Toronto (City) Board of Education v. Quereshi (No. 1)
1987-09-29
Muhammad Saleem Quereshi
Complainant
Central High School of Commerce
The Board of Education for the City of Toronto
Respondents
November 12, 1982
September 29, 1987
Place:
Toronto, Ontario
Before:
Ed Ratushny
Comm. Decision No.:
309A
COMPLAINTS — amendment not signed by complainant — amendment to reduce number of respondents — unreasonable delay in proceeding with complaint — PARTIES — reduction in the number of respondents — CANADIAN CHARTER OF RIGHTS AND FREEDOMS — s. 7 (security of the person) — s. 11 (rights upon being charged with an offence)
Summary: The Board of Inquiry, hearing preliminary motions in the matter of a complaint made by Muhammad Saleem Quereshi alleging discrimination on the basis of race, age, and sex, rules that the original complaint form should be filed with the Board of Inquiry and rejects the respondents' motion to dismiss these proceedings because of unreasonable delay.
The Ontario Human Rights Commission decided to proceed with Quereshi's complaint against Central High School but not against three other schools which were included in the original complaint. The Commission drew up an amended complaint form but the complainant refused to sign it. The respondents seek dismissal of the complaint, arguing that the Board lacks jurisdiction to hear the complaint since there is no proper complaint before it. The Board finds, however, that the proper procedure in this circumstance is for the Commission to file the original complaint form and ask the Board of Inquiry to make any amendments necessary to ensure fairness to the parties.
The respondents also seek dismissal of the complaint because of unreasonable delay in bringing the complaint before a Board of Inquiry. The complaint was filed in November 1982, and the Board of Inquiry was appointed in January 1987. The respondents argue that the passage of time has significantly affected the nature of evidence, documentary as well as viva voce, that the respondents might lead in defence.
The Board of Inquiry finds that the party claiming unreasonable delay must establish some specific prejudice resulting from the delay. The Board rules that no specific prejudice has been established and that the delay can be taken into account in fashioning a remedy and in weighing the evidence.
The Board also rejects an argument made by the respondents that the delay violates section 7 and 11(b) of the Charter of Rights and Freedoms. Since human rights complaints are not criminal procedures, the provisions of section 11(b) of the Charter which guarantees speedy trials are not applicable. In addition, the Board rules that section 7 is not applicable in this case since being subject to monetary penalties and allegations which could adversely affect business opportunities are not rights protected by section 7.
The respondents' motions are rejected and the Commission is instructed to file the original complaint form with requests for amendment.
1On January 28, 1987, this Board of Inquiry was appointed to inquire into the complaint of Mr. Quereshi, alleging discrimination against the Central High School of Commerce and the Board of Education for the City of Toronto, its servants and agents. A hearing was convened on February 25th with a view to setting dates for the actual conduct of the hearing. At that time, counsel for the Commission and for the respondent indicated that the complaint was not in proper form. It was agreed by counsel that an amended complaint would be filed at the outset of the hearing.
2The hearing was scheduled to proceed on April 27th but had to be rescheduled to May 11th, then May 27th and, finally, September 10th.
3The original complaint included three additional schools as respondents but the Commission decided only to proceed against the Central High School of Commerce with respect to this Board of Inquiry. Prior to the hearing on September 10th, the complainant wrote to the Commission requesting a reconsideration of the decision to exclude the other three schools but the request was denied. Counsel for the Commission then prepared an amended complaint and sought the signature of the complainant but without success.
4Prior to the hearing, the respondent gave notice of a motion for an order dismissing the complaint for lack of jurisdiction to proceed and determine the issues or for want of prosecution within a reasonable time by the complainant and the Ontario Human Rights Commission. Alternatively, it was requested that the proceedings be stayed pending the final reconsideration by the Ontario Human Rights Commission. The alternative motion was made without knowledge that the Commission had rejected the request for reconsideration and was not pursued by the respondent.
5In seeking dismissal for lack of jurisdiction, the respondent relied heavily upon the Canadian Human Rights Commission v. Bell Canada (1981), 1981 CanLII 4292 (CHRT), 2 C.H.R.R. D/265, a tribunal decision under the Canadian Human Rights Act. In that case, counsel for the Commission submitted that the actual complaint was contained in a package of letters which were filed with the tribunal. The tribunal was prepared to accept that it is not essential that the complaint be set out in a formal document and that it can be initiated by way of letter provided the letter sets out the essential elements of a complaint. However, in assessing the correspondence, a number of inadequacies were found. In effect, the principles of natural justice were not met since the complaint was not set out in such a way as to enable the respondent clearly to identify the contraventions alleged with sufficient particularity to enable it to prepare a proper defence. Indeed, as a complaint, the correspondence was described as being "grossly deficient."
6That situation is distinguishable from this case. Here, the problem relates to the failure of the Commission to file a complaint before the Board of Inquiry. In fact, the Commission did have a complaint but, because of the concerns of counsel with respect to possible prejudice, it had been agreed by counsel that the complaint would be amended before it was filed. The failure to file an amended complaint was related solely to the complainant's refusal to sign it. In these circumstances the appropriate approach is to file the original complaint with its deficiencies and request that the Board of Inquiry make any amendments necessary to ensure fairness to the parties.
7Sections 33 and 35 of the Ontario Human Rights Code provide that the Commission may decide not to deal with the complaint or may request the Minister to appoint a board of inquiry and refer the subject matter of the complaint to the Board. While the Act does not appear to deal with the situation explicitly, it is implicit that the Commission can request a Board of Inquiry with respect to only some of the initial respondents or some of the grounds of discrimination or some of the allegations of the complaint. Otherwise, the Commission and, ultimately, a board of inquiry, would be rigidly bound by the form of the complaint as initially drafted.
8Section 38(3) provides that a party may be added by the board of inquiry at any stage of the proceeding upon such terms as the board considers proper. There is no reference to parties being removed by the board of inquiry. However, that is also implicit. A specific reference to adding parties is probably related to the potential prejudice which could occur in the absence of appropriate terms such as adequate notice. The same considerations do not apply to removing parties. In the situation where additional respondents are included in the complaint but excluded from the terms of reference of a board of inquiry, such additional parties should be removed, prima facie. The onus of establishing a justification for including them under section 38(3) then would have to be established by the party seeking their inclusion.
9In these circumstances, the submission of the respondent with respect to jurisdiction cannot be sustained.
10Counsel for the respondent invited the Board to dismiss these proceedings in a manner analogous to that in which a court might proceed pursuant to Rule 24 of the Rules of Civil Procedure. He argued that recent judicial decisions have treated board of inquiry decisions in Ontario as being "actions" for some purposes and cited the case of West End Construction Ltd. and Minister of Labour for Ontario (1986), 1986 CanLII 2541 (ON HCJ), 57 O.R. (2d) 391 to illustrate that submission. There, a board of inquiry [(1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073] had found a breach of the Ontario Human Rights Code and awarded substantial damages by way of compensation. On appeal to the Divisional Court, it was argued that the complaints were barred by section 45(1) of the Limitations Act which requires that an action for "a penalty, damages, or a sum of money given by any statute to the Crown or the party aggrieved" be commenced within two years after the cause of action arose. An "action" is defined by section 1(a) as including "an information on behalf of the Crown and any civil proceedings." The Court held that the procedures in question under the Ontario Human Rights Code constituted an action under both sections 1(a) and 45(1).
11No authorities were cited as to how Rule 24 might be applied by the courts to a factual situation analogous to the case before us. However, it does seem as though the courts would be reluctant to dismiss an action merely because of a four year period in moving towards trial from the time of commencing proceedings. Some special circumstances or prejudice would have to be demonstrated, particularly where the action was proceeding progressively, albeit slowly, through its pre-trial stages. The affidavit in support of the motion alleges prejudice in that the passage of time "has significantly affected the nature of evidence, documentary as well as viva voce that the respondents might lead in defence of the complaint." However, as counsel for the Commission has argued, in the absence of special circumstances, the passage of time is simply a matter to be considered in weighing the viva voce evidence. It is difficult to conceive of the kinds of prejudice which might be related to the documentary evidence and none were specified by counsel for the respondent.
12Counsel for the respondent provided a useful chronology of events in this case which is attached as an appendix to this decision. The complaint was filed on November 12, 1982 but the Board of Inquiry was not appointed until January 28, 1987. Counsel for the respondent conceded that any delays after the appointment of the Board of Inquiry would not form a basis for the motion. In considering the question of unreasonable delay, I have been greatly assisted by the reasons of Professor McCamus in the case of Hyman v. Southern Murray Printing (1982), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617. He pointed out, that for the most part, arbitrators have emphasized the need for a party claiming unreasonable delay to establish some specific prejudice resulting from the delay. He considered unreasonable delay to be a factor to be taken into account in refusing or fashioning a remedy or in weighing the persuasive force or credibility of testimony.
However [at para. 5619]:
. . . delay in initiating or processing a complaint should not be considered a basis for dismissing the complaint at the outset of the proceedings before a board of inquiry unless it has given rise to a situation in which the board of inquiry is of the view that the facts relating to the incident in question cannot be established with sufficient certainty to constitute the basis of a determination that a contravention of the Code has occurred. Having been assigned, by order of the Minister of Labour, a statutorily defined task of undertaking an inquiry to ascertain certain facts, the board of inquiry should proceed to attempt to do so, notwithstanding the passage of considerable time, unless the passage of time has made fulfillment of its task impossible.
Moreover, any delay prior to the appointment of a board of inquiry must have been apparent to the Minister prior to appointing such a board [at para. 5617]:
Once the Minister has appointed a board of inquiry to "hear and decide the complaint," 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.
In any event, he concluded that unreasonable delay had not been established on the facts of that case. More importantly, the respondents had not established that any significant prejudice had resulted from the delay which did occur.
13The Statutory Powers Procedure Act provides:
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.
This subsection appears to provide jurisdiction to dismiss a complaint for reason of delay. However, the delay would have to approach the standard of an abuse of the processes of the tribunal. No such delay could be said to exist in the case before us. Nor is there any specific or substantial prejudice related to the delay which did occur.
14Counsel for the respondent also asserted that the delay in this case constituted a contravention of sections 7 and 11(b) of the Canadian Charter of Rights and Freedoms.
15The section 11(b) argument is based on the assertion that under the Ontario Human Rights Code, the respondent is facing a "penal matter" and is, therefore, in the position of a person "charged with an offence." Counsel for the respondent sought to distinguish the decision in Kodellas v. Saskatchewan (Human Rights Commission) (1987), 1986 CanLII 3336 (SK QB), 8 C.H.R.R. D/3712. There, Mr. Justice McLellan of the Saskatchewan Court of Queen's Bench concluded that proceedings under the Saskatchewan Code [at D/3718, para. 29384]:
. . . do not constitute charging the respondent to the complaint with an offence within the meaning of section 11 of the Charter. The proceedings are not criminal or penal in nature.
Counsel for the respondent argued that the assessment of "criminality" for the purpose of section 11 of the Charter should not focus on a particular provision but should examine the entire legislative scheme and the perception of the conduct in question by the community. However, in my view, the differences in the provisions of the Saskatchewan and Ontario human rights legislation are not sufficient to warrant a different conclusion.
16Moreover, in Re Trumbley and Fleming (1986), 1986 CanLII 146 (ON CA), 29 D.L.R. (4th) 557, the Ontario Court of Appeal concluded that a person charged with a disciplinary offence under the Police Act was not "charged with an offence" for the purpose of section 11 of the Charter. See also R. v. Wigglesworth (1984), 1984 CanLII 2275 (SK CA), 7 D.L.R. (4th) 361 (Sask. C.A.). While leave to appeal has been granted by the Supreme Court of Canada in these cases, this Board of Inquiry is presently bound by them. The "offences" in these cases appear to be more "criminal" in nature than the provisions of the Ontario Human Rights Code. However, neither was held to constitute an "offence" for the purposes of section 11 of the Charter. Attempts to distinguish these cases on the basis that they are restricted to disciplinary proceedings, simply are not convincing. Indeed, as counsel for the Commission has argued, the conduct in the Kodellas case, supra, involved an alleged criminal assault. Even in these circumstances, section 11 was held to be inapplicable.
17The argument based on section 7 of the Charter relies upon the Kodellas decision. It was pointed out that there the delay was much less than in the present case, yet the Court applied section 7 to prohibit a board of inquiry from proceeding. The Court accepted the argument that the delay prevented the respondent from presenting a full answer and defence to the complaint by damaging his ability to marshall and present evidence.
18However, the Court also pointed out that each case must be examined separately:
Here we are concerned with incidents alleged to have occurred in a restaurant. Employees in the restaurant industry are very transitory. Those employees are the witnesses that the applicant says are crucial to his case.
As indicated earlier, no specific circumstances suggesting potential prejudice could be demonstrated in the present case.
19Since the nature of the delay does not support the application of section 7 to the facts of this case, there is no need to discuss the legal issues related to its applicability. However, it does not appear that the Kodellas decision would support the contention that "security of the person" is affected in the present case. There, the Court concluded that [at D/3719, para. 29398]:
. . . being subject to a monetary penalty and allegations which would adversely affect personal and business opportunities and enjoyment are not rights protected by section 7.
The Court emphasized that the complaints contained allegations of sexual assaults and expressed concern that such allegations would be assessed without procedural protections appropriate to the seriousness of such charges.
20The preliminary motion of the respondent is dismissed and the hearing will proceed on December 7, 8 and 9, 1987 and January 13, 14 and 15, 1988.
21Appendix "A"
Date
Event
November 12, 1982
Complaint of Muhammad Saleem Quereshi filed with the Ontario Human Rights Commission as against the Board of Education for the City of Toronto, its servants and agents, West Park Secondary School, Central High School of Commerce, Lawrence Park Collegiate Institute and Central Technical School.
January 20, 1983
The Ontario Human Rights Commission advises the Respondents of the Complaint, filed.
March 14, 1983
Respondents Statement of Fact and Law forwarded to the Ontario Human Rights Commission addressing the allegations of discrimination with regard to all schools mentioned within the Complaint
April 29, 1983
Fact finding conference.
December 21, 1984
Conciliation meeting.
June 13, 1985
The Ontario Human Rights Commission forwards to the Respondents the Officer's Report to the Complaint and advises that the matter will be placed on the agenda of the Ontario Human Rights Commission. (Exhibit A-1.)
July 25, 1985
The Respondents reply to the Officer's Report.
October 22, 1986
All Respondents notified of the Commission's decision to request the Minister of Labour to appoint a Board of Inquiry pursuant to s.35(1) of the Ontario Human Rights Code, 1981 to hear the Complaint against Central High School of Commerce and the Board of Education for the City of Toronto, its servants and agents only and that the Commission decided not to request that the Minister do appoint a Board of Inquiry with respect to Lawrence Park Collegiate Institute and Central Technical School because the evidence did not support the allegations. With respect to West Park Secondary School, the Commission decided not to request the Minister to appoint a Board of Inquiry as the evidence did not support the allegations.
January 28, 1987
All Respondents notified of the appointment of Professor Ed J. Ratushny as the Board of Inquiry pursuant to s.37(1) of the Human Rights Code, 1981. (Exhibit A-2.)
February 3, 1987
Leith Hunter confirms that Lawrence Park Collegiate Institute, Central Technical School and West Park Secondary School were wrongly served with the proceedings and such service was in error. Further, Leith Hunter advised that there is currently no Human Rights Complaint proceedings as against these schools as instigated by Mr. Quereshi. (Exhibit A-3.)
February 16, 1987
Counsel for the Commission proposes the filing of an Amended Complaint. (Exhibit A-4.)
February 18, 1987
Counsel for the Commission undertook to submit an Amended Complaint to the Respondents within one week's time and to inform the Board of Inquiry that they would be providing both it and the Respondents with an Amended Complaint. (Exhibit A-5.)
February 25, 1987
The Board of Inquiry is informed that counsel are agreed that the Complaint in its present form is not properly before the Board of Inquiry and should not form part of the record in any way. Further, counsel for the Commission would be preparing and presenting an Amended Complaint. (Transcript, p.4–5.)
April 9, 1987
Counsel to the Commission informed the Respondents that an Amended Complaint had been prepared and had been forwarded to Mr. Quereshi for signature and that the Amended Complaint would be forthcoming in the near future. (Exhibit A-6.)
July 17, 1987
The Respondents request the Amended Complaint from the Commission. (Exhibit A-7.)
July 20, 1987
Mr. Quereshi requests of the Ontario Human Rights Commission a Reconsideration of his Complaint. (Exhibit A-8.)
August 12, 1987
Counsel to the Commission advises that Mr. Quereshi has refused to amend the Complaint. (Exhibit A-9.)
August 20, 1987
The Ontario Human Rights Commission informs the Respondents of the request by Quereshi for a Reconsideration of his Complaint. (Exhibit A-8.)
August 24, 1987
The Respondents reply to the request by Mr. Quereshi for a Reconsideration of his Complaint. (Exhibit A-10.)