O.P.E.I.U., Local 267 v. Domtar Inc. (No. 1)
1988-06-14
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
October 7, 1981 and November 28, 1981
June 14, 1988
Before:
William F. Pentney
Comm. Decision No.:
331A
COMPLAINTS — amendment to include fresh incident of discrimination — unreasonable delay in proceeding with complaint — JURISDICTION — unreasonable delay — PROCEDURE — delay as abuse of process
Summary: The Board of Inquiry rules on preliminary motions brought by Domtar Inc. and the Office and Professional Employees International Union, Local 267, the respondents in this case.
The company and the union argue that the Board of Inquiry should dismiss the complaints because of the delay in proceeding with them. The complaints were filed in October and November 1981. The key part of the delay was caused by a decision of the Ontario Human Rights Commission to await the outcome of the appeals in the case of Canadian Human Rights Commission and O'Malley v. Simpsons-Sears, a case which raised a similar issue, before proceeding with this complaint. The respondents argue that their ability to present a defence is prejudiced by the staleness of the claims.
The Ontario Human Rights Commission, relying on the decision of a Board of Inquiry in Hyman v. Southam Murray Printing Ltd., argues that the Board of Inquiry has no jurisdiction to dismiss the complaints because of delay, and, in the alternative, that there was no delay which would justify dismissing these complaints.
The Board finds that it does have jurisdiction to dismiss the complaints but only where to proceed would be impossible or an abuse of process. On the facts of this case the Board finds that there is no reason to dismiss at this stage. It is not impossible to proceed nor is it an abuse of process. The respondents knew of the complaints and were informed of the Commission's decision to delay and the reason for it.
However, the Board indicates that it will entertain motions to dismiss during the proceedings should the respondents suffer undue prejudice in the presentation of their defence.
The Board of Inquiry allows the company's motion to set aside an amendment to the complaint because it alleges a fresh incident of discrimination which, the Board rules, should be the subject of an additional complaint, not an amendment to the existing one.
1On March 17, [1988] I was appointed to act as a board of inquiry to hear and decide the complaints of Mrs. Gohm alleging discrimination in employment on the basis of creed against Domtar Inc. (the "company") and the Office and Professional Employees International Union, Local 267 (the "union"). The hearing convened on April 15, 1988, by conference call, and by agreement of all parties the hearing adjourned until May 31, 1988, at which time we reconvened in Toronto to hear argument on the preliminary motions brought by the company and the union. This decision will deal with the motions argued on May 31 concerning delay. In a subsequent decision I will deal with the respondents' arguments concerning the participation of counsel for the complainant.
2The complaints in this case were originally filed on October 7, 1981, against the union, and November 28, 1981, against the company. The complaints were subsequently amended, and later in these reasons I will consider the company's motion in respect of these amendments. A board of inquiry was appointed to inquire into these complaints in December 1987, and both the respondent company and union argued that I should exercise my discretion to dismiss these complaints because this delay in proceeding, as a matter of law, prejudiced their ability to respond to the allegations made in the complaints. All parties agreed that the key part of the delay was the thirty-eight-month period during which the Ontario Human Rights Commission held these complaints in abeyance, pending the outcome of the various appeals in the case of Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321, [7 C.H.R.R. D/3102]; however, the motions relate to the entire period of delay, and they will be considered on that basis.
3Counsel for the union urged me to dismiss the complaints pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484, or in the alternative under s. 11 of the Canadian Charter of Rights and Freedoms. The union argued that the delay in this case, as a matter of law, works a prejudice to the parties who must defend against "stale" claims. In particular, counsel for the union submitted that in the context of the administrative structures for the processing of complaints under the Ontario Human Rights Code, with the absence of a right of discovery, and no other way of "nailing down the evidence" which may be relevant to a complaint, it is inevitable that the respondents' ability to present a defence will have been substantially prejudiced. Furthermore, counsel for the union argued that the delay would unfairly increase the extent of potential liability of the respondents in the event that I find in favour of the complainant.
4The union argued that the substantial portion of the delay caused by the Commission's decision to hold the case in abeyance pending the outcome of O'Malley was without parallel and without excuse. Unlike the delay caused by the normal administrative procedure, or that found in Re Civil Service Association of Alberta, Branch 45, and Alberta Human Rights Commission (1975), 1975 CanLII 997 (AB SCTD), 62 D.L.R. (3d) 531 (Alta. T.D.), the delay in this case was, according to counsel for the union, occasioned by the unjustified decision of the Commission to "wait until the law turned in its direction" before proceeding with these complaints.
5Counsel for the company adopted the argument advanced on behalf of the union, but emphasized two particular aspects of this argument: First, that a presumption of prejudice to the respondents arose when the case was not proceeded with prior to the expiry of the applicable limitations period; and second, that under the provisions of the former Code, [R.S.O. 1980, c. 340], which governs this hearing, the limitation period is two years, pursuant to the Divisional Court decision in West End Construction Ltd. v. Ontario (Ministry of Labour) (1986), [1986 CanLII 2541 (ON HCJ), 9 C.H.R.R. D/4537], 57 O.R. (2d) 391, [33 D.L.R. (4th) 285, 14 C.P.C. (2d) 167 (sub nom. Tabar v. Scott).
6Counsel for the Ontario Human Rights Commission (whose submissions were adopted by counsel for the complainant) argued that I had no jurisdiction to dismiss the complaints on the basis of delay, and, in the alternative, even if I had such jurisdiction there was no delay in this case which would justify a dismissal. On the first point, counsel urged me to adopt the reasoning of Chairman McCamus in the case of Hyman v. Southam Murray Printing Ltd. (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd. Inq.), pursuant to which delay would provide a basis for dismissing the complaints only if it made it impossible for the inquiry into the complaints to proceed. On this view of the matter, delay might be relevant in my assessment of the evidence, or in respect of the final remedy ordered, but it could not be a basis for dismissing the complaints at the outset of the hearing.
7The alternative argument of the Commission was to the effect that the delay in this case did not warrant the dismissal of the complaints. The Commission urged me to consider, in assessing the impact of the delay: (i) the reasons for the delay; (ii) the prejudice established by the respondents in relation to their ability to present a defence to the allegations; and (iii) the behaviour of the respondents during the period of the delay. Essentially, the position of the Commission was that its decision to hold the case in abeyance pending the outcome of the appeals in the O'Malley case, supra, was a reasonable one, because the facts of this case present legal issues which are identical to those considered in O'Malley, and that the delay caused by this decision was not shown to have created actual prejudice for the respondents. Finally, it was argued that, since the parties did not object when informed of the Commission's decision to hold the case in abeyance, they should not be entitled to relief in respect of the delay caused by this decision.
8The facts of this case are different from the situations considered in the decisions of other boards of inquiry and courts to which I have referred in at least three respects: the delay here is longer than that found in these cases; a significant portion of the delay is attributable to the deliberate decision of the Human Rights Commission not to proceed with the matter; and finally, the respondents have not attempted to demonstrate any concrete prejudice to their ability to present evidence, but rather have argued that the delay, as a matter of law, must be presumed to harm their interests. I must confess that even at the outset of my appointment as a board I was greatly troubled by the delay in the processing of these complaints; frankly, from my current vantage point, 1981 seems very long ago, and it is undoubtedly regrettable for everyone concerned that these complaints are only now being considered by a board of inquiry. Having said that, it remains for me to consider whether this delay should cause me to dismiss these complaints.
9The leading case on delay in the Ontario human rights jurisprudence is Hyman v. Southam Murray Printing Ltd., supra; indeed, all of the parties relied on passages from this decision in their arguments. In this decision Chairman McCamus stated that the mere passage of time would not, in most cases, justify the dismissal of a complaint, because any delay prior to the appointment of a board of inquiry would have been known to the Minister, and presumably considered in the exercise of the discretion vested in him by the statute. The principles which govern the assessment of delay in this context were stated by Chairman McCamus at D/621 [para. 5619]:
My own view is that while unreasonable delay might be a factor to be taken into account in refusing or fashioning a remedy . . . or in weighing the persuasive force or credibility of testimony or other evidence, 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.
These principles have been adopted and applied in subsequent decisions: Tabar and Lee v. Scott and West End Construction Ltd. (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073 (Ont. Bd. Inq.); McMinn v. Sault Ste. Marie Professional Firefighters Assn. (1986), 1986 CanLII 6521 (ON HRT), 7 C.H.R.R. D/3458 (Ont. Bd. Inq.). Subject to one qualification, which is not directly relevant here (i.e, Hyman has been overruled on the question of the applicability of limitation periods in relation to the filing of a complaint by the West End Construction case, supra), I find that Hyman correctly states the appropriate principles to be applied. In view of the decision of the Supreme Court of Canada in R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541, on the meaning of "offence" in s. 11 of the Charter of Rights and Freedoms, I find that s. 11 does not apply to these proceedings.
10In my opinion, a close reading of the Hyman decision does not support the Commission's argument that a board of inquiry lacks jurisdiction to dismiss a complaint at the outset of a hearing. Chairman McCamus held that a board of inquiry should not dismiss a complaint "merely because of the passage of time," because the fact of such a delay would have been apparent to the Minister at the time of the appointment of the board. The essential point in the passage quoted above, in my view, is that, although a board of inquiry has jurisdiction to dismiss a complaint for delay, that jurisdiction should be sparingly exercised. This accords with my understanding of s. 23(1) of the Statutory Powers Procedure Act, which I find empowers a board of inquiry to dismiss a complaint in appropriate circumstances, where to proceed would be "impossible," or an "abuse of process." These circumstances will undoubtedly be rare, but that alone does not affect the basic question of jurisdiction to dismiss.
11Do the circumstances of this case fall within the above-mentioned categories, and should I therefore exercise my discretion to dismiss these complaints? In my view, and after much anxious consideration of the matter, the facts of this case do not warrant dismissal at this stage.
12Counsel for the union and the company argued that the delay in this case may be presumed to have prejudiced their position, and in this respect they sought to distinguish this case from Hyman and other cases. Counsel for the company relied on two cases in support of this argument: Worrall v. Powell and Greater Niagara General Hospital, 1969 CanLII 521 (ON CA), [1969] 2 O.R. 634 (C.A.), and Deaville v. Boegeman (1984), 1984 CanLII 1925 (ON CA), 48 O.R. (2d) 725 (C.A.). The Court of Appeal in Worrall found that the plaintiff's failure to file a statement of claim for four and one-half years after the issuance of a writ created a presumption of prejudice to the defendants, in part because the action was not pursued until after the limitation periods had expired. As in the case before me, Worrall involved an action that was commenced within the appropriate limitation period, but not pursued in a timely manner. Unlike the instant case, however, in Worrall (as the Court emphasized at p. 635):
There [was] absolutely nothing in the material filed on behalf of the plaintiffs in the Courts below to establish any explanation or excuse whatsoever for the inordinate delay.
13In my opinion Worrall can be distinguished from this case on the basis that here the Commission has explained the reasons for the delay, and thus rebutted the presumption, and also on the basis that in Worrall the presumption of prejudice can be explained by the fact that until the statement of claim was filed, the defendant would not know of the particulars of the claim by the plaintiff, and thus could not take steps to gather or preserve the relevant evidence. The presumption of prejudice, in the context of a civil action, therefore has no application to this human rights proceeding; although the respondent company would undoubtedly have preferred to have more details about the allegations, there is no reason to presume that the complaint did not provide sufficient details about the matter to enable the company to take appropriate steps. In this regard I find that the civil procedure context in Worrall is significantly different than the process involved in this case, and that the rule established in Worrall therefore does not apply in these proceedings.
14The decision in Deaville v. Boegeman, supra, concerns an attempt to amend a statement of claim by adding another party and another claim, and is thus more relevant in relation to the company's second motion; but it is also relevant here because of the general comments of MacKinnon A.C.J.O. on the importance of limitation periods and the public interest in timely litigation. For the reasons given earlier I do not find the Court's ruling that there is a presumption "however slight in some cases" of prejudice to the defendants upon the expiry of a limitation period to be applicable in the circumstances of this case. The general comments of Associate Chief Justice MacKinnon on the importance of timely pursuit of litigation are germane to this case, particularly because they mirror the concerns about "stale claims" expressed by the Divisional Court in the West End Construction case, supra. The purpose of limitation periods, according to MacKinnon A.C.J.O., is to protect the security of members of society by preventing unknown or otherwise untimely claims from being advanced. Although I have concluded that the presumption of prejudice does not apply to these proceedings, the following passage from the judgment (at p. 730) indicates the justification for the presumption, and is relevant in this case:
It may be that the mere recitation of the facts and history of the case makes it clear there is no prejudice to the defendant and it can be inferred that he knew, within the limitation period, of the case and the nature of the claims now being made against him.
This is relevant, in my opinion, as one factor to be considered in assessing whether, pursuant to s. 23(1) of the Statutory Powers Procedure Act, an order dismissing these complaints is required.
15The complaints here were filed in a timely manner, and so there is no question of the union or company now being "surprised" by unexpected allegations. Furthermore, after the commencement of the investigation of these matters the Commission decided to hold the complaints in abeyance pending the outcome of the appeal(s) in the O'Malley case, and the respondents were duly informed of this decision. Although I accept the union's argument that acquiescence should not be implied merely from the failure of the respondents to take legal proceedings to challenge this decision, it does appear to me that the respondents cannot now assert that they presumed that the matter had been abandoned, because they had been informed by the Commission of the reasons for its decision not to proceed with the investigation.
16I therefore conclude that the delay in this case, though unfortunate for everyone concerned, does not make it impossible to continue with this inquiry, nor does it constitute an abuse of the process. At this stage, therefore, I will not dismiss these complaints. The delay will undoubtedly affect the presentation of the evidence, particularly oral testimony, and it may be a consideration in respect of the remedy ordered. The facts giving rise to this complaint occurred on or before October 1981, and it is inevitable that everyone involved with this hearing will therefore have to contend with "stale" evidence. That is unfortunate, but, like Chairman Zemans in the McMinn case, supra, I do not think that it is "grounds to deny relief to a blameless party to the proceedings . . ." — namely, the complainant. In the context of the Human Rights Code, in my opinion, it is necessary to consider the interests of all of the parties in the timely resolution of a complaint, and it is also necessary to remember that the complainant has no other recourse than to file a complaint with the Human Rights Commission to vindicate her rights under the law (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]). Doctrines which have developed in the civil context, where a party has independent control over the prosecution of an action, cannot therefore be transported directly into the domain of human rights law, where a complainant is, in respect of the timely processing of the complaint, at the mercy of the Commission. The dismissal of a complaint, then, is a harsh and final solution which should be utilized only in clear cases.
17I do not want to leave this discussion without emphasizing that this decision does not foreclose the possibility that at some point during the hearing it may appear that the complaints should be dismissed because the respondents are suffering undue prejudice in the presentation of their defence, or it is otherwise impossible to proceed. I will entertain motions on this matter at any time during the hearing, and I will reconsider the issue on the basis of the evidence before me at that time.
18Counsel for the company brought a second motion asking me to set aside the amendments of the complaint made on August 5, 1986, by which new allegations of discrimination relating to subsequent incidents were added, and the amendment made on March 10, 1987, by which "Mr. R. J. Eamer, Manager," was added as a respondent. The first amendments apparently relate to an attempt by the complainant to seek re-employment with the respondent company, and the Commission argued that these amendments merely constituted further particulars of the original complaint. The company argued that these were separate and distinct complaints, which were statute-barred by the Limitations Act, R.S.O. 1980, c. 240, s. 45(1)(h).
19The amendments state:
On or about February 10, 1982, I applied for a Junior Laboratory Technician position at Domtar Inc., Red Rock, Ontario, which was advertised in the Times News on or about February 12, 1982.
On or about February 25, 1982, Domtar Inc. told me that my application could not be considered as I could not meet the job requirement of working every sixth Saturday.
I accept the argument of the company in relation to this amendment. I cannot understand how these amendments, which relate to a separate and distinct incident of alleged discrimination which occurred several months subsequent to the filing of the original complaints, could constitute further and better particulars of those original complaints. Although, as the Commission asserts, the complainant may not seek specific relief in respect of these incidents, that does not alter the fact that they concern a distinct and different incident and are, in substance, a fresh complaint. If the Commission or the complainant wishes to lead evidence as to these incidents I will consider any motions in respect of that during the hearing. At this stage, however, I find that the amendment of the complaint of August 5, 1986, which added paragraphs 9 and 10, was improper, as it was outside of the limitation period.
20The addition of Mr. Eamer as a respondent, however, does appear to me to be properly considered as within the scope of an "amendment to a complaint" pursuant to s. 38(2)(d) of the Human Rights Code: see Tabar and Lee v. Scott and West End Construction Ltd., supra. The company has sought to obtain better particulars of the complaint against Mr. Eamer, but because, by an oversight, no copy of the complaints was filed at the preliminary hearing and I therefore do not know the precise contents of the complaints, I am not prepared to order the Commission to provide such particulars.
Order
211. The preliminary motions of the union and company that I dismiss the complaints due to delay are refused.
The amendment of the complaint of August 5, 1986, which added paragraphs 9 and 10, is set aside.
The hearing will reconvene in Thunder Bay, Ontario, on July 7, 1988, at 10:00 a.m. in the Airlane Hotel.
Counsel for the parties agreed to provide written arguments on the question of the participation of counsel for the complainant in the hearing, and I will issue a further preliminary decision on this matter prior to July 7, 1988.