Ontario Board of Inquiry
CHRR Doc. 90-012
Margaret Tomen and Linda Logan-Smith
Complainants
v.
Ontario Teachers' Federation (OTF) and Ontario Public School Teachers' Federation (OPSTF)
Respondents
Before: Ontario Board of Inquiry, D. J. Baum
Comm. Decision No.: 354A
ADJOURNMENT — PROCEDURE — request for adjournment pending outcome of court challenge to union membership by-law — BOARDS OF INQUIRY / ADJUDICATION — final decisions only subject to appeal — obligation to act expeditiously
Summary: This is an interim decision of the Board of Inquiry appointed to hear and decide the complaints of Margaret Tomen and Linda Logan-Smith against the Ontario Teachers' Federation and the Ontario Public School Teachers' Federation.
Margaret Tomen and Linda Logan-Smith allege that a by-law of the Ontario Teachers' Federation (OTF) violates their right to be free from discrimination because of sex. The by-law requires all women elementary school teachers to belong to the Federation of Women Teachers' Associations of Ontario (FWTAO), which is one of the OTF's affiliates, while all men elementary school teachers must belong to another affiliate, the Ontario Public School Teacher's Federation (OPSTF).
At issue here is a request from the FWTAO that the Board of Inquiry adjourn its proceedings until a court challenge to the by-law is completed. The by-law is being challenged in separate proceedings by Margaret Tomen on the grounds that it offends the Charter of Rights and Freedoms and the principles of corporate law.
The Board of Inquiry rejects the request for an adjournment. While a decision of a court striking down the by-law would render the proceedings under the Human Rights Code moot, the Board of Inquiry finds that it has the power to decide its own procedure and the obligation to act expeditiously on the complaints before it.
The request for an adjournment is denied.
Cases Cited
Board of Education for City of London and Federation of Women Teachers' Associations of Ontario (1984), 1984 CanLII 5267 (ON LA), 16 L.A.C. (3d) 366: 23
Cedarville Tree Services Ltd. v. Labourers' International Union of North America, Local 183 (1972), 1971 CanLII 341 (ON CA), 22 D.L.R. (3d) 40 (Ont. C.A.): 13
F.W.T.A.O. v. Ontario (Human Rights Comm.) (1988), 1988 CanLII 4794 (ON HCJ), 10 C.H.R.R. D/5877 (Ont. Div.Ct.): 6
Roosma v. Ford Motor Co. of Canada (1988), 1988 CanLII 4851 (ON HCJ), 10 C.H.R.R. D/5761 (Ont. Div.Ct.): 30
Shaughnessy Hospital Society and Hospital Employees' Union, Local 180 (1984), 1984 CanLII 5175 (BC LA), 16 L.A.C. (3d) 341: 17
Winnipeg School Division v. Craton (No. 1), 1985 CanLII 48 (SCC), [1985] 2 S.C.R. 150, 6 C.H.R.R. D/3014: 26
Legislation Cited
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11: 1
I
1On October 14, 1988, a preliminary hearing was held in the above-named matter. Counsel for the Federation of Women Teachers' Association of Ontario (the "FWTAO") requested an adjournment pending hearing and decision on an application for judicial review that challenged, inter alia, the establishment of the Board of Inquiry. Counsel for the Ontario Teachers' Federation (the "OTF") asked for an adjournment pending decision of an appeal presently before the Ontario Court of Appeal in which a by-law central to these proceedings is being challenged both as a matter of corporate law and under the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.
2To facilitate full argument, I imposed upon the FWTAO the status of intervener with all of the rights that would vest in a party to these proceedings. I did this in the exercise of what I believed to be the inherent jurisdiction of a board of inquiry relative to the control of its own proceedings. I did it also to preserve all the rights that the FWTAO now has or may later assert. Finally, I did it to give a juridical context for the arguments made by the FWTAO. There was no objection by the Commission or by the parties respondent to this decision.
3As noted on the face of this decision, there were other interveners. All of them commented upon the requests for adjournment. Written submissions and books of authorities were also presented.
4At pp. 51–53 of the hearing transcript, Ms. Lennon stated:
. . . The issue [for judicial review] is whether this Board [of Inquiry] should even have been appointed. The challenge was pursued expeditiously and is to be heard in four days. The parties have already been involved in extensive court proceedings in relation to these issues. The complaint was initiated more than three years ago, and the Logan-Smith complaint would appear to be identical in substance, and the brief delay which would result from the granting of this motion would not affect the ability of the complainants to present their case.
The system which is being challenged here has existed for forty-four years and it would appear, on our review of the [Human Rights] Code and its predecessors, that these complaints could have filed [sic] in substantially this form any time these last fifteen or twenty years. There is simply, in our respectful submission, no rush and if my client is forced to defend its interests before a board [of inquiry] which it says should never have been appointed before it can have that issue heard and determined, it will be deprived of any meaningful opportunity to correct the [Human Rights] Commission's misconduct.
. . . [I]t is clearly, in light of all those circumstances, just and convenient . . . that this matter be adjourned this afternoon at this point, not recommence until the Divisional Court has finally disposed of the application for judicial review.
5I determined to set additional dates for hearing, pending my ruling on the motion for adjournment. I further allowed certain "housekeeping" matters to be presented. In doing this, I reserved any right to object in the FWTAO. As a practical matter, it seemed clear that the application for judicial review would be determined before I had the opportunity to review the transcript of the hearing before me as well as the written submission presented there.
6In accordance with the calendar dates indicated by counsel, the application for judicial review came before Divisional Court. Following four days of hearing and deliberation, the Court gave its decision on December 23, 1988 [F.W.T.A.O. v. Ontario (Human Rights Commission)(1988), 1988 CanLII 4794 (ON HCJ), 10 C.H.R.R. D/5877]. The Court was asked to grant the following relief:
(i) An order quashing the decisions of the Human Rights Commission dated June 22, 1988 and August 24, 1988 respectively, to request the Minister to appoint a Board of Inquiry with respect to the complaints of Margaret Tomen and Linda Logan-Smith;
(ii) An order prohibiting Dr. Daniel Baum, the appointed Board of Inquiry, from proceeding to hear these complaints;
(iii) An order staying the processing of the complaints of Margaret Tomen and Linda Logan-Smith;
(iv) In the alternative, an order staying the processing of the complaints until the issue of the validity of a by-law passed by the Ontario Teachers' Federation (the "OTF") has been disposed of by the courts;
(v) If the order requested in (iv) is granted, an order that the Commission recommence the processing of both complaints only after naming the applicant (the FWTAO) as a party and permitting the applicant all the rights and privileges of a party in the processing of a complaint under the Human Rights Code, 1981; and
(vi) a declaration and order that the applicant should have party status and full right to participate before any board or boards in inquiry convened in connection with these complaints.
7In the result, the Court dismissed the application for judicial review. It addressed itself to the issues raised by the FWTAO and the OTF. The Court concluded at p. 42 [D/5888]:
The application for judicial review is dismissed. The Board of Inquiry was properly appointed and has jurisdiction to deal with both complaints. This Court is not willing to stay proceedings before the Board of Inquiry pending the outcome of the proceedings in the Court of Appeal, but this is without prejudice to whatever decision the Board may reach on the issue. The Board has the right to control its own procedure and this Court does not wish to interfere with the decision presently under reserve by the Board.
8The Court reviewed the background of the matter generally and the two complaints of Ms. Tomen and Ms. Logan-Smith particularly. I quote from pp. 3–5 [D/5878] of the Court's opinion:
Pursuant to the Teaching Profession Act, R.S.O. 1980, c. 495 s. 4, every teacher (but for narrow exceptions) in an Ontario elementary or secondary school must be a member of OTF, a statutory body constituted as a body corporate by s. 2 of the Act. The Act refers to five teachers' affiliate organizations which are each constituted as corporations without share capital. These five affiliates are: (i) the Federation of Women Teachers' Association (FWTAO); (ii) the Ontario Public School Teachers' Federation (OPSTF); (iii) the Ontario Secondary School Teachers' Federation; (iv) the Ontario English Catholic Teachers' Association; and (v) l'Association des enseignants franco-ontariens (AEFO). By registered Order in Council 147/79, as amended, a provincial regulation passed pursuant to the regulatory powers of the OTF under s. 12 of the Teaching Profession Act, all five affiliates are required to be members of the OTF.
The Act and its regulations, however, are silent as to the constitution of, or membership in, the five affiliates. The OTF, therefore, passed a by-law regulating membership in the various affiliates. This by-law, as amended, known as By-Law I, requires compulsory membership of specified classes of teachers in particular affiliates. It requires, inter alia, all female teachers teaching all or a major portion of their assignments in an elementary public school to be members of FWTAO and all male teachers teaching all or a major portion of their assignments in an elementary school to be members of OPSTF.
The two individual respondents in this application, Margaret Tomen and Linda Logan-Smith are currently required by By-Law I to be members of FWTAO. They both wish, however, to become full members of OPSTF (both are already voluntary members of OPSTF but this limited membership does not permit OPSTF to collect their dues nor represent them in collective bargaining.)
Ms. Tomen filed a complaint with the Commission on August 6, 1985 naming the OTF and OPSTF as respondents alleging that she was refused full membership in OPSTF because of her sex, contrary to s. 5 and s. 8 of the Code. Section 5 grants, in part, every person a right to equal treatment with respect to membership in an occupational association without discrimination because of sex and s. 8 prohibits any person from infringing this right to equal treatment.
By letter dated April 18, 1985, Ms. Tomen had applied to OPSTF for full membership but her application was denied on the basis that By-Law I of the OTF forbids her from full membership in OPSTF. Ms. Tomen then appealed this decision to the OTF Executive but her appeal was rejected by the OTF, by letter dated June 12, 1985.
Ms. Tomen has also instituted court proceedings, along with OPSTF, challenging the validity of By-Law I on the grounds that it violates the Charter and is ultra vires the OTF as a matter of corporation law. By-Law I has been upheld by the High Court (Re Tomen et al. (1987), 1987 CanLII 4396 (ON HCJ), 61 O.R. (2d) 489) but is currently being appealed by Ms. Tomen and the OPSTF to the Court of Appeal. The appeal was perfected April 14, 1988.
Ms. Logan-Smith filed a similar complaint with the Commission on May 19, 1988. She, too, is alleging violations of s. 5 and s. 8 of the Code by OTF and OPSTF. She had applied by letter dated December 16, 1986 to the OTF to become a full member of the OPSTF, which application was denied by the OTF by resolution passed at its meeting on June 19, 1987. Her appeal to the OTF Executive was denied on February 27, 1988. She further appealed to the Board of Governors of the OTF on April 9, 1988 but the Board of Governors refused to hear her request. Ms. Logan-Smith is not a party to the Court proceedings.
9The last issue with which the Court dealt in the application for judicial review was a request for a stay of proceedings under the Human Rights Code pending the outcome of the civil issues now before the Ontario Court of Appeal. The Court summarized the arguments presented by the FWTAO and OTF at pp. 38–39 [D/5887]:
FWTAO's submission is that the validity of By-Law I, both on the basis of the Charter and as a matter of corporate law, will be decided by the Court of Appeal. Should the Court of Appeal overturn the by-law, any further proceedings under the Human Rights Code would become moot. It is further argued that there is considerable identity between the issues and the evidence presentable on the issues before the Board of Inquiry and Court of Appeal, particularly with regard to arguments concerning s. 15, the equality provision of the Charter, and s. 13 of the Code. The Court of Appeal will be faced with the Charter issue as to the applicability of s. 15(2) dealing with affirmative action programs and the Board of Inquiry will deal with the applicability of s. 13 of the Code concerning "special" programs.
The OTF argues, in addition, that if the Board of Inquiry is permitted to proceed, there will be a multiplicity of proceedings and a risk of conflicting decisions between the Court of Appeal and the Board as to whether By-Law I is a "special program." It is further argued that since this is a "family" matter between teachers, not the public, there is no prejudice or harm to the complainants if the Human Rights Code proceeding is stayed.
10The Court responded to these arguments by stating that the role of the Human Rights Commission as representing the public interest must be considered when deciding whether to stay its proceedings. In this regard, the Court offered three separate reasons in support of its decision not to stay the proceedings at p. 41 [D/5888]:
(1) Any stay could become quite lengthy.
Should the Court of Appeal uphold the by-law, proceedings before the Board would be recommenced. This might not occur for many months to come. Should the Court of Appeal overturn the by-law, proceedings before the Board indeed would become moot. However, given the tenacity and vigour of all concerned parties thus far in either supporting or condemning the current wording of the by-law through several years of Court proceedings, it is quite conceivable that the Court of Appeal may not have the final word as to the validity of the by-law. Thus, any stay could conceivably be a lengthy one.
(2) The dispute is not merely a "family" matter. Where allegations involving violations of the Human Rights Code are involved, then by definition issues relating to the public interest are raised.
I accept that the Board's purpose is to provide expeditious relief through its expertise and that delay thwarts this purpose. I do not agree that the dispute is merely a "family" matter. Any time allegations of discrimination in violation of the Human Rights Code are made the public interest is involved. Since any stay could be lengthy, I do not believe that it is in the public interest to delay proceedings before the Board. As a matter of balance and convenience, taking into account the public interest, no stay should be granted.
(3) The issue of a stay is presently before the Board of Inquiry.
I am also reluctant to grant a stay because the Board has currently reserved its decision on the same question. It may be premature to grant a stay when the Board is presently and, in my view, properly seized with the same issue.
II
11The Court has said that the complaints are properly before this Board of Inquiry. But, the Court has left it to the Board to determine whether an adjournment should be granted. In so doing, the Court also afforded a context for which I am grateful. That context is the public interest as reflected in the Human Rights Code.
12My role is that of a statutory tribunal. The parameters for the exercise of jurisdiction are prescribed by statute, namely, the Human Rights Code. Save in matters relating to the interface of the Code with other statutes or the Charter of Rights and Freedoms, I am not free to stray from the confines of the Code.
13All parties and interveners have cited in support of their position either for or against an adjournment Re Cedarville Tree Services Ltd. v. Labourers' International Union of North America, Local 183 (1972), 1971 CanLII 341 (ON CA), 22 D.L.R. (3d) 40 (Ont. C.A.). The substantive issue related to whether employees for whom certification was sought were excluded from the protection of the Labour Relations Act because they were horticultural workers. In passing on the issue, the Court below indicated that the Labour Relations Board should hear evidence and make a decision. However, if a jurisdictional question is raised going to the power of the Board to determine the matter, then the case should be adjourned pending resolution by the Court.
14It is interesting to note, as the Court of Appeal did, that neither of "the other counsel endeavoured to support the statement of Wright J. (the Court below) in this regard and, on the contrary, indicated that, in their view, the procedure suggested would unduly hamper the expeditious proceedings before the Board." (supra, at p. 46)
15In the result, the Court of Appeal made it clear that the formula set out by Wright J. was unacceptable. Rather, a broad discretion had to be afforded administrative agencies or statutory tribunals in the exercise of their functions. At pp. 49–50, the Court of Appeal stated:
It is clear to me that under the Labour Relations Act the Board is master of its own house not only as to all questions of fact and law falling within the ambit of the jurisdiction conferred upon it by the Act, but with respect to all questions of procedure when acting within that jurisdiction. In my view, the only rule which should be stated by the Court (if it be a rule at all) is that the Board should, when its jurisdiction is questioned, adopt such procedure as appears to it to be just and convenient in the particular circumstances of the case before it. While it may be convenient, if a motion for certiorari is later brought, to have a record from the Board in which the factual background of the issue of jurisdiction is fully explored, this is not a necessary prerequisite to the exercise of the of [sic] jurisdiction of the Court. An applicant is entitled to put before the Court in any way he chooses the facts necessary to determine the question of jurisdiction.
Two further principles should be remembered. It is clear from the judgment of the majority of the Supreme Court of Canada in Bell v. Ontario Human Rights Commission (1971), 1971 CanLII 195 (SCC), 18 D.L.R. (3d) 1, that a party affected or about to be affected by the action of an administrative tribunal is not required to wait until that tribunal has brought the particular matter to a conclusion before invoking the jurisdiction of the Supreme Court on the basis that the tribunal is acting without jurisdiction. . . .
It is also clear law that such a tribunal is not required to bring its proceedings to a halt merely because it has been served with notice for an order of certiorari or prohibition. It is entitled, if it thinks fit, to carry its pending proceedings forward until such time as an order of the Court has actually been made prohibiting its further activity or quashing some order already made by which it assumed jurisdiction.
In conclusion, therefore, it is my view that it has been a mistake in the past, and it would be a mistake now, to endeavour to lay down a course of procedure to be followed by the Board when its jurisdiction is questioned, and it appears that the matter is one which may perhaps be tested in the Supreme Court. The Board has been entrusted with very wide powers in the labour relations field, and so long as it acts within the ambit of its jurisdiction, it is for the Board itself to decide how it shall proceed. If procedural guidelines of a mandatory nature are to be laid down, they should come from the Legislature and not from the Court.
16To repeat, there is a wide discretion to be exercised by a board of inquiry in terms of whether to grant an adjournment pending a judicial challenge to jurisdiction. But that discretion is to be exercised in the context of what is just and convenient in relationship to the law establishing the tribunal, and that law in this matter is the Human Rights Code.
17Counsel for the FWTAO cited a number of labour arbitration awards in terms of how discretion should be exercised. For example, reference was made to the award in Re Shaughnessy Hospital Society and Hospital Employees' Union, Local 180(1984), 1984 CanLII 5175 (BC LA), 16 L.A.C. (3d) 341 (Hope). Under the provincial Labour Code, union and management in the final analysis are obliged to resolve their disputes as to the interpretation or administration of collective agreements by arbitration through nominees of their own choosing. But, if there cannot be agreement on an impartial chairperson, then the Minister may designate the individual to hear and determine the contract issues in dispute. (This, as the parties well understand, is not an unusual provision. It exists in substantially the same form under the Ontario Labour Relations Act.)
18In any event, the parties in Shaughnessy had a dispute under the collective agreement. They were unable to agree upon an independent chairperson, and the Minister appointed that individual to hear and determine the issues in question. At that point, the union notified the ministerially-designated chairperson that it intended to challenge the appointment on the ground that the Minister lacked the authority to act as he did. (For our purposes, it is not important to know the substantive basis of that challenge other than the fact that it went to the jurisdiction of the Minister.) Further, the union stated that it did not intend to appear at any arbitration hearing called by the chairperson.
19The arbitrator cited the Cedarville case in terms of allowing him the discretion as to proceeding with the arbitration on the merits. In his mind, there was no question that such power existed to call a hearing and resolve the issues in dispute. However, in the exercise of his discretion, he chose not to do this.
20His reasons were related to public policy in terms of labour relations. That policy can be expressed as one which encourages collective bargaining between union and management. The hope is that the parties will arrive at an agreement which the state will enforce. Disputes under that agreement are to be resolved by the parties themselves. Should they be unable to resolve any dispute going to the interpretation or administration of the agreement, then the state has imposed compulsory arbitration as a way to have a final ruling on the matter. Out of this process, the state hopes to achieve the public policy end of industrial peace.
21So it was that the arbitrator stated at pp. 346–7:
Compelling the union to proceed would amount to compelling it to appear before an arbitrator it did not select and to participate in a process it considers inappropriate to the nature of the dispute. Whether the union is right or wrong in its position, it clearly is of the view that a serious issue of jurisdiction exists and it has taken steps to have the issue addressed. Those same factors bear on a decision to proceed in the absence of the union, even though the union was absent voluntarily.
I agree with the hospital that I am empowered to proceed in the absence of the union and over its objections but I do not consider that it would be just and convenient to do so in these circumstances. The return date of the Supreme Court proceedings is near at hand. The jurisdictional issue is seen by the union as a serious matter, and I am doubtful that any proceedings taken ex parte would stand the test of time and would achieve the objective of providing a final and binding resolution of the dispute.
I feel it necessary to point out that I would have considered it inappropriate to adjourn these proceedings if there had been any indication of a lack of bona fides in the union in its jurisdictional objection. Similarly, I would have considered it inappropriate if there had been evidence of urgency in the proceedings or any significant delay in pursuing the jurisdictional challenge. Finally, I agree that an adjournment should not be granted if there is any indication of real prejudice to either party.
22The arbitrator adjourned the hearing because he felt that permitting judicial review would further the process leading to a final resolution of the dispute under the collective agreement. In this regard, he believed that the judicial challenge would be heard and resolved quickly.
23In the context of the public policy goal of dispute resolution through arbitration there was [sic] only the interests of the two parties to consider: the company and the union. In this sense, it can be said that the matter was a "family affair." Under the circumstances, it made sense to adjourn if neither the company nor the union would be harmed. (See Re Board of Education for City of London and Federation of Women Teachers' Associations of Ontario (1984), 1984 CanLII 5267 (ON LA), 16 L.A.C. (3d) 366 (Burkett) at pp. 371–2):
In deciding whether or not to exercise its discretion to adjourn in the face of a motion for judicial review of an interim decision to assert jurisdiction an arbitrator must be satisfied by the party seeking the adjournment that it will be prejudiced if the hearing on the merits is not adjourned. If satisfied that the party seeking the adjournment will suffer prejudice if the hearing on the merits proceeds contemporaneously with the judicial review, the arbitrator must then consider the prejudice to the other side in adjourning and, on a balancing of the respective interests, decide whether or not to adjourn. I do not accept that there is a hard and fast practice followed by arbitrators in the exercise of this discretion. Each case must be decided on its own merits.
24The OTF seemed to draw an analogy between public policy as to labour relations and human rights legislation. In the application for judicial review, the Court rejected the analogy. Disputes under the Human Rights Code are not a "family matter." Though I earlier quoted this portion of the Court's ruling, it deserves repetition:
I do not agree that the dispute is merely a "family" matter. Any time allegations of discrimination in violation of the Human Rights Code are made the public interest is involved.
25I fully subscribe to this view: the public interest includes and transcends those of the complainants and the respondents. The public interest is in the vindication of those rights identified by legislation as human rights and, as such, subject to protection.
26At this date, there can be no question that human rights legislation constitutes a law of a special kind. It does not rise to the level of supremacy represented by the Charter of Rights and Freedoms. (Indeed, was we well know, human rights legislation is subject to meeting the minimum standards set out by the Charter.) Still, human rights legislation is general in nature and remedial in scope; it is to be given a liberal interpretation — even in the face of conflicting law. In Winnipeg School Division v. Craton, 1985 CanLII 48 (SCC), [1985] 2 S.C.R. 150, [6 C.H.R.R. D/3014], the Supreme Court of Canada considered the application of provincial human rights legislation against age discrimination which conflicted with provisions in the provincial Public Schools Act that permitted school boards to fix a compulsory retirement age for teachers at not less than 65 years. The Court addressed not only the purpose of human rights legislation but also its relationship to other conflicting laws. Speaking for the Court, McIntyre J. stated at p. 156 [D/3016 C.H.R.R.]:
Human rights legislation is of a special nature and declares the public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed. Nor may exceptions be created to its provisions, save by clear legislative pronouncement. To adopt and apply any theory of implied repeal by later statutory enactment to legislation of this kind would be to rob it of its special nature and give scant protection to the right it proclaims. In this case it cannot be said that s. 50 of the 1980 consolidation is a sufficiently express indication of a legislative intent to create an exception to the provisions of s. 6(1) of the Human Rights Act.
27For the reasons stated above, I cannot accept the analogy of labour arbitration cases in which adjournment was sought to those concerning boards of inquiry under the Human Rights Code. To repeat, there is a public interest in ending those practices which, should the evidence so indicate, impinge upon those rights protected by the Code.
28Still another ground was set out for adjourning this matter: the challenged practice is one that has been in place for many years. If there were a need for expeditious treatment, then the Commission should have acted long ago. (I refer to para. 4 of this award and the comments of Ms. Lennon.)
29I accept for the purpose of this award the factual statements made by Ms. Lennon. Yet, having done so in the exercise of my discretion as a board of inquiry, I must reject the argument insofar as it relates to proceeding with this matter. I said before that I am constituted as a statutory tribunal. My frame of reference is the Human Rights Code. That Code clearly imposes on a board of inquiry a duty to be expeditious in carrying out its responsibilities:
Ӣ The hearing must commence within thirty days of the appointment of the Board of Inquiry.
Ӣ The Board's findings and decision are to be made within thirty days following the conclusion of the hearing.
30In Roosma v. Ford Motor Co. of Canada(1988), 1988 CanLII 4851 (ON HCJ), 10 C.H.R.R. D/5761 (Ont. Div. Ct.), the Court had before it two appeals from preliminary rulings made by a board of inquiry. If the Court had treated the matters as appeals rather than applications for judicial review, then the cases would have been stayed before the Board of Inquiry pending decision by the Court.
31To resolve the question, the Court, in effect, determined that the statutory scheme of the Human Rights Code required expeditious hearing once the matter was before a board of inquiry. Accordingly, appeals that allowed for stays, said the Court, should be interpreted to mean appeals from final decisions of a board of inquiry. Reid J., speaking for the Court, stated at D/5762–63:
The question is, should "decision or order" be read to mean "final," as the Commission contends? Or should it be read to mean "any" decision or order, which would include interlocutory decisions or orders, as appellants contend?
It is a truism that words in a statute must be interpreted in the context of the whole statute. Broadly speaking, the Code is human rights legislation designed to effect the expeditious disposition of complaints on various grounds including race and religion. Persons who believe their equality rights have been infringed may file a complaint with the Commission under the Code s. 31. Thereupon, the Commission is required to investigate the complaint and attempt to achieve a settlement, subject to its right to reject the complaint on one or another of such grounds as that it is frivolous or outside the Commission's jurisdiction: ss. 32, 33. Should the Commission deem it appropriate and the evidence warrant one, the Commission may request the responsible Minister to appoint a board of inquiry.
On receipt of a request, the Minister shall appoint a board, which according to s. 38, "shall hold a hearing to determine" whether a right of the complainant has been infringed, who infringed it, and what action is appropriate. The hearing must be commenced within thirty days of the appointment (s. 38(1)), and the board "shall make its finding and decision within thirty days after the conclusion of its hearing". (s. 40(7)). The Commission has carriage of the complaint in the hearing before the board: s. 38(2).
The board is given a number of specific order-making powers, where it finds, after a hearing, that the Code has been infringed. They include the power (in s. 40) to direct a party found to have contravened the Code to comply with it, the power to order restitution for loss, or to make a monetary award for mental anguish. It may order a frivolous complainant to pay costs. A board is required to "make its findings and decision" within thirty days of the hearing: s. 40, ss. 7.
I have stated the Commission's position. It is that the Court has no jurisdiction to entertain an appeal from other than a final decision or order of the board. The position of the respondents is to the contrary, though their arguments differ somewhat. The union submits that s. 41 provides an appeal from any decision of a board of inquiry. No more than a moment's reflection is needed to reveal the startling consequences that would follow if this construction were adopted. Any decision, however trifling, could be appealed at any stage of the hearing by any party. Successive appeals could be launched without limit. Each appeal would bring the inquiry to a stop.
If that were possible in trials in the courts, we would be presented with the spectacle of parties scuttling back and forth between trial courts and this court or the Court of Appeal, with the judge, and jury perhaps, left to twiddle their thumbs while counsel are at Osgoode Hall. It is an unattractive prospect.
32I fully appreciate the claim on the part of the FWTAO and the OTF that the challenged practice is well established, that it has been long known to the Commission, and that it might have been challenged long ago. Still, as far as this Board of Inquiry is concerned, in the exercise of its discretion the Code imposes its own system of expedition. As the Divisional Court stated in passing upon the application for judicial review in this matter, whatever the Court of Appeal rules as to By-Law I, bearing in mind the stance taken by counsel, that is not likely to be the end of the matter.
33In saying this, I acknowledge that at the end of the day, in any final judicial disposition, it is entirely possible that By-Law [I] might be struck down either as a matter of corporate law or under the Charter of Rights and Freedoms. If that happened, as the Divisional Court noted, it would render the proceedings before this Board of Inquiry moot. To subject the parties, including the interveners, to adjudication before a board of inquiry surely imposes additional costs and other hardships. In my view, however, that is a price that must be paid in the carrying out of the public policy of the Code.
34There is a concluding note to this award: I do not mean to imply that any claim of "delay" in bringing the complaints now before me is without a place in these proceedings. It may be that counsel will be able to relate facts incident to the claim of delay to the substance of the complaints or to any relief requested should those complaints be found to have merit.
Award
35For the reasons stated, the motions for adjournments are dismissed. The matter will go forward for hearing on the substance of the complaints.
It is so ordered.