O.P.E.I.U., Local 267 v. Domtar Inc.(No. 2)
1988-06-30
Ontario Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE, R.S.O. 1980, c. 340
Irene Gohm
Complainant
v.
Domtar Inc. and Office and Professional Employees International Union Local 267
Respondents
Dates of Complaints: October 7, 1981 and November 28, 1981
Date of Decision: June 30, 1988
Before: William F. Pentney
Comm. Decision No.: 331B
COUNSEL — PROCEDURE — motion to bar counsel from participation in hearings
Summary: The Board of Inquiry rejects preliminary motions brought by Domtar Inc. and the Office and Professional Employees International Union, Local 267 regarding the participation in the hearings of counsel for the complainant.
The company and the union argue that the participation of the complainant's counsel should be limited because the complainant is already represented by the Commission, who has carriage of the complaint.
However, the Board of Inquiry rules that the complainant is a party in the hearing pursuant to s. 38(2) of the Ontario Human Rights Code and as such, pursuant to s. 10 of the Statutory Powers Procedure Act, has the right to be represented by counsel, to call and examine witnesses, to conduct cross-examinations, and to make submissions and argument.
The motions are dismissed.
1This is a decision on the preliminary motions of counsel for Domtar Inc. (the "company") and the Office and Professional Employees International Union, Local 267 (the "union") regarding the participation of counsel for the complainant in the hearing of this matter. As agreed at the hearing of preliminary motions in Toronto on May 31, 1988, counsel for all parties submitted written arguments on this motion, after counsel for the complainant outlined the nature of involvement he sought in this matter.
2On May 31, 1988, counsel for the complainant indicated in a letter to all parties that he seeks the following involvement in the hearing:
to attend the hearing, and generally to advise the complainant;
to present opening and closing statements if advised, and to argue any points of law which are in issue;
to call witnesses in support of the complainant's case and to examine and re-examine them in chief;
to examine in chief, and to re-examine in chief, all witnesses called by the Commission, with respect to any matters not covered by counsel for the Commission;
to cross-examine all witnesses called by either of the respondents, with respect to any matters not covered by counsel for the Commission;
to require the production of relevant documents from witnesses.
On June 10 and 14 counsel for the union and the company filed written submissions in support of their request for an order limiting the participation of counsel for the complainant, and counsel for the Commission and the complainant filed written arguments in response on June 21 and 27. The respondents filed replies on June 27. I should also mention that on June 27 counsel for the company objected to the late filing of submissions by counsel for the complainant, and asked that I ignore the submissions of counsel for the complainant.
3While I am inclined to agree with counsel for the company that this tardiness in filing the submission "highlights the dangers which would exist if the Board allows the complainant to be represented by both her own counsel and counsel for the Commission," I am not persuaded that I should completely ignore the submissions of counsel for the complainant. At the hearing on May 31 counsel for the complainant undertook to file submissions by June 20, so that the respondents could file replies by June 27. As noted in the earlier chronology, complainant's submissions were not, in fact, filed until June 27, and no explanation of the delay was tendered. Counsel for the company correctly argues that this delay prevented the respondents from giving proper consideration to the complainant's submissions. However, as will be evident from what follows, my decision on these motions does not rest on the submissions of counsel for the complainant, save in regard to one minor point which will be discussed below.
4Earlier in these reasons I listed the requests of counsel for the complainant as to the scope of his involvement in the hearing. Neither respondent objected to the first request of counsel for the complainant, but they take issue with each of the other requests. In my view it is not necessary to deal with all of the arguments of the respondents at length, because some of these submissions are plainly contrary to the relevant statutory provisions, and others are premature. Pursuant to s. 38(2) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, the complainant is a party to a hearing before a board of inquiry. Section 10 of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484, provides that a party at a hearing is entitled to:
(a) be represented by counsel or an agent;
(b) call and examine witnesses and present his arguments and submissions;
(c) conduct cross-examinations of witnesses at a hearing reasonably required for a full and fair disclosure of the facts in relation to which they have given evidence.
These statutory provisions, in my view, are a complete answer to the submissions on behalf of the respondents to the effect that the complainant is not entitled to be represented by independent counsel, and that the scope of the requests by counsel for the complainant here would create an unfair situation which would breach the rules of natural justice, or constitute an abuse of process. Simply stated, I am at a loss to understand how, in view of these provisions, I can limit counsel for the complainant's participation in the hearing based on an assumption that it will unnecessarily prolong or confuse the hearing to such an extent that it will prejudice the respondents. Although the participation of another counsel in this matter will probably prolong the hearing to some extent, that is a necessary result which flows from the statutory framework outlined earlier, and it cannot be presumed to be unfair or abusive.
5The fact that the Human Rights Commission is given "carriage of the complaint" by s. 38(2) of the Code does not diminish the complainant's right to independent representation. In my opinion, to grant an order such as that requested by the respondents would deny natural justice to the complainant, for whom the hearing in this matter will have significant consequences, and who is denied the opportunity to take other proceedings to vindicate her rights: Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181, [2 C.H.R.R. D/468]. Furthermore, although the interests of the Commission and the complainant may be identical, there is also a real possibility that their positions on matters of law or fact may diverge in the course of the hearing. In any event, the complainant is, by statute, a party to the hearing who is entitled to be represented by counsel with a full right to participate in the hearing. Although the administrative structure thus established may be awkward, that, in itself, is not a basis for denying the complainant her right to participation in, and representation at, this hearing.
6All of this does not, however, sanction wasteful, abusive or duplicative participation by counsel for the complainant. Counsel for the Commission indicated, in para. 3 of his submission, that the participation of counsel for the complainant "would be supplementary to, and not duplicative of, that conducted by the Commission." The only aspect of counsel for the complainant's written submissions that I am prepared to consider is para. 1, in which the submissions of counsel for the Commission are concurred in and adopted.
7Having considered the arguments of counsel for the respondents, and in the light of the undertaking by counsel for the complainant not to duplicate the evidence, arguments or submissions of counsel for the Commission, I am satisfied that no further order should issue on these motions. I want to make it perfectly clear to all parties to these proceedings, however, that I am acutely conscious of the delay which has already occurred in relation to this case, and that I am fully prepared to exercise my discretion pursuant to s. 9(2) and s. 23 of the Statutory Powers Procedure Act in order to ensure that the hearing is orderly, fair and expeditious. No counsel's right to participate in this hearing can alter the basic requirement that the hearing be fair, and that the facts and law be presented as fully and fairly as possible.
8I accept counsel for the union's submission that there is no right of discovery in these proceedings, but in the absence of a specific request for such by counsel for the complainant, no order is necessary at this stage. Finally, I will not make an order regarding counsel for the complainant's request to examine witnesses called by the Commission until the actual hearing.
Order
9The motions of counsel for the company and the union regarding participation by counsel for the complainant in the hearing of this matter are denied.