Ontario (Human Rights Comm.) v. North American Life Assurance Co. (No. 1), 1991 CanLII 13125 (ON HRT)

Ontario (Human Rights Comm.) v. North American Life Assurance Co. (No. 1)

1991-12-27

Ontario Board of Inquiry

Gary Thornton Complainant

v.

North American Life Assurance Company Respondent

Date of Complaint: February 15, 1990 Date of Decision: December 27, 1991 Before: Ontario Board of Inquiry, W. Gunther Plaut Comm. Decision No.: 429

PARTIES — adding a respondent — EVIDENCE — immunity of witnesses in future proceedings — BOARDS OF INQUIRY/TRIBUNALS — authority to order immunity — COMPLAINTS — order sought not to initiate future complaints — PROCEDURE — procedural fairness

Summary: This is a decision on three preliminary issues raised by the respondent company, North American Life Assurance Company, prior to the hearing of the merits of a complaint filed against it by Gary Thornton alleging discrimination because long-term disability payments to him were disallowed.

The North American Life Assurance Company (NAL) requests that the Board of Inquiry issue an order binding the Commission not to initiate a complaint against any insurer not named in this complaint. NAL argues that a statement by Chief Commissioner Catherine Frazee to the effect that the complaint has broad implications has put NAL's defence in a precarious position because the kinds of witnesses it could call come from the insurance industry and the industry itself is now at risk. Witnesses might be afraid to testify fully for fear that they will become targets of complaints themselves.

The Board rules that the statement made by the Chief Commissioner is in no way prejudicial to the case. She has merely given her opinion that this case has industry-wide impact because the complaint deals with a clause which is standard in many contracts. In addition, the Board finds that it has no power to issue such an order since its jurisdiction is to hear and decide the complaint before it.

NAL's second motion is a request that witnesses be given use immunity, that is, that evidence given by them cannot be used to incriminate them in other proceedings. The Board finds that it does have the authority to make decisions regarding immunity. However, relying on R. v. Juldip, a Supreme Court of Canada decision on this issue, it also finds that decisions can only be made about immunity at the time of the second proceeding. Consequently, the Board declines to extend immunity to witnesses at this point.

The Board of Inquiry agrees to the third request made by NAL which is to join the employer of Mr. Thornton, the Clarendon Foundation, as a respondent. The Board has the authority to do this and finds that even though it is the insurer who denied the disputed benefits, employers also have a responsibility to provide a discrimination-free work environment.

The motions to bar the Commission from initiating further complaints against insurers and to provide use immunity to witnesses are denied. The employer is joined as a respondent.

Cases Cited

• Brooks v. Canada Safeway Ltd., 1989 CanLII 96 (SCC), [1989] 1 S.C.R. 1219, 10 C.H.R.R. D/6183: 18, 44
• Gohm v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 (Ont. Bd.Inq.): 45
• Hyman v. Southam Murray Printing (No. 1) (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.): 45
• Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 19
• Peel Board of Education v. Ontario (Human Rights Comm.) and Pandori (1990), 1990 CanLII 12504 (ON HRT), 12 C.H.R.R. D/364 (Ont. Bd.Inq.): 19
• R. v. Dubois (1985), 1985 CanLII 10 (SCC), 22 C.C.C. (3d) 513: 27
• R. v. Juldip (1990), 1990 CanLII 64 (SCC), 61 C.C.C. (3d) 385: 28
• York Condominium Corp. No. 216 v. Dudnik (No. 2) (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325 (Ont. Bd.Inq.): 19

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. 13: 27

Ontario

• Human Rights Code, 1981, S.O. 1981, c. 53
  • s. 32(1): 12
  • s. 35: 34
  • s. 38(1): 9
  • s. 38(2)(d): 32
  • s. 38(3): 30
  • s. 40(1): 10
  • s. 40(6): 11
• Rules of civil Procedure, r. 5.02(2): 48
• Statutory Powers Procedure Act, R.S.O. 1980, c. 484: 23
  • s. 1(1): 23
  • s. 14(1): 23, 28

INTERIM DECISION

Background

1On September 9, 1991, the Hon. Elaine Ziemba, Minister of Citizenship, appointed me as a board of inquiry to hear the above matter [Gary Thornton v. North American Life Assurance Company, pursuant to his complaint based on the Ontario Human Rights Code, 1981, S.O. 1981, c. 53]. The complaint was dated February 15, 1990, and amended on October 1991 [sic] (Exhibits 1 and 3). Hearings began via teleconferences on October 3 and 9, and continued in persona on October 17 and December 11.

2It is not contested that Mr. Thornton ("complainant") was employed by Clarendon Foundation and that he signed forms for eligibility in group benefits with the respondent, North American Life Assurance Company ("NAL"). He claims that the latter company discriminated against him by disallowing him long-term disability payments to which he believes he was entitled. Respondent, who had paid complainant short-term disability, disputes the claim, holding that the contract provisions and exclusions are fair and not discriminatory.

3Respondent has raised two preliminary issues by way of motions:

1. This Board of Inquiry is asked to create certain safeguards for the witnesses whom NAL proposes to call.

2. It is further asked to add the Clarendon Foundation, who was complainant's employer and who contracted his insurance with NAL, as a respondent in the instant case.

The First Motion

4This motion had two parts. NAL moved the Board to (Transcript, vol. I, pp. 18–19):

(a) issue an order that the Commission not initiate a complaint against any insurer not named in this complaint as a respondent who may testify in these proceedings; and

(b) that the Commission agree to observe a form of use of immunity, arising from testimony that may be given by other insurers in these hearings.

Both parts of the motion were opposed by the complainant and the Commission.

5(a) NAL's request to order the Commission not to initiate certain complaints is based on a pronouncement made by Ms. Frazee, the latter's Chief Commissioner, to the media. Ms. Frazee was reported to have emphasized the wide implications a rule in this case was likely to have (Exhibit 8: Toronto Globe and Mail, July 24, 1991):

Chief human rights commissioner Catherine Frazee called Mr. Thornton's complaint against North American Life "a big case. It's on the leading edge. We did a very extensive legal analysis and there appears to have been no other case like this within any other Canadian jurisdiction.

6NAL holds that this statement indicates the intent of the Commission to make the instant complaint a test case and that the Commissioner has thereby put NAL's defence in a precarious position. For, so respondent argues, the kinds of experts that would be called as witnesses would come from the insurance industry, and that industry would now itself be at risk. Unless this risk is removed, a fundamental right of respondent would be imperiled, namely, to conduct a proper defence.

7Respondent further argues that such defence would be hampered by witnesses (who might have been compelled by summonses issued by the Board) who would be quasi-hostile and reticent to support respondent fully, for fear they themselves might, by their testimony, be liable to incur the fate of respondent and become future targets of complaints. In any case, advance preparation of and discussions with such witnesses would be difficult, and thereby the kind of defence to which any respondent is entitled would be further curtailed. Therefore, the Board was asked to protect other insurers from similar kinds of charges by issuing the requested order.

8The question which arises out of this part of the motion is whether I have the power to make such an order and if so, whether I should use it.

9The mandate of a board hearing is set out in ss. 38 and 40 of the Code. According to s. 38 it must

38 (1) (a) . . . determine whether a right of the complainant under this Act has been infringed;

(b) . . . who infringed this right; and

(c) . . . decide upon an appropriate order under section 40 . . .

(2) The parties to a proceeding . . . are,

(a) the Commission . . .

10Thus, while the Commission too is considered a party to the proceeding, s. 38 must be read in the light of s. 40:

40 (1) Where the board of inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 8 by a party to the proceeding, the board may, by order,

(a) direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices . . . [Emphasis added.]

11It is clear that the term "party" here refers clearly only to a respondent who has infringed the Code, and in that case it is indeed in the Board's power to make orders in accordance with ss. (a) and (b). However, the power to order the Commission to pay costs exists only when the complaint has been dismissed and the Board finds that s. 40(6), is applicable, which application is not sought by the motion.

12There are no provisions in the Code which permit a board to order the Commission not to carry out the responsibilities assigned to it in s. 32(1), that "it shall investigate a complaint and endeavour to effect a settlement." It is irrelevant that similar complaints have been brought to the Commission. It must investigate each complaint and, when a settlement cannot be effected, decide whether to dismiss the complaint or ask the Minister to appoint a board of inquiry. Each complaint stands on its own, and if no settlement can be effected, the Commission, in considering the merit of a complaint, will either dismiss it or request the Minister to appoint a board of inquiry.

13As a board of inquiry I have no power under the Code which would allow me to interfere with this process, and therefore I cannot contemplate issuing the order against the Commission which NAL has requested in the motion.

14But has the statement of the Chief Commissioner prejudiced the case so seriously that the ruling which is asked for becomes necessary in order to serve the ends of natural justice, even though the Code does not specifically give me this power. Respondent claims that the Commissioner's interview with the Globe and Mail has created such prejudice by targeting the insurance industry as a whole.

15I am not persuaded that the Commissioner has in fact said anything that is prejudicial to the proceedings before me. She has merely stated that in her opinion this case has industry-wide import, because the complaint deals with a clause which is part of many insurance contracts.

16The history of jurisprudence under the Code is replete with issues that impact upon the public. Thus, a particular judgment of a sexual harassment complaint may help to define the nature of harassment and therefore influence all employment practices; the wearing of a kirpan by Sikh Khalsa students or teachers calls forth a decision that speaks not only to the practice of the respondent school board but sets a precedent for other school boards as well — and this effect occurs whether the particular complaint is dismissed or upheld.

17To my knowledge, the kind of motion asked for in the instant case has not been adjudicated previously, for the presumption has always been that any jurisprudence may have an impact beyond the parties at the bar, and thus influence smaller or wider circles and, in that sense, society as a whole. That is the nature of our system of justice, in which precedents play a vital role.

18For instance, Brooks v. Canada Safeway Ltd., 1989 CanLII 96 (SCC), [1989] 1 S.C.R. 1219 [10 C.H.R.R. D/6183] dealt with a particular insurance plan, and clearly the decisions arrived at by the various instances all the way to the Supreme Court of Canada affected the entire insurance industry. However, in no instance were the kinds of undertakings requested which have been asked for in the case before me.

19The same absence prevailed for other cases where systemic issues were raised which had a potential impact beyond the cases at bar. Examples are Dudnik v. York Condominium Corp. No. 216 (No. 2)(1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325 (Ont. Bd.Inq.); OHRC v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 [7 C.H.R.R. D/3102] (known as the "O'Malley" case); Pandori v. Peel Board of Education (1990), 1990 CanLII 12504 (ON HRT), 12 C.H.R.R. D/364 (Ont. Bd.Inq.).

20NAL claims, however, that the case before me has a special dimension in that the public statement by the Chief Commissioner indicates that the Commission is trying this particular complaint as a test case, in order to change the practice of the entire insurance industry. It claims that since the whole industry has been targeted the ordinary procedures must be complemented by the ruling requested (Transcript, vol. I, pp. 69–70).

21Even if this interpretation were correct the Commissioner's statement will play no role in my decision. I have not been appointed to try the insurance industry; my appointment arises out of a complaint by Mr. Thornton which, the Commission believes, suggests that the rights vouchsafed to him by the Code were infringed and which [sic] therefore has asked the Minister to appoint a board of inquiry. If my decision will engender consequences in one direction or another, they will arise from our legal system which pays heed to precedent — but this is potentially true for any board of inquiry.

22(b) What then of the argument advanced by respondent that a proper defence is not possible without the requested order, because of the likely hostility of witnesses who might be called? Respondent argues that such witnesses would be more co-operative and forthcoming if their testimony would not expose them and their companies from [sic] future complaints by the Commission. NAL argues that without such an order of immunity its ability to conduct a proper defence would be seriously curtailed.

23This part of the motion brings into focus provisions in the Statutory Powers Procedure Act [R.S.O. 1980, c. 484] ("SPPA").

A tribunal's statutory power of decision is defined by s. 1(1):

(d) "statutory power of decision" means a power and right, conferred by or under any statute, to make a decision deciding or prescribing,

(i) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party . . .

The immunities referred to in (i) are detailed in s. 14.

14 (1) A witness at a hearing shall be deemed to have objected to answer any question asked him upon the ground that his answer may tend to incriminate him or may tend to establish his liability to civil proceedings at the instance of the Crown, or of any person, and no answer given by a witness at a hearing shall be used or received in evidence against him in any trial or other proceedings against him thereafter taking place, other than a prosecution for perjury in giving such evidence. [Emphasis added.]

24The principle here enunciated is an ancient one: nemo tenetur seipsum accusare (no one is obliged to accuse himself), and SPPA s. 14(1) makes it applicable to a variety of proceedings, such as the case at bar. The immunity vouchsafed applies most certainly to hearings under the Code, as the terminology of the law makes clear when it speaks of "any trial or other proceedings."

25I must therefore consider whether the requested order would be proper and necessary and whether the immunity sought is applicable not only to the personae of the witnesses but also to the companies they might represent.

26SPPA sets forth the scope of the immunity granted and gives a board the power to make decisions regarding it. A tribunal can therefore decide that a witness appearing before it, is or is not protected in regard to testimony given in a previous hearing (retrospectively). But it is the law itself, in s. 14, that prescribes which answers of a witness will be protected at a future hearing (prospectively), and whether in fact the witness qualifies for this protection. This ruling can be made only by a future board when the witness appears in its proceedings and not prospectively now and by this Board.

27This matter has been dealt with by the Supreme Court of Canada in Dubois v. The Queen(1985), 1985 CanLII 10 (SCC), 22 C.C.C. (3d) 513. It referred to the Canadian Charter of Rights and Freedoms, s. 13, which reads:

A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

28The Supreme Court held that the Charter thus widened the protection given by s. 5(2) of the Canada Evidence Act as previously interpreted (Dubois, supra, p. 521). The Court further made clear "that the protection of s. 13 operates at the second proceedings" (p. 535, emphasis added), and again, that "the evidence can only be ascertained at the time of the second proceedings (p. 537; see further R. v. Juldip (1990), 1990 CanLII 64 (SCC), 61 C.C.C. (3d) 385). In the light of this judgment I must find that I cannot properly apply the immunity vouchsafed in s. 14(1) of the Code to the matters before me, and to repeat its provisions as an order would be redundant.

29For this reason I will also not rule on the question whether the immunity adheres only to the witness as an individual or whether his/her employer/company also partakes of it. This too would interpret s. 14 prospectively, which would not be appropriate.

The Second Motion

30NAL has moved that I add the complainant's employer, Clarendon Foundation ("CF"), as a party to the proceedings, in accordance with the powers granted a board under s. 38(3) of the Code. It should be noted that CF was represented by counsel on December 11, when this Board heard arguments on the motion, and that counsel fully participated in the hearing. Also, he later submitted written reasons for his position.

31The grounds for NAL's motion are (Notice of Motion, Tab 1):

. . . the complainant has a complaint or complaints against the Clarendon Foundation which arise out of the same facts and raise the same issues as the complaint; the questions of responsibility of either the Clarendon Foundation or North American Life for the alleged infringement of the Code are interrelated; the Clarendon Foundation is a necessary party to enable the Board to adjudicate fully on the issues before it; and no prejudice will be caused by such an order.

32The relevant sections of the Code read:

38 (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.

And 2(d) of the self-same section states that among the parties to a hearing is

any person appearing to the board to have infringed the right [of the complainant] . . .

33Since there is no question that inherently I have the power to add CF as a respondent, I need to decide whether in view of the circumstances prevailing in this case I ought to do it.

34The first matter I must consider arises from the following set of events. On December 12, 1990, Mr. Thornton launched a complaint against CF (NAL Motion Record, Tab 5) for exactly the same reason as his complaint against NAL. But while in the latter case the Commission found that there was reason to ask for a board of inquiry, it dismissed the complaint against CF (Letter of the Chief Commissioner to CF, July 19, 1991; NAL Motion Record, Tab 7). The section of the Code on which this procedure was based is s. 35:

35 (1) Where the Commission fails to effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may request the Minister to appoint a board of inquiry and refer the subject-matter of the complaint to the board.

(2) Where the Commission decides not to request the Minister to appoint a board of inquiry, it shall advise the complainant and the person complained against in writing of the decision and the reasons therefor and inform the complainant of the procedure under section 36 for having the decision reconsidered.

35Mr. Thornton chose not to ask for reconsideration of the dismissal (as he was entitled to do under s. 36 of the Code), and thus this particular complaint was disposed of. May I now take up that same complaint by adding CF as a respondent?

36In the arguments on the issue the question of res judicata was raised. I fail to see that a res judicata exists here. The dismissal of the complaint by the Commission constitutes no more than the Commission's belief that an infringement did not occur, and that therefore it did not ask the Minister to appoint a board of inquiry under s. 35. Contrariwise, if the Commission had believed an infringement to have occurred it would have asked the Minister to appoint a board of inquiry, which board could then decide to give that belief its legal force.

37It is a board of inquiry and not the Commission that determines whether in fact and law an infringement has taken place, and the Commission's belief that it has is not binding upon the board. A fortiori, neither is the Commission's belief that an infringement has not taken place.The board acts in accordance with the powers granted to it by the Code, and these powers as set out above comprise its ability to add a party to the proceeding — and that would include a party like CF which the Commission believes not [to] have infringed the Code.

38Therefore, if it appears to this Board that the circumstances warrant CF to be added, it has the legal power to do so. Counsel for NAL and for the complainant argued that they so warrant; counsel for CF held that they do not, though he did not dispute that I have that power. Counsel for the Commission affirmed that the Commission was taking no formal position on whether or not CF should be added as a respondent, although it did not deem such action necessary.

39The argument to add CF arises from the fact that it was a party to the contract upon which the instant complaint is based. CF was the complainant's employer, and CF in turn contracted with NAL for its employees. The latter therefore becomes a natural target of the complaint, for it is the party that denied complainant his long-term disability (which is the matter at issue). But NAL became the insurer only as part of complainant's employment contract, and therefore it appears incontrovertible that CF, the employer, is also involved in this complaint. CF is one of the two parties who are contractually bound to the complainant in one and the same matter. That being the case, making one of the parties a respondent and the other one not, does not appear to me as the proper procedure. It would make CF a missing link in the procedure.

40Counsel for CF argues:

It is submitted that this Board of Inquiry, prior to making its decision to add the Clarendon Foundation as a party, must first determine whether or not it appears to this Board that the Clarendon Foundation has infringed the right (Written submission, No. 3).

41This argument appears to me to lack proper logic. For I cannot determine whether CF infringed Mr. Thornton's rights unless CF is added as a party before me.

42CF further argues that its being added to the proceeding is not necessary, since the matter at issue can be resolved without it being a party. To be sure, the question whether or not the NAL insurance contract, Article 2.5, violated the Code can be resolved in the absence of CF — after all, these proceedings began on that basis. It is further true that evidence could be obtained during the hearings from CF as a witness rather than as a party.

43Because of such considerations CF is not alone in believing that it is unnecessary to add CF as a party, for the Commission too takes this view, although as indicated, it will not formally oppose the motion (Transcript vol. II, p. 39).

44But such an argument does not take into consideration that an employer cannot escape responsibility for a contract in which he/she involves an employee with a third party. Doing so may be routine or the contractual terms may be a "mandatory" part of this insurance contract, as has been claimed. But neither would exculpate the employer if an infringement has occurred. This is emphasized by the Supreme Court of Canada in Brooks v. Canada Safeway Ltd., supra (at p. 1240 [D/6197, para. 44389]), when it stated that "employee benefit plans have become part of the terms and conditions of employment."

45An analogous situation was adjudicated in Ontario when complaints against the employer and the union were jointly heard, because one respondent without the other would have provided an incomplete legal scenario (Gohm v. Domtar Inc. (1990), unreported [reported 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161]; see also Hyman v. Southam Murray Printing Division (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617, especially at para. 5646).

46It has further been argued that if I find Article 2.5 of the insurance contract to be a violation of the Code, such clause will, by my order, become inoperative, and thereafter CF will no longer involve its employees in contracts which contain such a clause.

47However, voiding the article does not necessarily constitute the only remedy which the complainant might request or which might seem appropriate to this Board to award. For there might be other remedies which impact on the employer and I can order such remedies only if the employer is a party. For this reason I deem the adding of CF as a party to be necessary, despite the different opinion of the Commission. In holding this view I am in no wise retrying or reviewing the Commission's decision to dismiss the complaint against CF. This is neither my task nor is it in my power. My ruling deals purely with the legal facts as I see them and is not related to any reasons which the Commission may have brought to its decision.

48This position is further validated by the Rules of Civil Procedure, Rule 5.02(2).

Two or more persons may be joined as defendants or respondents where,

(a) there are asserted against them, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrences;

(b) a common question of law or fact may arise in the proceeding;

(c) there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief;

(d) damage or loss has been cause[d] to the same plaintiff or applicant by more than one person, whether or not there is any factual connection between the several claims apart from the involvement of the plaintiff or applicant, and there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief or the respective amounts for which each may be liable; or

(e) it appears that there [sic] being joined in the same proceeding may promote the convenient administration of justice.

49To be sure, it is possible that CF acted with the best intent, or tried to ameliorate the provisions of the insurance contract, or determined that no other insurance was available that would have given the complainant his long-term disability payments, and that provisions of this kind are universal to the industry. However, these possibilities and their impact on potential remedies can be determined by this Board only after hearing evidence concerning them; they cannot at this point avert the conclusion that CF should be added as a party.

50I believe that CF must be drawn into the proceeding as a matter of principle, for the employer cannot escape responsibility for ensuring a fair employment environment, both in fact and in law. The knowledge that meanwhile a further complaint by Mr. Thornton has been made against CF, charging discrimination in dismissing him (which complaint is currently under investigation by the Commission), has played no role in my decision.

Order

51The first motion fails:

(a) no order is made to restrict the Commission from future involvement in like or similar cases; and

(b) no order is made regarding the immunity of witnesses.

52The second motion succeeds:

Clarendon Foundation is herewith added as a party to the proceeding and will respond to the charge that it has infringed ss. 1, 4(1) and 8 of the Code.