Ontario Board of Inquiry
CHRR Doc. 90-011
Harriette Meissner Complainant
v.
Swiss Chalet (506756 Ontario Ltd.) and Warren Reynolds and Jeff Reynolds Respondents
Before: Ontario Board of Inquiry, Constance B. Backhouse
Comm. Decision No.: 367
Appearances by: Anthony D. Giffin, Counsel for the Ontario Human Rights Commission Grant James Kenney, Counsel for the Respondents
ADJOURNMENT — PROCEDURE — request for adjournment to seek judicial review of decision to appoint board of inquiry — COMPLAINTS — unreasonable delay as grounds for dismissal of complaint
Summary: This is a decision on preliminary matters raised by the respondents, Swiss Chalet and Jeff and Warren Reynolds.
Initially, the respondents requested an adjournment to seek judicial review of the appointment of the Board of Inquiry to hear and decide Harriet Meissner's complaint of sexual harassment. The Board refused this request, finding that it should proceed expeditiously to carry out its mandate until such time as it is prohibited from proceeding by an order of a court.
The respondents then argued that the Board of Inquiry should dismiss the complaint because of the delay between the time of its original filing (May 1985) and the date of appointment of the Board of Inquiry (May 1989). The Board of Inquiry rejects this argument. It rules that it should not dismiss a complaint without hearing its merits unless the delay has made the Board of Inquiry's task impossible. In this case, the Board finds that its task is not impossible. The principal witnesses are available and the Ontario Human Rights Commission is prepared to provide to the respondents the names and last known addresses of the persons interviewed in the course of its investigation, as well as those of the witnesses it intends to call.
The Board decides to proceed.
Cases Cited
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: 5
Hyman v. Southam Murray Printing (No. 1) (1982), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.): 13
Kodellas v. Saskatchewan (Human Rights Comm.) (1986), 1986 CanLII 3336 (SK QB), 34 D.L.R. (4th) 30, 8 C.H.R.R. D/3712 (Q.B.): 3
Tomen v. O.T.F. (No. 1) (1989), 1989 CanLII 9063 (ON HRT), 11 C.H.R.R. D/97 (Ont. Bd.Inq.): 4
Younge v. Abraham (1972), (Ont. Bd.Inq.), [unreported]: 22
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 s.7: 3
Human Rights Code, 1981, S.O. 1981, c. 53, s. 38: 2, 6
Statutory Powers Procedure Act, R.S.O. 1980, c. 484, s. 23(1): 12
Interim Decision
1On May 11, 1989, the Ontario Minister of Citizenship appointed me to chair a board of inquiry pursuant to the Human Rights Code, 1981, S.O. 1981, c. 53, as amended. The Board was instructed to hear the matter of the complaint made by Harriette Meissner against Swiss Chalet (506756 Ontario Ltd.) and Warren Reynolds and Jeff Reynolds. The complaint was originally made on October 3, 1985, and subsequently amended on June 4, 1986 and April 3, 1989. The complaint alleged discrimination in employment on the basis of sex, sexual solicitation and reprisal for the rejection of a sexual solicitation.
2The parties were not prepared to proceed to a hearing within the thirty-day limit imposed upon the Board in s. 38 of the Code, and we proceeded by way of a conference call on May 26, 1989. At that time, Mr. Kenney, counsel for the respondents, stated that he would be seeking a dismissal of the complaint. A hearing was scheduled for June 21, 1989 to permit argument on this preliminary matter. At Mr. Kenney's request and with the agreement of all parties, the venue for this preliminary argument was changed from London, where it had been originally set, to Toronto.
Request for Adjournment
3At the outset of the hearing on June 21, 1989, Mr. Kenney requested an adjournment to permit him to seek judicial review of the Ministerial decision to appoint a board of inquiry. Kenney argued that the Board should adjourn its proceedings until the completion of judicial review concerning the legality of the appointment. He relied upon the case of Re Kodellas and Saskatchewan Human Rights Commission (1986), 1986 CanLII 3336 (SK QB), 34 D.L.R. (4th) 30, 8 C.H.R.R. D/3712, in which the Saskatchewan Court of Queen's Bench quashed the appointment of a board of inquiry because the extensive delay had infringed s. 7 of the Charter.
4Mr. Griffin, counsel for the Ontario Human Rights Commission, took the position that the Board should proceed with its process in tandem with the judicial review until it received an order quashing its proceedings. He relied upon the interim ruling of D. J. Baum, Chair of the Ontario Board of Inquiry in Ontario Teachers Federation and Ontario Public School Teachers Federation v. Margaret Tomen and Linda Logan-Smith (January 6, 1989, unreported) [since reported in this issue sub nom. Tomen v. O.T.F. (No. 1), 1989 CanLII 9063 (ON HRT), 11 C.H.R.R. D/97], in which the Board refused to adjourn its proceedings pending the resolution of judicial review.
5The Ontario Court of Appeal decision in 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 states that statutory tribunals have the discretion to determine whether proceedings should be adjourned pending a judicial challenge to jurisdiction. I agree with D. J. Baum's analysis in Tomen, that this discretion should 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." (at p. 11)
6It is clear from the preamble and scope of the Code that the public interest is central to the legislation. The public interest includes and transcends the interests of complainants and respondents. At the core of the public interest is the vindication of those rights identified by the Code as human rights. The Code imposes a responsibility upon boards of inquiry to hear complaints about the violation of those rights and to be expeditious in adjudication. Hearings must be commenced within thirty days of the board's appointment (s. 38). The board must release its decision within thirty days of the conclusion of the hearing (s. 40).
7Although counsel for the respondents has undertaken to proceed to judicial review within thirty days, an application to the courts has not yet been commenced, and it is unclear how long it will take the courts to resolve the issues with finality. Since the Code mandates the expeditious processing of complaints concerning violations of the rights therein, I have decided to exercise my discretion to refuse the adjournment. In my opinion, the Board can best carry out its mandate under the Code by proceeding with the hearing until an order of the court has actually been made prohibiting it from further activity or quashing some order already made by which it assumed jurisdiction.
Request for Dismissal
8Upon the denial of the request for adjournment, Mr. Kenney then argued that the Board should dismiss Harriette Meissner's complaint on the basis of prejudice to the respondents arising from delay. He based his argument on the following points:
The passage of time between the incidents complained of, from August or September 1984 to May 1985 and the date of the appointment of the Board, May 11, 1989, is excessive on its face.
Three complaints — one original and two amended — have been issued in this matter: October 3, 1985; June 3, 1986; and April 3, 1989. The complaints differ significantly with respect to the incidents contained therein and the individuals named. In the first complaint, Jim Pereira, the chef of the restaurant, is cited as the sexual harasser. Jeff and Warren Reynolds are cited for their refusal to discipline Pereira or stop the harassment. In the second amended complaint, Jim Pereira and Jeff Reynolds are both cited as sexual harassers. In the third, Jim Pereira is no longer named, and only Jeff Reynolds is cited as a sexual harasser.
Some of the delay appeared to be attributable to the Commission's decision in June 1987 not to appoint a board of inquiry on this matter. Mr. Kenney noted that the communication to the respondents from the Commission (which he stated had never been received by his clients) indicated that there was no corroborative evidence for Meissner's case, and that female staff supported Jeff Reynolds' position. No further details regarding the names or statements of these employees was provided. Harriette Meissner then requested the Commission to reconsider the decision not to appoint a board, and the Commission reversed its position, but failed to provide sufficient reasons to the respondents for this reversal.
During the delay between the incidents complained of and the appointment of the Board, the respondents have sold the restaurant to Cara Operations Ltd. and moved from Cambridge. The numbered company carries on no further active business, and has no substantial assets.
The restaurant business is known for the transience of its employees, and the high turnover within its personnel. This enhances the difficulty of locating witnesses. Mr. Kenney argued that his clients had lost contact with witnesses who might have been able to corroborate the respondents' case. Indeed he was able to name at least one witness who would have been helpful to the respondents, Denise Third, who had moved from Ontario to British Columbia three years ago. Furthermore, he pointed out that any witnesses they were able to locate would have serious recollection problems.
Finally, Mr. Kenney argued that since the incidents complained of, the life circumstances of the parties had altered dramatically, such that it would now be impossible to present the Board with an accurate impression of what had occurred. He argued that at the time, Jeff Reynolds had been a twenty-two-year-old boy, acting as a manager for his father, living in a trailer behind the restaurant. Harriette Meissner had been a thirty-year-old woman and part-time model, working as a hostess and aspiring towards the position of assistant manager. Today Jeff Reynolds is significantly more mature, a twenty-six-year-old real estate agent, and would present himself substantially differently four years after the fact. This would make it much more difficult to convince the Board of his immaturity compared to the complainant at the relevant time.
9Mr. Griffin opposed the request for dismissal. He argued that there was nothing improper in the issuance of three different complaints, since the Commission's role was to review complaints and determine which should be adjudicated. In this matter, the Commission had chosen to narrow the issues and pursue only the allegations against Jeff and Warren Reynolds, and Swiss Chalet.
10Mr. Griffin noted that now that the grounds had been narrowed, the central issues would revolve around what took place between Harriette Meissner, Jeff Reynolds and Warren Reynolds. The critical determinations would revolve around the behaviour of these three individuals, all of whom were available to testify. Furthermore, he argued that despite the passage of time, the memories of these individuals were still fresh because the circumstances had been much on their minds. With respect to the difficulty of locating further witnesses, he undertook to disclose to the respondents all of the witnesses to be called by the Commission, and the names and last known addresses of all persons interviewed during the Commission's investigation.
11Finally, he argued that the concerns Mr. Kenney had expressed regarding any impropriety or negligence in the administrative procedures of the Commission were not the province of the Board of Inquiry. These matters should be addressed in the forum of the courts. The issue for the Board, argued Griffin, was whether this hearing should proceed. In that case, the Board should decide not to proceed 1) if it would be impossible for evidence to be adduced as to what had really happened, or 2) if delay had been such and the prejudice to the respondents so overwhelming, that to continue would be an abuse of process.
12Neither the Code nor the Statutory Powers Procedure Act, R.S.O. 1980, c. 484 expressly provided that a Board may dismiss a complaint because of delay. However, the Statutory Powers Procedure Act provides in s. 23(1) that "a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes." As such, the Board could dismiss a complaint for reason of delay if the delay approached the standard of an abuse of the processes of the tribunal.
13In my opinion, the proper test for exercising this discretion is set out in Hyman v. Southam Murray Printing (No. 1)(1982), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd. Inq., McCamus) at D/621:
Under Section 14a of the Code the Minister is given a discretion to appoint a Board of Inquiry to hear and decide a particular complaint. One of the facts that will be evident to the Minister on the face of the complaint is the amount of time which has passed between the alleged incidents and the initiation of the formal complaint. 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. . . .
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 as 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. In the absence of such, admittedly unlikely, circumstances, the proper course, in my opinion, is for the board of inquiry to proceed and to weigh the substantial prejudice or unfairness to a particular party which may have been occasioned by delay in making particular findings of fact or in refusing or fashioning a remedy. It may be that a particular respondent may view the appointment of a board of inquiry by the minister or, indeed, the recommendation of the Commission that a board of inquiry be appointed, to constitute an abuse of a discretionary power conferred by statute. That, however, is a matter to be tested in another forum. [Emphasis added.]
14Although the Code has been amended since the Hyman decision, and the Minister no longer has statutory discretion to appoint the board of inquiry, the Commission is now charged with the exercise of discretion in determining when to recommend the appointment of a board. Any abuse of the Commission's discretionary power should be "tested in another forum."
15In my opinion, the Board must proceed with the hearing, unless the passage of time has made the fulfillment of its task impossible. That threshold has not been met in this situation. Although the respondents appear to be facing a more difficult task in the presentation of their case, it is not an impossible one. Given the nature of the allegations in the complaint, and the availability of the parties to testify, coupled with the Commission's willingness to disclose its information on possible witnesses, I am satisfied that the case can proceed.
16It should be noted, of course, that the decision to proceed with this hearing does not foreclose further consideration of delay. It may prove to have a bearing upon the ultimate adjudication of the substantive issues before this Board, or upon the proper fashioning of a remedy.
Request for Disclosure
17Mr. Kenney requested that Mr. Griffin release to the respondents the names of all the witnesses interviewed by the Commission during its investigation and their last known addresses. Since Mr. Griffin agreed to provide this, as well as a list of all the witnesses to be called by the Commission, a brief summary of their testimony, and documentary disclosure, there was no need for the Board to make any further ruling on disclosure.
Venue
18The facts giving rise to this complaint took place in Cambridge, Ontario. When I was appointed to chair these proceedings, the board of inquiry administration office of the Ministry of Citizenship advised me to hold the hearing in London, Ontario. I presume that London was chosen as the urban centre closest to Cambridge in which appropriate tribunal facilities were available. With the agreement of all parties, we moved the venue to Toronto for the hearing of the preliminary matters.
19Mr. Kenney has further requested that the Board hold the remainder of the hearing in Toronto. He argued that the numbered company stipulated in the complaint is now inactive, and neither Jeff Reynolds nor Warren Reynolds live in Cambridge, Ontario. Jeff Reynolds has moved to Toronto. Warren Reynolds is a resident of British Columbia, but returns to Toronto every six weeks. In addition, Warren Reynolds would have a place to stay in Toronto, with his son, when he was in for the hearing. Joyce Reynolds, whom Mr. Kenney intends to call as a witness, also resides in Toronto. Mr. Kenney noted as well that as counsel, he resided in Toronto.
20Mr. Griffin, although based himself in Toronto, opposed the request for a change of venue. He argued that the complainant, who still lives in Cambridge, would find it more convenient to travel to London for the hearing. In addition, he noted that the hearing should proceed in proximity to the locale where the incidents took place. The goal of public education could best be met, he argued, by permitting maximum communication of the process to the community involved.
21Harriette Meissner, who was unrepresented by counsel, spoke on her own behalf and opposed the request for change of venue. She stated that travelling to Toronto to attend the hearing caused considerable inconvenience to her, and that she would prefer to have the proceedings continue in London.
22Nothing in the Code nor the Statutory Powers Procedure Act provide guidance as to when an application for change of venue should be granted. In Younge v. Abraham (1972), (Ont. Bd. Inq., Tarnopolsky), [unreported], it was held that a change of venue will only be granted where there is an overwhelming preponderance of convenience. In the face of the arguments raised by the Commission and the complainant, I have concluded that the circumstances in this matter do not warrant a change of venue.