Sinclair v. Peel Non-Profit Housing Corp. (No. 2)
1989-08-04
Ontario Board of Inquiry
Heather Sinclair Complainant
v.
Peel Non-Profit Housing Corporation Respondent
Before: Ontario Board of Inquiry, M. Friedland
PARTIES — "added parties" distinguished from "amici curiae"
Summary: The Board of Inquiry rules on applications made by a number of organizations to be interveners in the case of Heather Sinclair, who has alleged that she was discriminated against by Peel Non-Profit Housing Corporation because she is in receipt of public assistance. The Board of Inquiry distinguishes between interveners who are "added parties" with all the rights of a party to adduce evidence and cross-examine, and interveners who are "amici curiae", that is, friends of the court with the more limited rights to make written submissions and oral argument.
The Board of Inquiry grants the applicants standing as interveners with the right to make written submissions. Depending on how the case unfolds, the Board of Inquiry may allow evidence to be introduced and oral arguments to be made by the interveners.
Cases Cited
American Airlines Inc. v. Competition Tribunal (1988), 1988 CanLII 9456 (FCA), 33 Admin. L.R. 229: 10
Simms v. Ford Motor Co. (June 4, 1970), (Ont. Bd. Inq.) [unreported]: 10
Legislation Cited
Ontario
Human Rights Code, 1981, S.O. 1981, c. 53: 7
Rules of Civil Procedure: 6
Authorities Cited
David Scriven & Paul Muldoon, "Intervention as Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure" (1985–86) 6 Advocates' Q. 448: 6
Paul Muldoon & David Scriven, "Intervention as Added Party: Rule 13 of the Ontario Rules of Civil Procedure" (1985), 6 Advocates' Q. 129: 6
1A number of groups have applied to be involved as interveners in these proceedings.
2Supporting the position of the Commission and the complainant is an ad hoc coalition of organizations and associations consisting of the Centre for Equality Rights in Accommodation (CERA), the National Anti-Poverty Organization (NAPO), the Federation of Metro Tenants' Association (FMTA), the Co-operative Housing Federation of Toronto (CHFT), the Co-operative Housing Association of Ontario (CHAO), and the Affordable Housing Action Group (AHAG). In addition, Jessie's Centre for Teenagers Inc., which serves the needs of pregnant and parenting teenagers, has requested intervener status.
3A member of Non-Profit Housing Corporation with an interest similar to the respondent's, Peel Non-Profit Housing Corporation, have [sic] sought intervener status in support of the respondent. Further, an organization, the Fair Rental Policy Organization (FRPO), which has over 1,000 members who own or manager over 200,000 rental units in Ontario, also applied for standing in support of the respondent.
4In addition, the Ministry of Housing has applied for intervener status because of its involvement with programs (to quote the Ministry's brief) "aimed at assisting municipalities and organizations in the provision of non-profit rental accommodation for low or modest income people." The Ministry is not specifically supporting one side or the other. "The Ministry's right to intervene, if granted," its brief states:
would be limited to outlining and clarifying Ministry policy and programs, if necessary, where such matters are touched by the parties or where such matters could be affected by issues raised by the parties.
Important public policy issues appear to be at stake in this hearing. All of the applicants have a serious interest in the outcome of the proceedings. What role should the applicants be permitted to play?
Some, such as Jessie's and the various Non-Profit Housing Corporations have asked for the right to present written or oral submissions at the conclusion of the hearing. The other applicants seek fuller participation. FRPO "seeks leave to participate as a party intervenor . . . including the right to adduce evidence and to cross-examine witnesses." The CERA coalition and the Ministry of Housing also wish to question witnesses, adduce evidence, and make written and oral submissions.
5All the present parties to the hearing resist wide-ranging participation by the applicants. The respondent would limit their participation to written or oral submissions at the end of the hearing. The Commission and the complainant go somewhat further and would leave open the possibility of the interveners seeking leave to adduce evidence in support of their positions.
6There are in general two categories of intervention. One is intervention as a party and the other as an amicus curiae or friend of the court. The two types of interveners are analysed in two very helpful articles on the topic: Paul Muldoon & David Scriven, "Intervention as Added Party: Rule 13 of the Ontario Rules of Civil Procedure" (1985), 6 Advocates' Q. 129 and David Scriven & Paul Muldoon, "Intervention as Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure" (1985–86) 6 Advocates' Q. 448. The authors are, of course, dealing with the Ontario Rules of Civil Procedure, but what they say is equally applicable to tribunals, such as this Board of Inquiry. They state (at p. 132):
The primary distinguishing feature between intervention as added party and as amicus, however, is the nature and extent of rights afforded to the successful applicant. The intervenor as added party is usually afforded all the rights and liabilities as possessed by the original parties to the proceeding. For example, those rights could include, inter alia, the right to file pleadings, present evidence, examine and cross-examine at trial, and argue and appeal an adverse ruling. An intervenor as friend of the court, on the other hand, is granted a much different status. Technically speaking, an amicus is not a "party" before the court, but a "friend" for the purpose of rendering assistance to the court. As such, it is the court which determines the entire extent of the rights afforded to the amicus which at minimum would include the right to present written or oral argument. While the two types of intervention are similar in that both provide a procedure for a "stranger" to become involved in the action, they serve different functions.
7This is not an appropriate case for adding any of the applicants as parties to the proceedings. Section 38(1) of the Human Rights Code, 1981 specifies the purpose of a Board of Inquiry:
38.(1) The board of inquiry shall hold a hearing,
(a) to determine whether a right of the complainant under this Act has been infringed;
(b) to determine who has infringed the right; and
(c) to decide upon an appropriate order under section 40 . . .
8The Human Rights Code, 1981 sets out in s. 38(2) who may be parties before a board of inquiry:
(2) The parties to a proceeding before a board of inquiry are,
(a) the Commission, which shall have the carriage of the complaint;
(b) the complainant;
(c) any person who the Commission alleges has infringed the right;
(d) any person appearing to the board of inquiry to have infringed the right;
(e) where the complaint is of alleged conduct constituting harassment under subsection 2(2) or subsection 4(2) or of alleged conduct under section 6, any person who, in the opinion of the board, knew or was in possession of facts from which he or she ought reasonably to have known of the conduct and who had authority to penalize or prevent the conduct.
Parties can be added under subsection 3:
(3) A party may be added by the board of inquiry under clause (2)(d) or clause (2)(e) at any stage of the proceeding upon such terms as the board considers proper.
9The applicants should not be made parties in the sense contemplated by s. 38. FRPO, for example, has not "infringed the right" of the complainant under the Act. Its members would not, I am certain, want or expect to have an order under s. 40 of the Act made against them. They would not want my findings to be res judicata in any future proceedings brought by the Commission. No provision is made under s. 38 for groups such as CERA or for the Ministry of Housing to be full parties.
10If the applicants are not parties within s. 38, can they be interveners as amicus curiae. I have no doubt that they can and that I have jurisdiction to allow their participation. As Chief Justice Iacobucci stated in the Federal Court of Canada in relation to the Competition Tribunal in American Airlines Inc. v. Competition Tribunal(1988), 1988 CanLII 9456 (FCA), 33 Admin. L.R. 229 at 237:
Courts and tribunals are masters of their own procedures. As a part of this principle, Courts have also been recognized as having an inherent authority or power to permit interventions basically on terms and conditions that they believe are appropriate in the circumstances.
I note that Professor Horace Krever, as he then was, in a human rights hearing, Simms v. Ford Motor Co. (1970), [unreported], refused to allow applicant unions to be added as parties, but stated:
In the result, I ruled that, at the termination of the evidence and after the parties had been given an opportunity to make their submissions, the unions might be permitted to make representations . . . by way of submissions. The Board would then have had the benefit of additional representations at a minimal cost in terms of time and pursuit of issue that were not entirely germane to the allegations contained in the complaint.
11Allowing amicus curiae interveners full rights of participation would clearly lengthen this hearing (which will be a long one without the interveners) and probably would unduly shift the focus of the inquiry to matters that the interveners are interested in pursuing. These issues, while important, may be extraneous to the interests of the parties. Full participation would therefore be unfair to the complainant and the respondent, who, as I have said, object to wide participation, even by organizations supporting their case. Further, it is not clear at this stage what the issues will be in this potentially complex inquiry.
12Inquiries under the Human Rights Code, 1981 by their nature involve serious allegations of discrimination that are very important to the complainant and the respondent, quite apart from the Commission's interest in the proceedings. The immediate parties, subject to the chair's rulings, should have control of the conduct of the case.
13I will not analyse here the many cases cited by counsel in their very helpful submissions. Each depends on its own circumstances. For example, appeal courts will normally be more inclined to allow interveners than trial courts. Royal Commissions and references, by their very nature, seek wide input from many organizations and interest groups. Inquests may be in a similar position. In each case the question is: what type of participation would be helpful to the tribunal in fulfilling its mandate?
14In this case, all the applicants for intervener status have considerable expertise on many of the issues that may be canvassed and have a serious interest in the outcome of the case. The issues, I am told by the applicants, could have an important effect on housing policy in Ontario. I would find it helpful to have their views at the conclusion of the case on the issues with which I will be called on to deal.
15Written submissions can therefore be made by the applicant interveners at the conclusion of the case and prior to the final arguments by the parties. At that time I will determine whether I would find it helpful to have oral argument as well on some parts of the submissions.
16I also leave open the possibility that I will permit the interveners to call evidence at the conclusion of the Commission's and complainant's case and at the conclusion of the respondent's case if I conclude at the time that issues that I may have to deal with have not been adequately explored, and if the calling of this evidence would not prejudice the position of the parties. I am grateful for the offer by the Ministry of Housing to provide information on government housing policy. I leave open the possibility that I will invite such assistance throughout the hearing.