Lutz v. Gray's Lakehouse Restaurant
1990-09-24
Daphne Lutz and Joanne Cosgrove Complainants
Gray's Lakehouse Restaurant and Neil Benvenuti, and Joan Hamel Respondents
Date of Decision: September 24, 1990
Before: Ontario Board of Inquiry, William J. Plaut
Appearances by: Kaye Joachim, Counsel for the Complainants James D. Henderson, Counsel for the Respondents
PROCEDURE — COMPLAINTS — delay as abuse of process and as grounds for dismissal of complaint — full defence possible despite delay
Summary: The Board of Inquiry denies a preliminary motion by the respondents requesting the Board to dismiss the complaint on the grounds that the delay involved in bringing it before the Board for hearing has made a full defence impossible.
While five years has elapsed since the time of the alleged violation, the Board finds that the respondent has not shown that a full defence is impossible. The most important witnesses are available. Should it become evident during the hearing that the respondents' defence is compromised by the delay this can be taken into account.
The Board rejects the motion to dismiss and decides to proceed to hear the complaint.
Cases Cited
Gohm v. Domtar Inc. (No. 1) (1988), 1988 CanLII 8877 (ON HRT), 10 C.H.R.R. D/5968: 5, 7
Hyman v. Southam Murray Printing (No. 1) (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617: 8
Kodellas v. Saskatchewan (Human Rights Comm.) (1989), 1989 CanLII 284 (SK CA), 10 C.H.R.R. D/6305 (Sask. C.A.): 5, 13
McMinn v. Sault Ste. Marie (City) Professional Firefighters Assn. (1986), 1986 CanLII 6521 (ON HRT), 7 C.H.R.R. D/3458: 7
Morin v. Noranda Inc. (1988), 1988 CanLII 8878 (ON HRT), 9 C.H.R.R. D/5245: 5
Legislation Cited
Canada
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: 5
Ontario
Human Rights Code, 1981, S.O. 1981, c. 53: 5
Statutory Powers Procedure Act, R.S.O. 1980, c. 484, s. 23(1): 4
Interim Decision
1The following are facts agreed upon:
Daphne Lutz is a black West Indian who, around August 1984, was employed as a day-time kitchen helper by Gray's Lakehouse Restaurant. She alleges that in early 1985 she was being harassed and that on June 5, 1985 she was terminated from her employment. She filed a complaint with the Ontario Human Rights Commission ("Commission") on August 30, 1985 against the restaurant, as well as against manager Benvenuti and office manager Hamel, claiming that her race and colour were determining factors in her termination.
Joanne Cosgrove began working at the restaurant around November 1984 and alleges that she noticed Lutz being harassed by management. She voiced her concern to the office manager and thereafter was harassed by Hamel and Benvenuti and was subsequently suspended from her job. She filed a complaint with the Commission on August 30, 1985, claiming that her association with Lutz was the main factor in her determination [sic].
2The restaurant ("respondent") was and is owned by Vincent Gray Investments Ltd. of which Andrew James Gray was and is president. The operations manager of the restaurant during the time of the alleged discrimination was Peter Vincent, who was also the secretary-treasurer of the owner-corporation. He left his positions in 1989.
3Employee payrolls were introduced (Exhibit No. 6) to show that turnover of employees was very high since the time the complaint was filed. Lisa Heron, appearing as a witness at the hearing, is the only remaining day-time employee. While she remembers the complainants she had no direct knowledge of the circumstances leading to their complaints. She further testified that probably some seven or eight employees worked the day-time shift when the alleged violations took place.
4Counsel for the Commission indicated that the long delay between the filing of the complaint and appointment of the Board of Inquiry, August 13, 1990, was due to a shortage of human resources in the Commission, creating a large backlog in the regional Mississauga office.
Counsel for the respondent submits that this delay occasioned actual prejudice against his client, that a continuation of the case would be an abuse of process, and that therefore the complaint should be dismissed.
S. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484 ("SPPA") states:
A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
5[The] respondent cites the following consideration in support of the motion to dismiss:
a. Unreasonable delay offends against the principles of fundamental justice and denigrates the administration of justice. See Kodellas v. Saskatchewan (Human Rights Comm.)(1989), 1989 CanLII 284 (SK CA), 10 C.H.R.R. D/6305, at para. 44863, per Vancise J.A. of the Saskatchewan Court of Appeal.
b. The capacity of respondents to defend their case has significantly waned with the passage of time, to the extent that a continuation of the hearing would constitute an abuse of process. The time elapsed should be reckoned from the time when the alleged discrimination took place. See Morin v. Noranda Inc.(1988), 1988 CanLII 8878 (ON HRT), 9 C.H.R.R. D/5245 at para. 39526.
There has been a heavy turnover of employees, amounting to some 200 to 300 (testimony of Lisa Heron). With the exception of Heron none of the former employees are now connected with the company. The testimony of Andrew Gray shows that, aside from Peter Vincent, he does not know where these former employees might be located. This further diminishes the ability of the respondent to mount a proper defence. Since a human rights complaint implies an impropriety of conduct, the respondent party is entitled to be furnished, prior to the hearing, "with reasonable information of any allegation pertaining thereto" (SPPA, s. 8).
c. Potential prejudice is sufficient, as Vancise J.A. has stated in Kodellas, supra [para. 44868]:
It is not necessary that there be actual prejudice to the wrongdoer as a result of the delay. Delay which causes or can cause prejudice by impairing the ability to mount a full answer and defence is a relevant consideration.
d. Counsel submits that the spirit of s. 7 of the Canadian Charter of Rights and Freedoms has been offended.
e. Andrew Gray, currently operations manager of the restaurant, had no involvement with the actual conduct of the business at the time of the alleged acts, and is thereby impaired in his capacity to mount a defence and make a full answer before the Board.
f. The time limitations set forth in the Ontario Human Rights Code, 1981 [S.O. 1981, c. 53 (the "Code"), though they do not address the instant case, have been inserted to protect a respondent, which is the very spirit of s. 7 of the Charter.
6All seven points are brought forward to highlight the respondent's central claim: that the passage of time — five years — has made a proper defence difficult if not impossible and, though it was not expressly stated, onerous and costly. The Board is asked to consider this an abuse of process.
7a. A survey of relevant jurisprudence shows that courts and tribunals have been very hesitant to dismiss proceedings on the basis of delay. There are two obvious reasons for this. One, that the legal justice system is generally overburdened and therefore slow in arriving at judgments and that therefore the charge of long delay would have to be levelled against the majority of contended cases; and two, that dismissal is a harsh and final way of dealing with a legal matter and does not allow for the issues even to be considered. This is especially so when an innocent party, as for instance complainants in a human rights case, have no other avenue of redress but to apply to the Commission, and are thereafter totally in its hands. See Gohm v. Domtar Inc. (No. 1)(1988), 1988 CanLII 8877 (ON HRT), 10 C.H.R.R. D/5968, at para. 43199; McMinn v. Sault Ste. Marie (City) Professional Firefighters Association (1986), 1986 CanLII 6521 (ON HRT), 7 C.H.R.R. D/3458.
8However, I must consider whether the claim of the respondent that a proper defence has become impossible is justified. This was succinctly stated by Chairman McCamus in Hyman v. Southam Murray Printing (No. 1)(1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 at para. 5619:
Having been assigned, by order of the Minister of Labour [now of Citizenship] 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 the fulfilment of its task impossible.
b. Has the respondent's task in fact become impossible? So far I have not been furnished proof that this is the case.
9It appears that the other person who worked in the "prep room" with the complainants on a sustained basis and would therefore be a possible witness to either the alleged violations or their absence, is in fact available. He is Bruce MacNaughton, for whom a summons has been issued. To be sure, other employees who did not work in the "prep room" and who made only occasional visits to it might be witnesses for one side or the other, but the respondent has stated only in the most general terms that their absence hinders its defence. I cannot, on that basis, rule that the respondent's response is so impaired as to offend against all laws of fairness and natural justice. If it becomes evident during the hearings that indeed such testimony would be important to the defence but is impossible to obtain because of inordinate delay, the possibility of dismissal would still exist.
10Furthermore, there is Lisa Heron who still works for the restaurant, and there is the former operations manager, Peter Vincent, whose whereabouts are apparently known. I understand that he and Andrew Gray have parted on less than friendly terms, and the latter might be hesitant to call Vincent as a witness. However, I must assume at the outset that any witness, testifying under oath, will tell the truth, and not until that person's testimony has been heard can its value be properly assessed.
11Then, there are the two other respondents, Neil Benvenuti and Joan Hamel, who will have their say. The respondent submits that their absence at the second hearing provides "an excellent example of the degree of cooperation that Gray's Lakehouse Restaurant can expect in preparing its defense" (p. 9 of the submission). This is a very weak and possibly even inaccurate assumption. One might argue the very opposite, namely, that these parties (whose presence can be secured through summons) will most likely deny that the complaints are justified and would thereby exonerate the respondent Gray's Lakehouse. Clearly, all of this must be left to the hearings.
12A further point that militates against dismissal is the absence of any proof that the respondent has tried to locate former employees who might be called upon to sustain a defence, nor did he indicate that any specific witnesses would be unavailable (Transcript, p. 279).
13c. The respondent claims that potential difficulty in mounting a defence is sufficient, and that one does not have to show actual prejudice. In support he cites Kodellas, supra, at para. 44868:
Delay which causes or can cause prejudice by impairing the ability to mount a full answer and defence is a relevant consideration. Actual prejudice is a major factor to be considered in this context. Here, by reason of the delay, Mr. Kodellas is forced to attempt to locate witnesses to testify to circumstances which took place some four years ago. The nature of the restaurant business is such that the service personnel do not remain long in the employ of one employer. The mobility and the fact that service personnel frequently change their occupations compound the difficulty that one would normally encounter in locating a witness after a delay of this duration. Had these matters been proceeded with in a timely fashion, none of that additional effort or expense would have been required, nor [would] the potential prejudice caused [by impairment or potential impairment of the opportunity to mount a full answer and defence caused] by lack of memory or faded memory exist. In my opinion, Mr. Kodellas has demonstrated more than a potential prejudice. He has demonstrated actual prejudice to his ability to mount a fair answer and defence caused by the unexplained and unreasonable delay in proceeding with these complaints.
14d. In arriving at this conclusion the Court relied on s. 7 of the Charter, but that reliance is not applicable to a corporate entity, for the rights and freedoms are integral parts of the human being and not for a corporation.
15Furthermore, the then manager of the restaurant, Mr. Vincent, had every opportunity to make sure that, after the complaints were filed, potential witnesses be kept in sight and made available to the investigating officer if at all possible. As indicated, the key persons who might be called to testify are in fact available now; in addition to Mr. Vincent, two of them are themselves respondent, and Mr. MacNaughton will be summoned by subpoena.
16It therefore appears that the judgment in Kodellas is not applicable in the instant case. However, should the hearing reveal that indeed there has been prejudice to the respondent which would make a proper answer impossible, there will be occasion to raise the issue of delay again.
17e. The respondent also claims that the present manager/owner, Andrew Gray, "had no involvement in the restaurant business at the time of the alleged acts. This will thereby impair his capacity to mount a defence" (p. 9 of submission). However, the complaint is not against him personally, but against the corporation, and the corporation had ample notice of the complaint. Peter Vincent was at the time of the alleged offence and for some time thereafter authorized to represent the restaurant in the matter of the human rights complaints, to make submissions and gather evidence (Transcript, pp. 283–4). He represented the corporation and the latter must bear the consequences.
18f. It is submitted that the insertion of time limitations into the Code shows the law to be concerned with expeditiousness, and a five year delay contravenes this intent. To be sure, human rights cases should be handled in a much shorter time, but the law is singularly silent on how long an investigation might take and specifies no time when it should be concluded. In view of the fact that other limitations are written into the law but not on this issue, this claim of the respondent must fail too.
Order
19With no precedent case law or persuasive arguments to the contrary, the motion to dismiss because of delay is denied and the hearings will proceed as arranged.