Sinclair v. Peel Non-Profit Housing Corp. (No. 1)
1989-04-06
Ontario Board of Inquiry
Heather Sinclair Complainant
v.
Peel Non-Profit Housing Corporation Respondent
Before: Ontario Board of Inquiry, M. Friedland
BOARDS OF INQUIRY / TRIBUNALS — board's role is to hear complaint, not to investigate Commission's behaviour — COMPLAINTS — amendment to include allegation of sex discrimination — JURISDICTION — authority of board to hear complaint in light of alleged procedural irregularities by Commission — NATURAL JUSTICE — procedural fairness of Commission
Summary: The Board of Inquiry rules on two preliminary matters 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 first is a motion by the respondent to the effect that the Board of Inquiry has no jurisdiction to hear the complaint because of alleged breaches of natural justice and procedural fairness on the part of the Ontario Human Rights Commission while it was investigating this complaint. The Board rules that if the Commission's conduct of an investigation is improper, that question should be raised before a court. The duty of the Board of Inquiry is to hear and determine the complaint referred to it, not to investigate the behaviour of the Commission.
The second is a motion by the complainant to add the ground of sex to the allegation. The Board allows this ground to be added.
Cases Cited
E.C.W.U. Local 916 v. Atomic Energy of Canada Ltd. (1984), 1984 CanLII 5014 (CHRT), 5 C.H.R.R. D/2066: 9
Hyman v. Southam Murray Printing (1982), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617: 4
Legislation Cited
Canada
Canadian Human Rights Act, S.C. 1976–77, c. 33: 9
Ontario
Human Rights Code, 1981, S.O. 1981, c. 53, s. 32: 2
1I have considered the submissions made by counsel for the respondent and for the Commission with respect to the preliminary objection raised by the respondent. Counsel for the respondent argued that I do not have jurisdiction to hear and decide the case because of alleged breaches by the Human Rights Commission of the rules of natural justice and breaches of a duty to observe procedural fairness. Counsel for the Commission argued that even if the allegations were true, which she denied, these are not matters that were for me to decide, but should be raised before a court.
2I agree with the Commission's submissions. Whatever irregularities might occur in a case as the Commission investigates a complaint and endeavours to effect a settlement under Ontario Human Rights Code, 1981, S.O. 1981, c. 53, s. 32 or requests the Minister to appoint a board of inquiry and refer the subject matter of the complaint to the board under s. 35 do not, except perhaps in very extreme cases, affect my jurisdiction to hear the complaint. The Act does not provide for an investigation by a board of inquiry into what took place before the Commission. Once a board of inquiry has been established under s. 37 the Board's duties are set out under s. 38. This provides that:
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 infringed the right; and
(c) to decide upon an appropriate order under section 40 . . .
3It may be that the Commission's conduct of an investigation and request to the Minister is such a "travesty" that it can be said that in effect there was no decision by the Commission at all. No doubt, such a travesty could affect the Board's jurisdiction. But that is not this case. I inquired in a general way into the circumstances surrounding the Commission's decision to recommend a board of inquiry. Even if they are objectionable in this case — a finding that I am not making — they would not amount to a sufficient "travesty" to entitle the Board not to proceed with the hearing.
4Professor John McCamus dealt with a similar preliminary objection in the 1982 case of Hyman v. Southam Murray Printing(1982), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 in much the same manner as I have. There, a preliminary objection was made by the respondent because of undue delay in the initiation of the complaint. Professor McCamus stated (D/621):
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 . . . It may be that a particular respondent may view the appointment of a board of inquiry by the minister or, indeed, the recommendation . . . that a board of inquiry be appointed, to constitute an abuse of discretionary power conferred by Statute. That, however, is a matter to be tested in another forum.
I agree.
5One important practical reason why a Board should not inquire into the background of the case is that it would almost inevitably bring to the attention of the Board the steps taken by the parties to endeavour to effect a settlement, as well as other privileged material. It is not normally desirable for a Board to have this information. A separation between the Commission and the Board is envisaged by the Act and, in my opinion, is a desirable objective.
Amendment of Complaint
6Counsel for Ms. Heather Sinclair, the complainant, has brought a motion to amend the complaint to add the ground of sex discrimination to the complaint. This is resisted by counsel for the respondent. The Commission takes no position on the matter and indicates that if the motion is granted, counsel for the complainant would have carriage of that aspect of the complaint.
7The original complaint is dated July 9, 1987 and refers to events that took place on March 3, 1987. In that complaint, the ground of contravention was noted as "receipt of public assistance." About a year after the original complaint Ms. Sinclair retained Blake, Cassels and Graydon to represent her, and on or about August 25, 1988 her counsel requested that the complaint be expanded to include "sex" as a contravention ground. The Commission, however, declined to expand the complaint to include this ground.
8There is no doubt that a Board of Inquiry has jurisdiction to amend a complaint. Counsel for the respondent conceded that I have the power to do so, but said that I should exercise my discretion not to do so.
9Each case must be decided on its own facts. E.C.W.U. Local 916 v. Atomic Energy of Canada Ltd. (1984), 1984 CanLII 5014 (CHRT), 5 C.H.R.R. D/2066, a decision of a tribunal under the Canadian Human Rights Act S.C. 1976–77, c. 33 as amended, for example, denied a motion to add a new ground. But in that case there was substantial delay before the point was raised. The complaint was dated April 27, 1979 and the first indication that an additional ground was to be argued was over four years later, shortly before the hearing was to be held.
10It would be a mistake for boards of inquiry to be bogged down in procedural rules. It is unfair to the complainant and inconsistent with the spirit of the Code. If an amendment is not made, then a further inquiry to decide this issue would be required. Multiplicity of proceedings is not desirable. Respondents, however, have to be treated fairly. They have a lot at stake in the process.
11In the circumstances of this case I am going to allow the addition of the ground of "sex." The respondents have known about it for well over six months. The additional ground arises out of the original factual picture, so the respondents are not unfairly prejudiced with respect to the evidence of Ms. Sinclair. Some additional time for preparation will, of course, be given to the respondent because of the additional burden of meeting this additional ground.