inquiry
Denis J. Barnard
Complainant
v.
Board of Commissioners of Police, David Galbraith, Dean Cunningham, Judge R. Tremblay, Nick Kingerski, Robert Asselin, William Martin Jr., Lloyd Lindberg, Corporation of the Town of Fort Frances and Michael Solomon, Chief of Police, Fort Frances, Ontario
Respondents
Place: Fort Frances, Ontario
Before: Peter A. Cumming
Appearances by:
Kim Twohig, Counsel for the Ontario Human Rights Commission and Denis J. Barnard
Allen G. McKitrick, Counsel for the Respondents
COMPLAINTS — effects of amendment — JURISDICTION — jurisdiction to hear amended complaint
Summary: The board of inquiry dismisses a preliminary motion made by the respondent Board of Commissioners of Police that the hearing into the complaint of Denis J. Barnard should not proceed.
Mr. Barnard, who is a police officer in Fort Frances, alleges that he was discriminated against because of his disability when he was placed on restricted duties indefinitely. Mr. Barnard is a diabetic. He experienced some insulin reactions during the period 1981–1984. He was placed on "restricted duties" as a result.
The Fort Frances Board of Commissioners of Police argues that the board of inquiry does not have jurisdiction to hear the complaint, because the complaint was amended and this amended complaint constitutes a second complaint, which was not investigated and considered by the Ontario Human Rights Commission as required under the Ontario Human Rights Code.
The Board of Commissioners of Police also argues that the Ontario Human Rights Commission originally declined to appoint a board of inquiry and only did so after Denis J. Barnard requested a reconsideration. The respondent states that the commission failed to provide reasons for its reconsideration and its ultimate decision to appoint a board of inquiry.
The board of inquiry finds that the commission followed appropriate and fair procedures at all times, that the respondent was well-informed of the nature of the case against it, and was given full opportunity to provide relevant information.
The preliminary motion is dismissed.
Introduction.
(a) Conference Telephone Call To Commence Hearing.
1The complainant in this matter, Denis J. Barnard, is employed as a police officer with the Fort Frances Police Force, and has been since 1970. As yet, no evidence has been given, other than documents being filed for the purpose of the respondents' preliminary motion. The hearing commenced September 25, 1985, by way of a conference telephone call, with the consent of counsel, at which time the hearing was adjourned until November 7, 1985, for the purpose of hearing argument in respect of a preliminary motion made by respondents' counsel. My appointment as a board of inquiry by the Minister of Labour (Exhibit #1) is dated August 27, 1985. As subsection 38(1) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, as amended, (hereafter the "Code") is mandatory in requiring a hearing to commence within 30 days of the day of appointment, it was necessary for the hearing to commence by September 26, 1985. However, as the illness of the respondent, Michael Solomon, Chief of Police, Fort Frances Police Force, necessitated the hearing being adjourned until November, it would have been a waste of time and money to commence the hearing in Fort Frances before September 26, with counsel and myself travelling to Fort Frances only for the purpose of an adjournment. It is to be noted that Rule 37.12 of the new Supreme Court of Ontario rules of procedures allows for motions, on consent, to be done by way of a conference telephone call in respect of a court action. This common-sensical approach seems appropriate for hearings of boards of inquiry as well, and hence, with the consent of counsel was followed in the instant situation. Accordingly, the hearing commenced September 25, 1985, being adjourned to November 7, 1985, at which time a motion on behalf of the respondents was argued.
(b) The Complaint(s).
2The complainant apparently was diagnosed as a diabetic in 1972, and informed his employer at that time. The diabetes resulted in problems in respect of his employment commencing in July, 1981. He alleges in a complaint of August 10, 1982 (Exhibit #2) that the respondents discriminated against him in respect of his employment, alleging that they were in breach of subsections 4(1) and (2), and section 8 of the Code. On July 22, 1981 he was in a motor vehicle accident while on duty due to hypoglycemia (low blood sugar), and this led to him being placed "on duty at home."
3A complaint of August 17, 1985 was filed as Exhibit #3 for identification purposes in respect of the motion. This complaint also alleges a breach of subsections 4(1) and (2) and section 8 of the Code. As we shall see, one of the issues raised in respondents' motion relates to the status of the 'complaint' or 'complaints' in relation to my appointment (Exhibit #1).
Respondents' Preliminary Motion.
4The respondents' motion in essence is that the hearing should not proceed for a number of reasons. Although the issues overlap, it is convenient to discuss them separately so far as possible.
5(1) The respondents assert that the Minister was beyond his jurisdiction in appointing a board of inquiry in the instant situation.
6Judith Keene, in her book, Human Rights in Ontario (Carswell, Toronto, 1983) states:
It would appear that the board of inquiry has no jurisdiction to consider arguments as to the technical validity of its appointment; the Code appears to limit the issues to be heard to those relating to the complaint. (at p. 228)
7In Re Canadian Human Rights Commission and British American Bank Note Co. (1980), 1980 CanLII 4279 (FCA), 116 D.L.R. (3d) 178, the Federal Court of Appeal was of this view. Thurlow, C.J. stated (at pp. 179, 180):
The record of the proceedings before the Tribunal and its reasons show that what the Tribunal did was to convene and receive information, largely in the form of an agreed statement of facts relating to the business of the respondent and hear arguments directed to the question whether it had jurisdiction, in the circumstances disclosed, to entertain the complaints. As I see it the Tribunal never did inquire into the complaints or address the question posed by s. 41 of the Canadian Human Rights Act as to whether the complaints were substantiated. This is apparent from the first and second last paragraphs of the reasons of the Chairman and one of the members, paragraphs with which the third member also agreed. They read:
We were appointed under the Canadian Human Rights Act (S.C. 1976-7, c. 33) as a Human Rights Tribunal to enquire into a complaint against the British American Bank Note Company Limited by Shirley Cooligan and Maureen McKenny (exhibit C-1). Prior to our enquiry into the merits of this complaint, our jurisdiction as a tribunal was challenged by the Respondent, and we accordingly find ourselves faced with a difficult preliminary question of constitutional law. This decision relates solely to that preliminary question.
We are accordingly driven to the conclusion that the provisions of the Canadian Human Rights Act do not apply to the operations of the Respondent, and that we therefore lack jurisdiction to entertain this complaint.
The question thus considered by the Tribunal was undoubtedly one with which it might be concerned. It was one of which the Tribunal could quite properly hear evidence and take a position and if it thought that it had no jurisdiction it might decline to make the inquiry. That seems to be what in fact happened. But the Tribunal is not authorized by the statute to decide the question and its opinion on the point renders nothing res judicata and binds no one. It does not even bind the Tribunal itself. The opinion can be reversed by the Tribunal itself at any time either on the basis of additional material or on the same material. If the opinion is wrong, on an application of mandamus, the Trial Division of this Court can decide the question and require the Tribunal to exercise its jurisdiction.
On the other hand, if the opinion is right the application for mandamus will fail. But an application for mandamus is, in my opinion, the course, and the only course (short of persuading the Tribunal itself to change its view) that is open to a party who is dissatisfied with the Tribunal's position and seeks to require the Tribunal to proceed. On the other hand if, indeed, the Tribunal had no jurisdiction and nevertheless had concluded that it had, an application for prohibition would have been the appropriate procedure for the respondent to pursue.
8I agree with these views, and as well, I am obliged to accept the ruling of the Federal Court of Appeal on the point. Therefore, it seems to me that at most I, as a board of inquiry, can express an "opinion" on the issues raised by respondents' motion in so far as they go to "jurisdiction," with the party dissatisfied with my opinion then having the option of proceeding by way of an application to the court for mandamus or prohibition, as the case may be.
9The complainant filed a complaint dated August 10, 1982 (Exhibit #2) which dealt with events to July 14, 1982. The commission investigated the complaint as it is obliged to do by section 32 of the Code. However, upon investigating the commission decided not to request the Minister to appoint a board of inquiry, and so advised the parties with the reasons therefore, as the commission is obliged to do by subsection 35(2). (See letter of March 24, 1983 marked as #1 in the respondents' written argument – being Exhibit #4). In such event, the complainant can, and did, request the commission to reconsider (subsection 36(1)), whereupon the commission must notify the respondents of such request to reconsider and provide the respondents an opportunity to make written submissions (subsection 36(2)). The commission complied with this requirement. (The letter of the complainant requesting reconsideration was marked #2, and the respondents' letters of April 28 and July 4, 1983 in response to the commission's notification of the opportunity to make written submissions, were marked as #3 and #4 – all in the written argument of the respondents – Exhibit #4 in the hearing.)
10The commission's decision as to whether there will be a "reconsideration," with the reasons therefore, is to be recorded in writing and communicated to the parties. The commission sent a letter June 28, 1983 (#5 in Exhibit #4) that it would reconsider, but does not set forth any reasons for the decision. Therefore, respondents assert, subsection 36(3) was not fully complied with, as no "reasons" were given for the decision to reconsider. However, there was no conceivable prejudice to the respondents by this oversight. Mr. Barnard had asked the commission to reconsider because the respondent Board had put him on restrictive duties for an indefinite time. The respondent Board was aware of this (#3 in Exhibit #4), making a detailed explanation to the commission (#4 in Exhibit #4). Moreover, the respondents were fully involved in the investigation that ensued upon the decision to reconsider. (See #6 in Exhibit #4; #1 and #2 in Exhibit #5.)
11Respondents assert that the commission's failure to give reasons as to why it was going to reconsider, was prejudicial. Respondents assert that the commission should have looked to the factors outlined in section 33. But section 33 goes to whether the commission should deal with the complaint in the first instance. A decision to reconsider implies necessarily, at the least, that the commission thinks a further investigation is necessary. That is, a decision to reconsider necessarily implies that at that point there is nothing within section 33 such that the commission should "in its discretion decide to not deal with the complaint."
12In my opinion, the reasons why the commission decided to reconsider were self-evident from the complainant's request for a reconsideration, specifically, the fact of the Police Act, R.S.O. 1980, c. 381, hearing and that there was to be an "indefinite period" in respect of which he was to be on restricted duties. At the least, these matters of concern were quickly made known to the respondents, and the respondents were given an opportunity to respond which they did.
13(2) The respondents assert that because the respondent Board was making a decision under the Police Act, R.S.O. 1980, c. 381 and its regulations, in placing Constable Barnard on restrictive duties for an indefinite time, the action of the respondent Board cannot be challenged under the Human Rights Code, 1981. This argument is based upon section 46 of the Code, which reads:
46.(1) This Act binds the Crown and every agency of the Crown.
(2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part 1, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply notwithstanding this Act.
(3) Subsection (2) does not apply to an Act or regulation heretofore enacted or made until two years after this Act comes into force.
14Subsection 46(2) did not come into force until June 15, 1984. Accordingly, respondents argue that subsection 46(2) does not apply to decisions under the Police Act prior to June 15, 1984.
15Sections 15 and 16, and subsection 17(1) of the Police Act state:
The members of the police force in a municipality having a board shall be appointed by the board.
A board may by by-law make regulations not inconsistent with the regulations under section 74 for the government of the police force, for preventing neglect or abuse, and for rendering it efficient in the discharge of its duties.
17.(1) Notwithstanding section 2, the board is responsible for the policing and maintenance of law and order in the municipality and the members of the police force are subject to the government of the board and shall obey its lawful directions.
16Paragraph 27(e) of Regulation 791 enacted pursuant to the Police Act states:
- No chief of police, constable or other police officer is subject to any penalty under this Part except after a hearing and final disposition of a charge on appeal as provided by this Part, or after the time for appeal has expired, but nothing herein affects the authority of a board or council
(e) to discharge or place on retirement, if he is entitled thereto, any member of the force who, on the evidence of two legally qualified medical practitioners is, due to mental or physical disability, incapable of performing his duties in a manner fitted to satisfy the requirements of his position but any decision of the board or council made pursuant to this clause may be appealed to the Commission.
17In my view, subsection 46(2) of the Code would not excuse every act of unlawful discrimination that might be done by a Board of Police Commissioners in making decisions under section 27(e) of Regulation 791 under the Police Act before June 15, 1984. Subsection 46(2) of the Code only excludes (until June 15, 1984) statutory provisions and regulations which, in themselves, may be in conflict with the Human Rights Code, 1981. The complainant is not challenging the Police Act's provisions, or regulations thereunder, in the instant situation. He is challenging the decision made by the board under the Police Act and regulations. Those decisions must be made in conformity with the general law, including the Human Rights Code, 1981.
18(3) Respondents assert that there was a failure on the part of the commission to comply with requirements under both the Code and section 8 of the Statutory Powers Procedure Act to give notice to the respondents before making decisions.
19It is clear that the respondents were given ample opportunity (see #1, #2 and #3 in Exhibit #5) to discuss, and respond to, the issues during the investigation by the commission.
20In the "summary of the evidence" (#3 in Exhibit #4) given by the commission to the respondent Board upon the conclusion of the commission's investigation, it is obvious that the matter of Constable Barnard's "restricted duties" imposed by the respondent Board, was in issue.
21The respondent Board was advised by letter dated January 21, 1985 (#8 in Exhibit #4) from the commission that a board of inquiry was to be appointed. Respondents argue that no reasons were given for this decision, but none have to be given under subsection 35(1) of the Code. (Reasons are to be given if the commission decides not to request the Minister to appoint a board of inquiry). Reading the entirety of sections 35 and 36, it seems that once a decision is made by the commission to reconsider (subsection 36(3) – and reasons are to be given for this decision), then the decision whether or not to appoint a board of inquiry following upon the investigation in the reconsideration, is made within the framework of subsection 35(1). Moreover, whatever the merits in the commission's decision to request the appointment of a board, the respondents had been apprised during the investigation of the alleged factual history pertinent to the dispute that was being determined during the course of the investigation (#3 in Exhibit #4).
22Given its decision to request the appointment of a board of inquiry, the commission and the complainant, Constable Barnard, wanted to include events occurring since August 10, 1982 (the date of his original complaint – Exhibit #2) to about July 11, 1985 (#9 in Exhibit #4). That is, the commission and complainant wanted to update the complaint and make it current. Counsel for the commission had written to respondents' counsel (#9 in Exhibit #4) to this effect, suggesting a new, second complaint would be made for the period of time subsequent to the first, i.e., from August 10, 1982 to about July 11, 1985. A new complaint would trigger the sequential 'enforcement' provisions, being sections 31 to 36 of Part IV of the Code, culminating in a decision by the commission to request, or not request, the Minister to appoint a board. In the context of the instant situation, upon the commission making the decision to appoint a board of inquiry (after reconsideration) in respect of Constable Barnard's first complaint (Exhibit #2), the commission would undoubtedly want a board of inquiry to consider as well the period of time, August 10, 1982 to July 11, 1985, subsequent to the signing of the complaint, because Constable Barnard alleges that discriminatory acts continued to take place over that period of time.
23A new, second complaint (Exhibit #3) was signed to cover this period of time, August 10, 1982 to July 11, 1985. However, upon a complaint being signed there is no apparent abridgement to the enforcement process set forth in sections 31 to 36 of the Code, that is, the procedural steps must be followed by the commission.
24The new, second complaint signed by Constable Barnard, dated August 27, 1985 (Exhibit #3), also sets forth the factual history covered in his original complaint (Exhibit #2), i.e., from 1970 to August 10, 1982. Although slightly different wording is used from that in the first complaint, there are no substantial departures. That is, the second complaint (Exhibit #3) embraces the period covered by the first one (Exhibit #2), as well as covering the subsequent period, from August 10, 1982 to July 11, 1985.
25The second complaint refers to the hearing under section 27(e) of the Police Act, as that hearing did not commence until September 8, 1982 (after the first complaint of August 8, 1982 had been made) and did not conclude until November 8 and 9, 1982.
26In brief, according to the second complaint (Exhibit #3), the consequence of the decision of the respondent Board of January 13, 1983 following the hearing under the Police Act, was that Constable Barnard was given a "restricted duties" status, replacing the "on duty at home" status which had applied to the complainant from August 9, 1981 to January, 1983. The "restricted duties" status precluded the carrying of a gun and driving of a police car. With "restricted duties" Constable Barnard did clerical duties in civilian dress.
27The respondent Board in its decision of January 13, 1983, provided that the "restricted duties" were to continue for an indefinite period until it was established that Constable Barnard's diabetic condition was under control. The complaint (Exhibit #3) says that the "restricted duties" were removed June 12, 1985, when Constable Barnard again returned to full duties as a police officer.
28Constable Barnard's first complaint (Exhibit #2) in essence says that he should not have been given the "on duty at home" status, or at least it should have been for a very short period of time, given the medical evaluations and reports being done in respect of his condition. In essence, his second complaint (Exhibit #3) repeats this complaint, and goes further to allege that his "restricted duties" status was applied more severely than the respondent Board stipulated (that is, while he was not to be allowed to drive a police car or carry a weapon, he could do all other duties, but in fact he did only clerical duties). Moreover, he alleges the "restricted duties" status was imposed for too long a period, in that he says he was capable of performing all duties from October 26, 1984, although he did not regain 'full duties' status until June 12, 1985. He complains that he suffered embarrassment and hurt feelings from the restrictions, and was "excluded from inservice training sessions and education programs given to other police officers." (Exhibit #3).
29Thus, the overall situation can be broken down into three time periods: (1) August 9, 1981-January 18, 1983 (the "on duty at home" period), (2) January 18, 1983-October 26, 1984 (the "restricted duties" status period, the merits of which the complainant does not seem to dispute except for the degree of restrictions imposed in practice) and, (3) October 26, 1984-June, 1985 (the "restricted duties" status period which the complainant alleges should not then have been in place at all).
30The respondents say that if there are two complaints (and they assert there are in fact two complaints), then the statutory process set forth in sections 31 to 36 has not been complied with, in respect of the second complaint (Exhibit #3) and they are prejudiced. In my opinion, there is no apparent prejudice in fact. The investigation undertaken in respect of the first complaint indicates that the respondents were fully apprised of what the investigation was determining, that the respondents were able to make known to the commission their views as to Constable Barnard's on-going and new allegations, and their response that, in the respondents' opinion, there was a complete defence. (See #3, #4, #6, #7, in Exhibit #4, and #1, #2, #3 and #4 in Exhibit #5). The issues were being fully and frankly discussed, but with disagreement as to the facts and the consequences that should follow. In reality, if the steps contemplated by section[s] 31 to 36 were complied with following the second complaint, I have no doubt that neither party would have any further information than they had anyway, nor would either party have changed its position, and the parties would have found themselves in exactly the same position they are in now.
31The commission argues that the new complaint (Exhibit #3) is in fact an amended complaint, that is, that it constitutes the first complaint (Exhibit #2) as amended. My appointment (Exhibit #1) refers to the singular ("the complaint") but names the parties referred to in the August 27, 1985 complaint (Exhibit #3), and thus, respondents argue, must be referring to that complaint. In the background correspondence between the parties, counsel for the commission in July 24, 1985, wrote (#9 in Exhibit #4) about "a new complaint" being made, but in a letter dated August 13, 1985 (#11 in Exhibit #4) spoke of simply an "amended complaint." Respondents immediately objected to this approach (#12 in Exhibit #4).
32Respondents' argument was meticulous on this, and all, issues. In sum, respondents say that if there is a separate, second complaint, then sections 31 to 36 of the Code have not been complied with, and the Minister could not appoint a board of inquiry, or at least, it is obvious that this board of inquiry is not constituted in accordance with the Code and therefore, I should not proceed.
33Respondents assert that all of the protections of the Code, in sections 32 to 36, have been circumvented, as the complaint (Exhibit #3) could only have been signed just before the Minister issued my Appointment (both being dated August 27, 1985). The commission itself sitting as a body (as opposed to an individual staff member) could not have seen the August 27, 1985 complaint (Exhibit #3) prior to my appointment.
34Even though, as I have said, there would not be any real prejudice in fact to the respondents if there is a separate second complaint, in my view, any "complaint" filed must follow the enforcement procedures of sections 31 to 36 of the Code. I say that while at the same time being aware of the nature of a human rights tribunal. A board of inquiry is a tribunal of an administrative nature, and not subject to the same rules of procedure as a court.
35Thus, in my view, if my appointment can be said to relate simply to the second complaint (Exhibit #3), then the appointment would be open to attack on the basis that the enforcement procedures of section[s] 31 to 36 had not been complied with. However, this does not exhaust the arguments on this issue.
36Can the complaint of August 27, 1985 (Exhibit #3) be looked upon as an "amended" complaint? Given that the complaint of August 27, 1985 "adds" individual respondents to that of the original complaint (Exhibit #2), and given that it "adds" factual grounds beyond that of the original complaint (i.e. adds assertions of factual grounds for the time period August 10, 1982 to July, 1985), can it be viewed as simply an "amended" complaint, and if so, is this in compliance with the Code or beyond the Code?
37A complaint is not like an 'information' or 'indictment' in a criminal case; rather, it serves as notice to a party of allegations which may lead to a hearing by an administrative tribunal. There must be adequate notice. The complaint must serve "the central purpose of satisfying the notice requirements for a "fair hearing" in accordance with principles of Administrative Law" Cousens v. Canadian Nurses Association (1981), 1981 CanLII 4331 (ON HRT), 2 C.H.R.R. D/365; Chairman E.J. Ratushny). In Cousens, a case under the old Code, the commission sought to add two additional grounds ("nationality" and "place of origin") to the single one set forth in the complaint ("ancestry"). Chairman Ratushny stated:
Section 14(b) which deals with the jurisdiction of a board of inquiry, speaks in terms of the board ". . . reaching a decision as to whether or not any person has contravened this Act. . ." Reference has already been made to section 14c(a). Moreover, section 14b(1)(e) specifically authorizes the board to join additional persons as parties to the complaint. Would it not be anomalous for a board of inquiry to be authorized to add new parties to the complaint but to be precluded from modifying the ground of the complaint against an existing party?
The wording of sections 14b(6) and 14(c)(a) are sufficiently broad to bear the practical interpretation that a board of inquiry has jurisdiction to amend the alleged ground of contravention specified in a complaint. Surely, it was not intended that the Minister of Labour should have to make an additional appointment simply because, in preparation for the hearing, another possible ground of contravention has become apparent. It is clearly in the interests of all of the parties and the citizens of Ontario that the substantial complaint be dealt with at one hearing taking into account all of the possible ways in which any party may have "contravened this Act."
However, it must be emphasized that the jurisdiction to modify the alleged grounds of discrimination, carries with it the obligation of providing adequate notice. Failure to provide sufficient notice to the parties and, where appropriate, the opportunity to adjourn for further preparation could result in a board of inquiry depriving itself of jurisdiction by failing to provide a fair hearing as required by section 8 of the Statutory Power Procedures Act, S.O. 1971, c. 47, which provides:
- Where the good character, propriety of conduct or competence of a party is an issue in any proceedings, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto." (at D/365, D/366).
38I considered the questions of "added respondents" and "additional grounds of complaint" in Bahjat Tabar and Chong Man Lee v. David Scott and West End Construction Limited (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073 at D/1074, D/1075 and D/1083–D/1085, being another case under the old Code.
39As to "adding a respondent" I stated, at D/1074:
Mr. Lee's second Complaint adds Mr. D. Scott, Vice-President of West End Construction Limited as an individual Respondent. It is quite clear from Mr. Lee's first Complaint that Mr. Scott was the principal of the corporate Respondent with whom he dealt at all times. In essence, Mr. Lee was complaining about Mr. Scott. There is no prejudice at all to Mr. Scott due to the lapse of time in Mr. Scott being named a Respondent, being in 1981 at the time of the signing of the second Complaint. Even if he had not been named at that point in time, I would have exercised my discretion under paragraph 18(1)(e) of the Code to add him as Respondent at the hearing if a motion had been made.
40See also Nawagesic v. Mr. and Mrs. Rauman (February 14, 1978; Ont. – Cumming), and Finlayson v. City of Winnipeg (1981), 1 C.H.R.R. D/429 (Man. – Rothstein), cited in Tabar, to the same effect.
41As to adding an "additional ground" to that as stated in the complaint, I said, in Tabar at D/1085:
I repeat that I agree with the interpretation of the Code as made by Chairman Ratushny in Cousens. If an application is made in an inquiry to amend a Complaint to provide for an additional ground, given the purpose and intent of the Code, a possible breach of an additional provision should be considered by the board of inquiry, if there is no prejudice to the Respondent from lack of prior notice.
The purpose of a board of inquiry is to "hear and decide the complaint" (section 17(1), old Code) and "after hearing a complaint . . . decide whether or not any party has contravened" (section 19(a), old Code) the Code . . . I emphasize . . . that the jurisdiction to modify the alleged grounds of discrimination carries with it the obligation of providing adequate notice and where appropriate, the opportunity to adjourn for further preparation.
Given my understanding of my own reponsibility as a board of inquiry to determine whether any party has "contravened this Act" and my obligation to provide a party notice of a possible additional allegation and the opportunity to cross examine, in my view, it was incumbent upon me to ask the questions I did . . . at that point of time in the inquiry, in both the interests of the inquiry and the Respondents."
42In the instant situation, the alleged grounds of discrimination have not changed as between the first complaint (Exhibit #2) and the later one (Exhibit #3). It is only the expanded chronological statement of facts that has been added. Thus, it seems to me, that on the reasoning of Cousens and Tabar, the additional facts could be added to an "amended" complaint. As I have already said, the respondents at all times had adequate notice of the additional alleged facts, so there is no conceivable prejudice to the formal "adding" of these facts to a complaint in the instant situation.
43However, in adopting Cousens and Tabar, does the new Code have, in substance, the same provisions in the old Code referred to in those cases. Sections 38(2) and (3) of the new Code state:
38.(2) The parties to a proceeding before a board of inquiry are,
(a) the Commission, which shall have the carriage of the complaint;
(b) the complainant;
(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;
(e) where the complaint is of alleged conduct constituting harassment under subsection 2(2) of subsection 4(2) or of alleged conduct under section 6, any person who, in the opinion of the board, knew or was in possession of facts from which he or she ought reasonably to have known of the conduct and who had authority to penalize or prevent the conduct.
(3) A party may be added by the board of inquiry under clause (2)(d) or clause (2)(e) at any stage of the proceeding upon such terms as the board considers proper.
44Subsection 38(3) clearly gives a board of inquiry at least as much latitude to add parties as the old Code (section 14b(1)(e) in the 1970 Code, referred to in Cousens, and section 18(1)(e) in the 1980 Code, referred to in Tabar). The additionally named individual respondents in the complaint (Exhibit #3) in the instant situation are all included simply because they are the real persons constituting the corporate entity respondent, the Board of Commissioners of Police. They undoubtedly know this, and counsel for the commission expressly acknowledged this at the hearing on the preliminary motion. Whether or not these individuals are named, the Board of Police Commissioners as a corporate entity has been named in both complaints and the individuals undeniably constitute the board (although because the membership underlying the board changes from time to time, any given named individual may not have been a participating member in the board's decision-making at a specific point in time).
45The members of the Board of Police Commissioners have not been prejudiced by the lateness in being individually named. It is the Board of Police Commissioners, and Chief Solomon, who are the real respondents and they have been named at all times.
46Indeed, under paragraph 45(c) of the new Code, "person" is defined to include "a board of police commissioners established under the Police Act" so it is not really necessary to include the members of a board of police commissioners as parties.
47However, respondents assert that my appointment does not refer to the first complaint (Exhibit #2), with a request being made to me by the commission for "additional facts" and "additional respondents" to be added. Rather, respondents assert, the appointment, as seen from the face of it, simply refers to the August 27, 1985, complaint (Exhibit #3). This assertion is made because the complaint of August 27, 1985 names individual respondents named only in that complaint and not in the August 10, 1982 complaint. Does the appointment stand or fall on how it literally reads, or can it be taken as relating to the "complaint" in substance of Constable Barnard?
48In Maria Giovanoudis v. Golden Fleece Restaurant and Steve Carras (1984), 1984 CanLII 5044 (ON HRT), 5 C.H.R.R. D/1967 my appointment was in error in referring to the new Code, when the complaint at issue had been made under the old Code. I stated (at D/1968):
The jurisdictional issue turns on a technicality. There is no question that the Minister's Appointment of me as a board of inquiry was intended to be
IN THE MATTER OF the complaint made by Ms. Maria Makzi, of Toronto, Ontario, alleging discrimination in employment by Golden Fleece Restaurant and Tavern, and Mr. Steve Carras, 345 Bloor Street East, Toronto, Ontario. (Exhibit #11)
and that I am "to hear and decide the above-mentioned complaint. . ." as the Appointment (Exhibit #1) reads. No one could suffer any misunderstanding from reading the literally erroneous Appointment's reference to the new Code. The Respondents and their counsel have had the Complaint since March, 1981, which accurately states that it is a Complaint under the old Code. There is no conceivable prejudice to anyone arising from this error. The intent of the Minister in appointing me (and the substance of my formal Appointment) as a Board of Inquiry is to deal with the Complainant's Complaint. In my opinion, the Complainant's human rights protected under statute should not be defeated on the technicality of a mere descriptive error in my Appointment that caused no misunderstanding or prejudice to the Respondents.
49A board is charged with its responsibility primarily with reference to the complaint, but in broad terms, such that where amendment of the complaint can properly be made (that is, in accordance with principles of fairness and natural justice – see Cousens and Tabar) the literal wording of the appointment does not restrict the board. In my opinion, section 38 of the Code supports this view as to a board's responsibility.
50In my opinion, other cases cited on the hearing of the motion, Bell and Ontario Human Rights Commission v. McKay, 1971 CanLII 195 (SCC), [1971] S.C.R. 756, and Re Joseph and College of Nurses of Ontario (1985), 1985 CanLII 2179 (ON HCJ), 51 O.R. (2d) 155, (1985), 1985 CanLII 5252 (ON HCJDC), 6 C.H.R.R. D/2967, implicitly support this interpretation.
51If the appointment had referred to the August 10, 1982 complaint (Exhibit #2), and the commission at the commencement of the hearing had requested an amendment to that complaint to "add" those additional facts set forth in the complaint dated August 27, 1985, and to "add" those additional individual respondents referred to in the August 27, 1985 complaint, in my opinion, that should be allowed, for the reasons I have given. The respondents have known about all of the alleged facts throughout the history of this matter as the allegations were made, and they have known throughout, of course, that it was the Board of Police Commissioners and Chief Solomon who were being complained against.
52Surely, the fact that respondents knew the substance of Constable Barnard's complaint throughout, and knew whom he was complaining against, coupled with the fact that this complaint (in substance, if not precisely in form) proceeded through the statutory process of sections 31 to 36, meets the requirements of the Code and the appointment must stand. True, the formal appointment begs the question as to whether the complaint (Exhibit #2) could be amended at the hearing, but as I have said, in the particular circumstances an amendment would certainly be allowed. Moreover, the appointment does not in itself refer to a specifically dated "complaint," and it refers to "complaint" in the substantive sense (that is, the complaint being made under the Code). However, given that the appointment names additional individual respondents, obviously it can be argued that "complaint" in the appointment refers to the August 27, 1985, complaint form seen as Exhibit #3. I think respondents' strongest argument relates to the additionally named individuals, who need not be named anyway (given the section 45(c) definition of "person"). Respondents seek to prevent the "complaint" of Constable Barnard being proceeded with as against not only those additionally named individuals, but also as against the Board of Police Commissioners as a corporate entity, and Chief Solomon, on the technical basis that the additionally named respondents who are members of the Board should not be included.
53In my opinion, the complainant's "complaint" which is the substance of the two forms (the complaints which are Exhibits #2 and #3), is what is referred to by "complaint" in the appointment. While section 31 refers to "complaint in a form," so long as the form identifies the issue(s) so that the respondents know the allegations they have to meet, then "complaint" relates to all the facts relevant thereto and not just those that end necessarily as of the date of signing. Hence, in my view, my appointment is valid in referring to "complaint" which must necessarily in a "form" sense be that of August 10, 1982; but just as clearly, that form of complaint (Exhibit #2) can be amended to include those additional facts referred to in Exhibit #3. Hence, allowing the amendment upon any formal motion to be made (not made as yet), the "complaint" in the appointment becomes the complaint seen as Exhibit #3. As well, if it were sought to add respondents beyond the Board of Police Commissioners and Chief Solomon, (given that they should not be named in the appointment), this would have to be considered at the time under subsection 38(3) within the Cousens and Tabar framework of analysis, but this motion has, of course, not yet been made. As I have said, prima facie, it seems to be that if it was sought to add the individual Board of Police Commissioners members, simply because they constitute that body corporate and politic, then they should not be added as named respondents in that there is no point (given section 45(c)). While the hearing under the Police Act was subsequent to the original complaint (Exhibit #2) in time, that complaint did name the Board of Police Commissioners as a corporate entity and the reconsideration of the continuing "complaint" took into account the hearing and what resulted therefrom.
54(4) Respondents assert that on a "reconsideration" under section 36 the commission should have considered, but did not, the following arguments. First, the respondents assert a defence within paragraph 33(1)(d) in that some facts upon which the complaint dated August 27, 1985 was based occurred more than six months before it was filed. However, the reconsideration did not, and could not, consider the form of the complaint dated August 27, 1985 as it had not been filed. (Even if it were considering that complaint of August 27, 1985, given the continuum of facts referred to therein, one could only conclude that paragraph 33(1)(d) is inapplicable as it is directed at a situation where the alleged discriminatory factual situation has ended more than six months before, not where, as here, it allegedly continues unabated. See R. v. Manitoba Human Rights Commission and Galbraith and Lylyk (1983), 1983 CanLII 4728 (MB QB), 4 C.H.R.R. D/1607. As well, one could only conclude that the commission would not have exercised its discretion to not deal with the complaint, Exhibit #21, due to the paragraph 33(1)(d) considerations as it in fact recommended the appointment of a board of inquiry.) In all events, the commission in fact considered, and reconsidered, the complaint dated August 10, 1982 (Exhibit #2) but in the context, quite properly, of the substantive "complaint" therein which on a continuum, included the facts that unfolded subsequent to the date, August 10, 1982, of the first complaint (Exhibit #2).
55The respondents throughout the process in the instant situation had the opportunity to reply, and indeed, did so. At all times, counsel for the respondents made the respondents' position known quickly, in detailed fashion, and with a forcefully stated argument. (See, for example, #3, #4, #6 and #7 in Exhibit #4). Respondents' disagreement really, in essence, is that the commission exercised its judgment in making a decision that the respondents obviously disagreed with. The respondents were given a "hearing" throughout the process of the commission, in that they were told throughout what the commission's investigation was suggesting to the commission, and were given an opportunity to consider and respond to the facts. Thus, Re: S & M Laboratories and the Queen in Right of Ontario (1978), 1978 CanLII 1427 (ON HCJ), 21 O.R. (2d) 777 (Div. Ct. per curiam) cited by respondents, where it was held (at p. 799) that an opportunity to respond to allegations must be given as an aspect of "natural justice," was complied with in the instant situation. The issue at hand is not one of not being given an opportunity to respond to allegations. The respondents were treated with fairness by the commission throughout this matter.
56Respondents assert that the commission must have determined Constable Barnard's complaint of August 10, 1982 to be frivolous (page 17 of Exhibit #4), apparently because in the first instance the commission decided not to have Constable Barnard's complaint proceed to a hearing. That is, respondents argue that the commission must have decided not to proceed on one of the bases set forth in subsection 33(1), and the respondents presume the specific reason was because the "subject-matter of the complaint is . . . frivolous."
57Subsection 32(1) provides that the commission must investigate every complaint, "(s)ubject to section 33 . . ." Thus, it seems that the commission must "investigate" every complaint, unless it appears to the commission that one of the grounds listed in subsection 33(1) for not investigating, is present.
58However, the record in the instant situation suggests that Constable Barnard's complaint of August 10, 1982 (Exhibit #2) was in fact investigated but not proceeded with (the commission deciding not to request the Minister "to appoint a board of inquiry and refer the subject-matter of the complaint to the board" (subsection 35(1)), presumably because at that point in time the commission could not determine a reasonable possibility of a breach of the Code. It was in respect of this decision made pursuant to subsection 35(2) that a "reconsideration" within subsection 36(1) was requested. The requested reconsideration did not relate to a decision made under subsection 33(2), and subsection 33(1) did not at any time come into play. Until the reconsideration and a further investigation, the commission did not consider that the complaint of August 10, 1982 could be substantiated.
59(5) Respondents assert that the commission decided that the first complaint (August 10, 1982 – Exhibit #2) could not be substantiated, hence, the commission on its "reconsideration" must have been considering facts beyond those set forth in the August 10, 1982 complaint and which should have been the subject of a new complaint (which ultimately was the August 27, 1985 complaint – Exhibit #3).
60I look upon the factual situation set forth in the two complaints as being on a continuum. Essentially, Constable Barnard is alleging that Chief Solomon's treatment of him was unlawful discrimination, that the Board of Police Commissioners condoned this before and after the Police Act hearing, and that the restrictions placed upon him by the Board of Police Commissioners pursuant to the Police Act hearing amounted to unlawful discrimination.
61I think it reasonable to infer that the commission would not have requested a board of inquiry without the facts determined subsequent to August 10, 1982 (the date of the first complaint) but I think that if these additional facts are proven, the allegations of unlawful discrimination contained simply in the first complaint might be provable. I do not think the two complaints are easily severable as dealing with separate issues. Rather, they relate simply to one issue over a continuing time.
62Where the substantive 'complaint' deals with a continuum of facts relevant to the issues arising from the form of complaint filed, in my opinion, the commission, and any board of inquiry subsequently appointed, has the jurisdiction (and indeed, the obligation) to deal with such matters, provided the requirements of fairness (notice, opportunity to respond, etc.) to all parties is met. The requirements of fairness, or natural justice, have been met in the instant situation.
63(6) I have also noted the recent decision in Hope v. Royal Insurance Company of Canada (1985), 1985 CanLII 2031 (ON HCJ), 51 O.R. (2d) 797 of the Ontario Divisional Court. Section 41 of the Code allows for an appeal from a decision or order of a board to the Divisional Court.
64In that case, the complainant alleged discrimination based on "age, sex and family status" because of the premium required to add his sixteen year old son as an occasional driver under his automobile policy.
65The Divisional Court considered whether the Code is retrospective in effect, so a board of inquiry has the power to review the contents of an insurance contract which was entered into prior to the proclamation of the Code, being June 15, 1982.
66Montgomery, J. of the Divisional Court (Reid and Craig, JJ. concurring) stated (at pp. 799, 800):
The question . . . 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. The classic statement of the presumption was made by Willis J. in Phillips v. Eyre (1870), L.R. 6 Q.B. 1 at p. 23. It reads as follows:
Retrospective laws are, no doubt, prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, where introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the existing law . . .
Accordingly, the Court will not ascribe retrospective force to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature.
There is nothing in the Code to indicate such an intention.
In Driedger, Construction of Statutes, (2d), 1983, at p. 198, the author points out that the presumption applies to statutes that:
. . . create a new obligation, or impose a new duty or attach a new disability in respect of consideration already passed.
The Code imposes new duties and attaches new disabilities and, as such, brings about the application of the presumption.
The courts have declined to interpret similar legislation as having retrospective effect. Mr. Justice Le Dain, speaking for the Federal Court of Appeal in Re Latif and Canadian Human Rights Commission (1980), 1979 CanLII 4045 (FCA), 105 D.L.R. (3d) 609 stated at p. 622 that:
The fact that legislation serves a generally laudable or desirable purpose is not by itself sufficient to displace the rule against retrospective operation.
In my view, the Code cannot be applied retrospectively. The Board has no jurisdiction to inquire into this insurance contract.
67The reasoning of the Divisional Court seems to me to be clearly correct. Moreover I, as a board of inquiry, am in any event bound by the court's ruling.
68In the instant situation, the first complaint (Exhibit #2) is dated August 10, 1982. It alleged discrimination on a ground, disability, not present in provincial human rights legislation until June 15, 1982. That complaint refers to very few facts subsequent to June 15, 1982, other than a notice of hearing under the Police Act being served.
69It seems to me that, for the reasons given by Montgomery, J. in Hope, the Code could not apply to most of the factual situation set forth in the first complaint. However, in respect of this complaint, as I have held, the alleged factual situation subsequent to August 10, 1982 could be added to the complaint by way of amendment, and the Code certainly would apply to the period subsequent to June 15, 1982.
70For the reasons given, respondents' motion is dismissed.
Obiter
71The following comments are entirely obiter to the issues on the motion before me, and therefore gratuitous. However, given that I have spent some considerable time reading through the extensive material filed by both parties in respect of the motion, perhaps the following comments are appropriate as observations from this limited perspective. They certainly are not intended at all to imply any findings on the evidence, which has not yet been given.
72There is no evidence yet, but the documents filed suggest the following. In particular, the report of Dr. John A. Moorhouse of May 10, 1985 (#14 in Exhibit #4) is pertinent.
73Constable Barnard was a diagnosed stable Type 1 insulin-dependent diabetic for many years prior to 1981. From 1981 to 1984 he experienced repeated and frequent insulin reactions, some severe, which caused car and property damage, risk to himself and others, embarrassment to Constable Barnard and disruption of normal department routine.
74Dr. Moorhouse stresses in his report that the problems encountered by Constable Barnard are not necessary to the disease of diabetes itself, nor a necessary consequence of treatment. Rather, they result from "a treatment error" which should be corrected immediately. It seems that once Constable Barnard came under Dr. Moorhouse's care in June of 1984, that by adjusting Constable Barnard's insulin dosage drastically, there have not been any further problems. Dr. Moorhouse cut the daily insulin dosage from 90-100 units daily to 50 units daily in divided amounts. It is not explained why in the three years previous to Dr. Moorhouse seeing Constable Barnard, that this adjustment was not made. Dr. Moorhouse does state that "the Constable had been strongly compliant with his medical instruction, both before and after I saw him." His report is very commendable generally of Constable Barnard, saying he "is extremely cooperative." Dr. Moorhouse concludes that the Constable's "diabetes control now is categorized as excellent" and his "health is wholly normal."
75It would appear that Dr. Moorhouse's report of May 10, 1985 was responsible for the reinstatement of Constable Barnard to normal duties June 12, 1985.
76Undoubtedly, the problem of insulin reactions over the period of 1981 to 1984 caused great stress to Constable Barnard in particular, but also to the police department, Police Chief and Board of Police Commissioners as well, in reacting to the problem. The documents filed, including the complaints themselves, suggest that during the period July 22, 1981 to May 5, 1984, the Constable had some insulin reactions while working. This situation would give obvious concern to the Chief and Board of Police Commissioners Assuming there was no malice in any of the decisions taken as to the limitations placed upon Constable Barnard's duties, both in respect of types of duties and in respect of the duration of restrictions, there would easily be different judgments made as to suitable duties and length of time for restrictions. The protagonists in this dispute have been working together throughout the very protracted dispute, and Constable Barnard has been working again in the course of normal duties as a police constable since June 12, 1985. In Dr. Moorhouse's words, Constable Barnard "has borne a difficult problem with courage" and he "exhibits qualities of character, outlook, and diligence which seem exemplary for a policeman." Perhaps there have been errors of judgment on one or both sides in dealing with what was obviously a difficult situation for all. Perhaps there even has been pettiness or bitterness by one or both sides as each reacted to the other in dealing with the difficult situation. However, if malice was not present in the decision-making in respect of Constable Barnard's diabetic problem, now resolved, it would perhaps seem, prima facie, to be in the best interests of everyone not to force a determination of the issues.
77As I have stated, for the reasons given, Respondents' motion is dismissed.