Johnson v. East York Board of Education (No. 2), 1991 CanLII 13131

Johnson v. East York Board of Education (No. 2)

1991-07-05

Ontario Board of Inquiry

Ken Johnson

Complainant

v.

East York Board of Education

and

Richard Dodds, Douglas Wyles and Douglas Groom

Respondents

Date of Complaint:

December 3, 1984

Date of Decision:

July 5, 1991

Before:

Ontario Board of Inquiry, Graeme H. McKechnie

Comm. Decision No.:

327A

Appearances by:

Ken Johnson, on his own behalf

Mary Cornish, Counsel for the Ontario Human Rights Commission

Janice Baker and Lynn Thomson, Counsel for the Respondents East York Board of Education and Richard Dodds

Peter Waldmann, Counsel for the Respondents Douglas Wyles and Douglas Groom

EVIDENCE — credibility of witness — refusal by witness to undertake not to engage in disruptive conduct — sufficient evidence and case to meet — PROCEDURE — disruptive conduct by complainant as abuse of process — motion regarding conduct of party — COMPLAINTS — complaint is trivial, frivolous, vexatious and made in bad faith — COSTS — awarded against human rights commission for acting irresponsibly in pursuing complaint — awarded on a solicitor-client basis as compensation for expenses incurred in inquiry process

Summary: The Board of Inquiry, in unusual circumstances, dismisses the complaint of Ken Johnson in which he alleged that he was discriminated against because of his race by his employer, the East York Board of Education.

The complaint is dismissed because Mr. Johnson refused to give the Board of Inquiry an undertaking that, as a witness, he would not engage in disruptive conduct, and would answer only the questions asked of him in a direct fashion. The Board finds that in the absence of such an undertaking from Mr. Johnson the hearing cannot proceed in an orderly way, or in a fashion that will avoid an abuse of process.

Mr. Johnson's refusal to give the required undertaking results in the Board of Inquiry ruling that the complainant is not attempting to advance his case in an orderly manner. The complaint is dismissed because there is no evidence before the Board to support the allegation.

The Board of Inquiry then deals with the issue of costs which may be ordered against the Commission under s. 40(6) where a board of inquiry finds, upon dismissing a complaint, that the complaint was trivial, frivolous, vexatious or made in bad faith, or where an undue hardship was caused to the person complained against.

The Board of Inquiry finds that the respondents did incur undue hardship in the particular circumstances of the case. It also finds that s. 40(6) allows the Board of Inquiry to order compensation for expenses incurred which are directly associated with the process of a board of inquiry. It also finds however that damages, such as compensation for mental anguish or loss of reputation on the part of the individual respondents cannot be awarded under s. 40(6), since these are not "costs."

The Ontario Human Rights Commission concedes that this is a case in which payment of legal costs is warranted. The Board of Inquiry orders the Commission to pay legal costs on a solicitor-client basis in the amount of $108,230.42. It also orders the Commission to pay costs to the individual respondent, Mr. Groom, for time spent on preparation of the case in the amount of $10,027.60.

[Ed. note: See also interim decision (1988), 1988 CanLII 8872 (ON HRT), 9 C.H.R.R. D/4791.]

Cases Cited

Adams v. Bata Retail (1988), 1988 CanLII 8868 (ON HRT), 10 C.H.R.R. D/5954 (Ont. Bd.Inq.): 18, 22

Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281, 10 C.H.R.R. D/6347 (Ont. C.A.): 31

Angle v. M.N.R. (1974), 1974 CanLII 168 (SCC), 47 D.L.R. (3d) 544: 31

Bell Canada v. Consumers Assn. of Canada, 1986 CanLII 49 (SCC), [1986] 1 S.C.R. 190, 16 Admin. L.R. 205: 31

British Columbia (Workers' Compensation Board) v. British Columbia (Council of Human Rights) (1988), 1988 CanLII 2965 (BC SC), 9 C.H.R.R. D/4763 (B.C.S.C.): 17

Canada (Treasury Board) v. Robichaud (1987), 1987 CanLII 73 (SCC), 8 C.H.R.R. D/4326 (S.C.C.): 31

Canadian National Railway Co. v. Canada (Human Rights Comm.) and Action travail des femmes (1987), 1987 CanLII 109 (SCC), 8 C.H.R.R. D/4210 (S.C.C.): 31

Color Cove Ltd. v. Canada Permanent Trust Co. (1986), 1986 CanLII 2672 (ON HCJ), 55 O.R. (2d) 87: 32

F.W.T.A.O. v. Ontario (Human Rights Comm.) (1988), 1988 CanLII 4794 (ON HCJ), 10 C.H.R.R D/5877 (Ont. Div.Ct.): 16

Hyman v. Southam Murray Printing (No. 1) (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.): 17

Lang Michener and Fabian (Re) (1987), 1987 CanLII 172 (ON HCJ), 59 O.R. (2d) 353: 20

McBeth v. Dalhousie College and University (1986), 1986 CanLII 4007 (NS CA), 26 D.L.R. (4th) 321: 31

Meyer Feldman and the Law Society of Upper Canada (Re) (1989), (Ont. S.C., Doherty J.) [unreported]: 31

Nimako v. Canadian National Hotels (No. 2) (1987), 1987 CanLII 8551 (ON HRT), 8 C.H.R.R. D/3985 (Ont. Bd.Inq.): 22

Ontario (Human Rights Comm.) v. Fort Frances (Town) Commissioners of Police (Ont. Bd.Inq.) (1987), 1987 CanLII 8553 (ON HRT), 8 C.H.R.R. D/3884 (Ont. Bd.Inq.): 18

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: 31

Ontario (Liquor Control Board) v. Ontario (Human Rights Comm.) (1988), 1988 CanLII 8926 (ON HCJDC), 9 C.H.R.R. D/4868 (Ont. Div.Ct.): 20

Ouimette v. Lily Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19 (Ont. Bd.Inq.): 31

Pham v. Beach Industries Ltd. (1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 (Ont. Bd.Inq.): 22, 31

Hamilton-Wentworth (Regional Municipality) and Hamilton-Wentworth Save the Valley Committee, Inc. (Re) (1985), 1985 CanLII 1957 (ON HCJ), 51 O.R. (2d) 23: 31

Ryan v. McGregor (1925), 1925 CanLII 460 (ON SCAD), 58 O.L.R. 213: 31

Sinclair v. Peel Non-Profit Housing Corp. (No. 1) (1989), 1989 CanLII 9075 (ON HRT), 11 C.H.R.R. D/341 (Ont. Bd.Inq.): 17

Legislation Cited

Canada

Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.) 1982, c. 11, s. 96: 17

Ontario

Human Rights Code, 1981, S.O. 1981, c. 53

s. 33: 16, 22

s. 35: 22, 31

s. 36: 31

s. 37: 31

s. 38: 31

s. 40(1): 20, 22, 31

s. 40(6): 3, 14, 17, 20, 23, 31

s. 40(6)(a): 22

Statutory Powers Procedure Act, R.S.O. 1980, c. 484: 13

Authorities Cited

Black's Law Dictionary, 5th ed. (St. Paul, Minn.: West Publishing Co., 1979): 23

Edgar, S.G.G., Craies On Statute Law (London: Sweet & Maxwell, 1971): 31

Evans, Janisch, Mullan & Risk, Administrative Law (Toronto: Emond Montgomery Publications, 1980): 8

1The undersigned was appointed as a Board of Inquiry by letter dated March 28, 1988, to hear and decide the complaint of Mr. Ken Johnson alleging discrimination in employment on the basis of race, colour, ancestry, place of ethnic origin and ethnic origin by the East York Board of Education and Richard Dodds, Douglas Wyles and Douglas Groom.

2The appointment of the undersigned as a Board of Inquiry followed the appointment and resignation of two other Boards of Inquiry which had not progressed to the merits of the complaint. The first Board of Inquiry was conducted by Mr. Ian Springate who was appointed by letter dated March 6, 1987, and resigned as the Board of Inquiry by letter dated July 29, 1987. Professor B. Hovius was appointed as the second Board of Inquiry by letter dated August 21, 1987, and held hearings in the fall of 1987. Professor Hovius resigned as the Board of Inquiry by letter dated February 8, 1988, and that led to the appointment of the undersigned.

3Following a hearing on April 25, 1988, concerning procedural matters, the Board of Inquiry proceeded with hearings into the merits of Mr. Johnson's complaint. The complaint was dismissed at a hearing on March 16, 1989 (Vol. 18, p. 46), and hearings then proceeded on the matter of costs pursuant to s. 40(6) of the Human Rights Code of Ontario [1981, S.O. 1981, c. 53]. The following chart shows the dates of hearings on the merits and on the matter of costs with an indication of the volume of the transcript associated with each:

MERITS

Volume I

April 25, 1988

Volume II

September 20, 1988

Volume III

September 23, 1988

Volume IV

September 27, 1988

Volume V

September 29, 1988

Volume VI

November 15, 1988

Volume VII

November 17, 1988

Volume VIII

November 18, 1988

Volume IX

November 29, 1988

Volume X

December 1, 1988

Volume XI

December 2, 1988

Volume XII

December 6, 1988

Volume XIII

December 8, 1988

Volume XIV

January 17, 1989

Volume XV

January 19, 1989

Volume XVI

January 24, 1989

Volume XVII

January 27, 1989

Volume XVIII

March 16, 1989

COSTS

Volume XIX

May 1, 1989

Volume XX

May 2, 1989

Volume XXI

June 5, 1989

Volume XXII

June 8, 1989

Volume XXIII

June 20, 1989

Volume XXIV

June 21, 1989

Volume XXV

October 5, 1989

Volume XXVI

October 6, 1989

Volume XXVII

October 26, 1989

Volume XXVIII

October 31, 1989

Volume XXIX

November 2, 1989

Volume XXX

January 4, 1990

Volume XXXI

May 23, 1990

Volume XXXII

May 24, 1990

Volume XXXIII

May 25, 1990

Volume XXXIV

May 31, 1990

4At the hearings held on April 25 and September 20, 1988, various procedural matters were dealt with and these can be found in Volumes 1 and 2 of the transcript. Beginning with the hearing dated September 23, 1988 (Vol. 3), opening statements were made by Ms. Cornish, counsel for the Commission; Mr. Johnson, the complainant and Mr. Waldmann, counsel for the respondents. Mr. Johnson was the first witness called by the Commission and his evidence began with the hearing dated September 27, 1988 (Vol. 4). Mr. Johnson remained on the witness stand until the hearing held January 27, 1989 (Vol. 17), at which time, by a ruling of the Board of Inquiry, Mr. Johnson's evidence was brought to a conclusion, without an opportunity for cross-examination.

5The examination in-chief of Mr. Johnson was fraught with difficulties as numerous objections were raised with various parts of his evidence. In addition, the transcripts of the hearings will demonstrate that numerous verbal interchanges took place between Mr. Johnson and counsel for the respondents, in particular, Mr. Waldmann. In fact, the exchanges between Mr. Johnson and Mr. Waldmann started before opening statements were put on the record. In my respectful opinion, nothing is to be gained at this point from providing a detailed description of all of the evidence in-chief, as far as it went, and the various objections raised. The transcripts provide an accurate recital of all of the events. The transcripts show that Mr. Johnson's answers to questions posed by Ms. Cornish were frequently indirect, contained personal opinions and occasional objections by counsel for both respondents. Mr. Johnson often complained about the objections raised. Matters came to a head during the hearing on January 17, 1989 (Vol. 14), at which time Mr. Johnson made a number of remarks directed at Mr. Waldmann, counsel for the respondents. Mr. Johnson stated, inter alia:

Instead, what we have here is a gloating counsel for the defence behaving . . . and listen to what I am saying very attentively . . . behaving like a very generous, very giving, disease-infected whore. (Vol. 14, pp. 11–12).

6Exception was taken to these remarks by all three counsel in attendance. At the hearing held on January 19, 1989 (Vol. 15), Mr. Waldmann indicated that he wished to bring a motion asking the Board of Inquiry to issue an order to the witness, Mr. Johnson, to apologize for the statement made during the hearing held on January 17, 1989, supra. Counsel for the respondents, East York Board of Education and Mr. Dodds, joined with Mr. Waldmann in requesting an apology (Vol. 15, pp. 10–12). Ms. Cornish, counsel for the Commission, stated that an apology, in the view of the Commission, was not appropriate since it was an attempt to legislate a thought process; however, she indicated that there: " . . . should be an effective way in which to ensure that such a disrespectful comment does not . . . is not allowed to continue" (Vol. 15, pp. 12–13). Further on p. 13 of Vol. 15, Ms. Cornish goes on to state:

. . . it is our position that it is appropriate, given that there have been prior indications from the Chair that disrespectful or derogatory comments about counsel are inappropriate, that there should be an undertaking made by Mr. Johnson that he will not engage in further comments such as that, and that the hearing cannot continue unless there is some assurance and undertaking by Mr. Johnson that this type of comment will not continue, because otherwise there cannot be an assurance that the proceeding can proceed fairly.

7Mr. Johnson also spoke to the motion, objecting to it on the grounds that he believed that he was behaving in a reasonable manner and that he was attempting to ensure that he did not hurt anyone (Vol. 15, p. 17). Mr. Johnson explained the various comments that he had made which occasioned the motions from counsel; however, he also indicated that he would only apologize if someone could demonstrate to him that he had been wrong in his actions. Mr. Johnson also referred to the process of a Human Rights Board of Inquiry indicating great concerns, disagreement with and contempt for that process. Mr. Waldmann reconsidered his motion to apologize and indicated that what was needed was an order from the Board of Inquiry to ensure that " . . . the hearing continue in a proper and fair fashion to all the parties" (Vol. 15, p. 52).

8At the hearing held on January 24, 1989 (Vol. 16), the undersigned made a ruling which is contained in Vol. 16 of the transcripts. The ruling, in part, and edited to ensure that [sic] the appropriate context, was as follows:

I reviewed the transcript from January 17 in the afternoon, and the entire transcript of January 19, with the submissions. From those two transcripts, the request of the Chair by counsel in the matter of an order is three-fold; firstly, that Mr. Johnson engage in the conduct normally expected of a witness, and that comments such as those made on Tuesday and again on Thursday afternoon with respect to Mr. Waldmann's tactics, be stopped.

Secondly, that Mr. Johnson undertake to obey the rulings made by the Board of Inquiry, and to answer questions directly.

Thirdly, that a finding be made on Mr. Johnson's motivation for the comments made.

In preparation for answering the requests made, I reviewed the transcripts from the first thirteen days of hearing, Volumes I through XIII, the excerpt from January 17 in the afternoon, and what is entitled Volume XV, which is the transcript of January 19, 1989, with particular emphasis on the various objections raised during the examination in-chief.

I emphasize that I looked, in particular, at the objections raised, since they were raised on the basis of whether or not certain material should be admitted in evidence, whether material was relevant, and whether or not the conduct of the witness before a Board of Inquiry was appropriate.

My review of these transcripts demonstrates conclusively that there is clearly a problem in the conduct and process of this hearing. The result of that problem is an obscuring of the full disclosure of the facts counsel is attempting to place in front of me.

A review of the transcripts demonstrates that, over fifteen days of hearing, not all of which were concerned with direct evidence, some of which were concerned with legal argument, there were 141 objections or interjections made by counsel around the table, not just by one counsel but in total. It means to me that the process itself has difficulties, and will continue to have difficulties if it is allowed to proceed in the same way.

What I have attempted to do, therefore, is to look at the submissions in some detail and attempt to reach a conclusion with respect to the requests made of me following a reading of the submission.

In the transcript from the last day of hearing, January 19, 1989, Mr. Johnson, in his submission, stated when he was indicating his approach to teaching and the power that resided in a teacher and I quote from the transcript at p. 22 (Vol. 15):

. . . As a teacher, "Get up kids. Sit down. Do this. Do that." I tell my students, "Feel free always to stop and ask Mr. Johnson, ”˜Why did you say I should do that?' ”˜I did this because so-and-so, and you said so-and-so. Do you think you are being reasonable?' " . . .

I have decided to approach the answers to the questions asked of me with the same frame of reference. Rather, than simply making an order, I am going to attempt, although it may be rather lengthy, to explain in some detail, using the submissions, the reasoning behind my final conclusion.

Looking again at the submissions, Mr. Johnson, at p. 31 (Vol. 15), stated:

. . . But when I compare the system, that is not at all congruous because we are talking about a criminal case.

He has made an apology on a number of occasions to the criminal process and to the adversarial process. He also stated in his submission, at p. 35 (Vol. 15):

. . . What I would like to see both parties doing so that we can be neutral . . .

Indeed, the parties are not neutral. Mr. Johnson has lodged a complaint based on what he feels has occurred to him over a number of years as a teacher. Therefore, there are roles here of complainant and respondent. He also likens the process to a criminal court and I think this deserves some response.

In the book by Evans, Janisch, Mullan and Risk, Administrative Law, Emond Montgomery Publications, Toronto, 1980, the authors quote from a case, T.A. Miller v. Minister of Housing and Local Government (1968), 1 W.L.R. 992 as follows:

. . . A tribunal of this kind is master of its own procedure, provided that the rules of natural justice are applied. Most of the evidence here was on oath, but that is no reason why hearsay should not be admitted, where it can fairly be regarded as reliable. Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a Court of Law . . . (p. 208)

The evidence that is being adduced at this Board of Inquiry is, as has already been indicated, not only evidence that would be adduced in a court of law, in a criminal proceeding. Hearsay has been accepted and, should these proceedings continue, will be accepted, and there has been a ruling, which I do not retract, what Mr. Johnson, in addition to adducing factual evidence, will be allowed to put in evidence of his perception of what happened to him as a result of various factual incidents.

With respect to the adversarial process, quoting once again from the Evans text at p. 199 as follows:

. . . adversary processes serve important functions in our society. First they recognize and give active voice to our extraordinary diversity of political, economic, social and other interests. Second, they provide each participant with a strong incentive to adduce facts, assert values, controvert the facts and values of others, and advance his or her own view of the public interest, because those affected are most likely to know what information and values are relevant to the decision in question. The adversary process sharpens and gives added content to the issues requiring decision, while stimulating innovative approaches and solutions. Third, adversary processes, by providing a systematic channel for dissenting criticism, serve as solvents for encrustations of power, state power, privilege and ideological orthodoxy. Finally, they invite participation in the decision-making process by those who are affected. Participation is valuable in a democratic society, quite apart from its potential contribution to the quality of the decisions. It is not surprising, then, that adversary processes enjoy considerable constitutional, statutory and judicial protection; in a liberal society in which there is no received or even widely shared notion of truth, they are simply indispensable for resolving sharply conflicting interests.

The process in which this Board of Inquiry is involved is an adversarial process and it has met the test for a number of years under the Human Rights Code.

Mr. Johnson stated, at p. 34 in the transcript (Vol. 15), as part of his submissions, as follows:

. . . I am talking about a condition that has been going on ever since courts were in existence, and some of the disparities in academic merit I mentioned, and that is why the evolution takes place, because certain people ought not to be able to defend themselves and certain people, because of the power structure, have had certain protection. They were insulated in certain ways . . .

The insulation is precisely to enable a Board of Inquiry to look at the evidence in a dispassionate manner, to separate fact from perception, conclusion, and to analyze the facts in light of circumstances, attitudes and values.

On numerous occasions, Mr. Johnson has asked for a more "organic" discussion, with an issue being presented and individuals who were involved in that issue taking their places around a table, being questioned, and engaging in a discourse back and forth, so that once that issue was discussed fully, we would move onto another issue.

The adversarial process, and the administrative tribunal process, is generated precisely to avoid what becomes a struggle in what could be described as a round-robin discussion. I have made the analogy, on some occasions during the course of these hearings, to the labour arbitration process, in which, as in this particular case, emotions can run very high. A grievor who has been disciplined and perhaps discharged can be expected to feel quite emotional. Indeed, Mr. Johnson, in his testimony, indicated that, at one point when his teaching contract was in process of being terminated, he felt great emotion.

In the labour arbitration process, the adversarial technique is used and witnesses are placed on the witness stand, evidence is adduced, arguments are made at the end of the evidence, precisely to avoid great emotion being interjected into the process, since the individuals would be expected to become emotional as they relive a particular incident, especially if all actors are talking at once.

Therefore, the process that has evolved is one that attempts to separate that emotion, not dispense with it, but separate it.

Mr. Johnson, in his submissions, also stated, at p. 18 (Vol. 15) as follows:

. . . I was emotional, as I perhaps am now. I was in control. I am always in control of my behaviour, at least I try to be. If I am not, and someone tells me why I have not been in control of my behaviour, I will try to make adjustments to control my behaviour. Now you are trying to control my anger. When I am angry, you are bloody well going to know that I am angry because I am human and I do not want as I mentioned . . . that is what I mean when I tell people, tell me when to think, or what to think, or how to think, or where to make apologies.

With great respect, this Board of Inquiry is not attempting to control someone's emotions, or control someone's anger. The controls in this process are controls to ensure that evidence is adduced in a logical, rational manner, in a sequence that makes sense, and that when the factual evidentiary materials are put forward, they are put forward in a clear and concise manner. Statements with respect to feelings of anger, feelings of anguish, feelings of upset, are quite proper to be made, and no one would suggest that any witness would have to sublimate emotions or anger, rather they cannot be allowed to burst forward.

Further in his submissions, Mr. Johnson stated as follows (Vol. 15, p. 23):

So that when I make a statement, I am not making a statement that governs one person and not another. It governs everyone involved. In dealing more precisely with this statement, I have been saying constantly, I have been threatening, promising to leave. I am not doing that because I want to create a conflict. I know very well that I am the one who initiated this hearing, and I am the one who went on begging, although I am a proud man, beseeching, asking that we should not be here at all . . .

With great respect, the complainant cannot have it both ways. If Mr. Johnson has been asking and initiating a hearing, and at the same time begging not to be here, he must, with great respect, choose. If he chooses to put forward his evidence to this hearing, then the rules of an administrative tribunal apply. If he chooses not to be here then, of course, that is his choice.

Turning to Mr. Johnson's role as a witness, Mr. Johnson stated at p. 30 (Vol. 15), in the transcript as follows:

. . . So that we had a group of people who were called witnesses and those witnesses, because of the then society, were exposed to certain knowledge which was extremely limited, and they had certain rigid constraints to follow which, again, were very limited, as they had other people who would be talking for them and defending them as we see now. I do not agree with that. I do not agree with that at all. If the situation warrants it, fine . . .

It is my view that the situation before me indeed does warrant the role of the witness. It is precisely this kind of situation, where feelings and emotions are understandably part and parcel of the process of Mr. Johnson's employment, that a procedure can be implemented which attempts to defuse but not remove the emotional state, so that the evidence can stand by itself, and that emotional feeling can be reported, but not be a part of the activity.

As Mr. Johnson has given his evidence, he has indicated that he has felt abused in his role as a witness and that he is not prepared to accept negative statements about his teaching or about his role as a witness. Earlier in this submission, on p. 23 (Vol. 15), of the transcript, Mr. Johnson says:

. . . But then here lies the point, when am I going to accept all these negative statements, all these totally distorted views about my teaching, about my dedication, about my motives. If I accept it all, because I do not want to have this kind of conflict, then it is going to be construed that I acquiesce or, by virtue of my silence, I speak in accordance with these criticisms against me . . .

I would state most emphatically that the Board of Inquiry does not ask any witness or any complainant to indicate, by answering questions directly, by following the laid-out process, that it is a sign of acquiescence or acceptance of criticisms. Indeed, the Board of Inquiry has been chosen to ensure that the criticisms that were lodged against Mr. Johnson are investigated in detail.

Mr. Johnson then goes on, at the same page, to state:

. . . Then the other side to that dilemma is that, if I speak against it, I am at one and the same time living up to, or enabling to be vindicated, the self-fulfilling prophecy. So I darn well realize that I am caught in a dilemma.

The dilemma may be perceived by Mr. Johnson, however, once again, I would state emphatically that the initiation of these proceedings was at the request of Mr. Johnson, who feels, and who continues to feel, that he has a legitimate complaint against certain individuals and organizations, and that his human rights have been violated. That is precisely why we are here and the presentation of his evidence in no way should be read as an acquiescence or an agreement with criticisms, or indeed that he is living up to some self-fulfilling prophecy. He is here to put his case in front of a Board of Inquiry for adjudication. That is exactly what is attempted to be accomplished.

Further in his submission, at p. 25 of Vol. 15 of the transcript, Mr. Johnson, in commenting on what appears to be a defiance of existing laws, states that:

. . . My motive is not to defy the existing status . . .

If Mr. Johnson's motive is not to defy the existing status, that is the laws by which this administrative tribunal are governed, then if he does defy the existing status by failure to respond to questions directly, by engaging in a discourse with counsel from the witness stand, then indeed the consequence is an inability to present his case in a clear manner, so that the adjudication process can continue.

Mr. Johnson also states that when he made his statement on Tuesday which occasioned the demand for an apology, he indicated that he was speaking about . . . I am quoting from page 27 of the transcript:

. . . I am speaking about the selling of one's self at the expense of one's principles . . .

I would emphatically state that following the procedures as laid down by the administrative tribunal is not seen by a Board of Inquiry as selling one's self at the expense of one's principles. Indeed, what is being asked of the complainant, and of any witness, is that the relevant evidence be put forward, so that it can be judged, and that all of the evidence be put forward. As I have indicated earlier, that evidence is both factual evidence in terms of incidents, and I have ruled that Mr. Johnson's perceptions can be adduced into evidence. I do not change that ruling.

Finally, on the matter of his role as a witness, Mr. Johnson stated, at page 28:

. . . The sort of thing I am after is something that will go beyond this to encourage Directors of Education and Superintendents of Schools, that they must be more sensitive in making decisions . . .

I indicated, at the very first day of this hearing, in response to a number of Mr. Johnson's concerns, that the impact of a decision of a Board of Inquiry may well lead to some change. Mr. Waldmann indicated, at that time, that a Board of Inquiry decision was not to be seen as an instrument of change, a position with which I happen to agree. However, my statement was in response to one of Mr. Johnson's concerns, that indeed there may need be some change in the system. I felt it important to let him know that decisions of Boards of Inquiry in this field, as in other fields, can sometimes lead to that, although their purpose is not necessarily that. Their purpose is to look at whether or not there has been a violation of the statute.

I would indicate, however, that if Mr. Johnson's concern is that individuals be encouraged to be more sensitive, the only way he can do that in this forum is to ensure that all of the evidence and facts are presented so that, to the best of his ability, his case is proved. It is then up to the Board of Inquiry to make a final decision, based on the evidence and arguments presented. But if the evidence and arguments are prevented from being adduced, then his own goal will be frustrated.

A statement must be made about the comments that have been reported in the press, and were made during the hearing, one comment made on January 17, in the afternoon, repeated during Mr. Johnson's submissions on January 19, and the second made on January 19. At p. 27 of the transcript (Vol. 15), for January 19, 1989, Mr. Johnson stated:

. . . I have often-times, in private, requested of the counsel of the Human Rights not to use the kind of dirty tactics that Mr. Waldmann uses . . . I perceive as being dirty.

Ms. Cornish, in her submissions, reported at p. 14 (Vol. 15), of the transcript:

However, it is our view that the role of counsel in these proceedings has to be such that all counsel are able to properly represent their clients by characterizing the conduct of the other parties . . .

That is the role of counsel and I have indicated on earlier occasions that counsel's own personal opinions are irrelevant to this Board of Inquiry, and they are there to characterize the conduct of the parties.

At this point in time, Mr. Johnson finds himself in the role of a witness providing examination in-chief. Once his testimony is given, he will find himself, as he also is, in the role of a party who has standing before me, according to the Human Rights Code. He, too, will have the same opportunity as any other representative of a party, to object to a particular piece of evidence or line of questioning.

Mr. Johnson goes on to state in his submission, at p. 24 of the transcript of January 19 (Vol. 15):

. . . I think if I point out that when I criticize the Director of Education, it is not Mr. Dodds I am criticizing in a vacuum. I am not criticizing him in isolation. I am criticizing his behaviour . . .

I believe that statement indicates that Mr. Johnson does understand that criticism of a witness is not a personal criticism. It, indeed, is the criticism of conduct or behaviour or, a question regarding the relevance or the admissibility of a piece of evidence.

Mr. Johnson goes further in his submission with respect to the matter of the apology and stated, at p. 25 (Vol. 15):

I would be the disease infected whore if I said I apologize and when I got outside laugh at you. I am not going to do that. You are wasting your breath. Do not waste your breath. If you can convince me that what I said was wrong, I would apologize immediately. I am not beyond making apologies . . .

Then finally, bearing on another matter that is placed before me, at pp. 32–33 (Vol. 15) of the transcript, Mr. Johnson states:

There are many other things I could point out, but a few of them that I will point out, and I will try to be all-encompassing and not go in great detail, and that is what is the totally asinine statement that was made by the counsel for the defence, a totally subjective and ultra-biased and untrue statement, and I will tell you why I say that. The accusation that I was grandstanding for the press is perhaps not a quote but the meaning, let us just look back at some of the things that he said. It must be borne in mind that I, at no time . . . and I am saying this before all the witnesses who are here . . . I have always, in these so-called outbursts . . . they are not outbursts, they are just rational statements, very rational statements. So that, how this may be viewed, if it appears as if I have disrespect for the Court, you are asking the wrong questions. You must not ask whether Johnson does not respect the Court. You must ask if the Court has earned the disrespect that Johnson gives to it.

It is as if I put a mirror before your face, and if I hold a mirror before your face and you find that what you see in the mirror is ugly and you smash the mirror, you are just as darn ugly or unacceptable to your own self before you smashed the mirror. So what I think I am doing, I am mirroring the ugliness of the Court. I am mirroring the total lack of respect that I have for it, and I have been very polite and very generous in my not . . . in my just being here.

In looking through the submissions made, there is one other quote that is relevant, prior to my reaching a conclusion on this matter, and that, once again, can be drawn from Mr. Johnson's submissions. He states, as reported on p. 29 of the transcript on January 19 (Vol. 15):

. . . I do not mean that you are to go outside of the framework of the law. You must be governed by the law. I must be governed by the law. Because I am being governed by the law, that is why I am here. But I resent it, and I hold the entire proceedings in utter contempt . . .

This Board of Inquiry must accept the fact that the complainant resents being here. It must accept the fact that he holds the proceedings in utter contempt. That he holds those feelings has not been stated. It has been recorded. It is understood and it need not be reinforced. Mr. Johnson does not have to engage in conduct to demonstrate his resentment or contempt. This Board of Inquiry accepts his statement.

My review of the submissions of Mr. Johnson, and I have concentrated on the submissions of Mr. Johnson because the submissions of Ms. Cornish, Ms. Thomson and Mr. Waldmann bore really on the posing of the questions that they wished me to address. It was Mr. Johnson who was accorded, I think logically, the opportunity to reply to those questions. So I have concentrated my research on his submissions.

But my review of those submissions, and all of the transcripts that we have had to date, lead me to three conclusions. Firstly, an order to apologize is not appropriate under the circumstances, it will serve no useful purpose and will not be fruitful. In this matter, I agree with Mr. Waldmann, who made a somewhat similar statement, and I agree with Ms. Cornish, when she indicated that an apology would be an attempt to control a thought as opposed to address conduct.

Secondly, I find that there is insufficient evidence to make finding of Mr. Johnson's motivation, as expressed by Mr. Waldmann, in the matter of the press.

Thirdly, I find that the conduct of the complainant, in his role as a witness, has been such that, if continued, the hearing cannot proceed in an orderly fashion, following Section 9 of the Statutory Powers Procedure Act, or in a fashion that will avoid an abuse of process, according to Section 23 of the Statutory Powers Procedure Act.

Therefore, this Board of Inquiry directs the complainant to provide an undertaking that he will not engage in the conduct that occurred on Tuesday, January 17 in the afternoon, and Thursday, January 19, and that, further, he will undertake to answer only the questions asked of him in a direct fashion, bearing in mind that there will be a time for both he and counsel for the Human Rights Commission to present arguments based on the evidence.

I must add that there are consequences to Mr. Johnson's failing to provide such an undertaking. To use a phrase that Mr. Johnson used, listen to what I am saying very attentively, the failure to provide the undertaking will mean that the hearing cannot proceed in an orderly fashion (Vol. 16, pp. 2–31).

9Mr. Johnson was given until the next hearing date, January 27, 1989 (Vol. 17), to reply to the ruling of the Chair. Mr. Johnson's reply concluded in part as follows (Vol. 17, pp. 38–43):

From looking over the transcript, I am deeply convinced that my words have been distorted, the occasion have been distorted, and perhaps the distortion is a direct result of the objective of those who ought to have listened.

On the very first day, I pointed out the international impact of racism. We speak about South Africa. One thing you can say about South Africa, they are not pretentious.

I would hesitate to say that that is the case here. I would much prefer to live in an unpretentious society, and we know what we are fighting against. Here the enemy is disguised, and the enemy is oftentimes very close, and the enemy sometimes act as friends, but there should not be enemies.

There should be an exploration of truth; an exploration of what makes people do what people do when it comes to labour relations. There should be high qualified people here to analyze what I am saying, in an unemotional way, so that we can have results.

I really care a lot if this is thrown out, but if it is thrown out,it would not be construed as a neutral gesture. That will be taking sides. That would be absolving those who have been accused of being racist. That would be giving a very strong message saying "Be as racist as you want."

And so, I would hesitate to be the first one. I would hesitate to be the only one to have any undertaking that I am not going to be disruptive. As a matter of fact, I would hesitate to say that I was disruptive at all . . .

There are very effective, very effective, very contradictory statements that I should cover. As a matter of fact, one person who has tremendous bias, white person, in dealing with this, stated that . . . and that was a person from a Board of Education, superintendent of a Board of Education, and I thought that was irrational because there was a conflict of interest . . . statement was clear, and there were witnesses there . . . that the way Johnson was treated, no other person was treated.

There is, unquestionably, a difference.

And from the way things are going here, I don't think that will even come out because we are not dealing with the issues. We are muddying the water, and I question, very severely, whether that is deliberate.

I question that very, very severely.

So, perhaps I will have the apology that one wants. I am not adverse to apology, but so far nobody has convinced me that I am wrong, and because whatever I did was in response to what someone else did, unless lawyers are privileged and I am not, and the very thought, if a witness seems to smack of traditional biases, then if we all, in sequence, come up and have undertaking, I will gladly do that.

If I am the only one to have an undertaking, that is something that has to be pondered. I question the justice of this whole hearing. I think perhaps it should be analyzed. I think, although I am not at all saying that white people are incapable of making judgment on racism, because there can be . . .

And in conclusion . . . my mother gave me this ring a little before she died. I will use it symbolically now . . . if we had the circle . . . I am sorry, but Mr. Reporter is going to get a very hard time, and my apologies for this . . . but if we had the circle enclosed by my span, and within this are all the legal things that one is allowed to do, and outside are all, in the universe beyond, are all the things that one is not supposed to do, and the closer to get to the periphery, the closer you go to what you ought not to do.

If we had a nucleus, and I diminish my circle, but ignore that. It is the same big circle . . . if we had a nucleus in the dead centre of it . . . right in this ring, I set my behaviour pattern, and well within the confines of what is acceptable, I behave.

And if, when I am acting in the nucleus . . . of the nucleus that we have, the outside parameters are the wrong one . . . if when I am acting within that parameters, someone walks inside there, and tell me when to shut up, and tell me when to speak up, and tell me that I am not to say things that did happen, and at the same time, tell me that they are in pursuit of the truth, I have to question that.

And when someone gets in that finer circle of my behaviour pattern, and want to tell me that I am wrong, they will have to convince me.

So, here I am with an open mind, asking to be convinced.

10After Mr. Johnson's reply, the Board of Inquiry issued the following ruling (Vol. 17, pp. 44–46):

RULING

Professor McKechnie: Mr. Johnson, the complainant in this case, has been ordered by the Board of Inquiry to provide an undertaking that he would not engage in conduct of the type established on January 17, 1989 and January 19, 1989.

Further, he was to provide an undertaking to answer only the questions asked of him, in a direct fashion.

The Board of Inquiry stated that the failure to provide such undertaking would mean that the hearing could not proceed in an orderly manner.

Mr. Johnson has stated today that he will not give the undertaking requested unless all participants do the same.

This is not the direction given by the Chair, nor is Mr. Johnson's request appropriate.

In view of Mr. Johnson's failure to cooperate in the matter of his examination in-chief, it is the opinion of the Board of Inquiry that Mr. Johnson, the complainant, is not attempting to advance his case in an orderly manner.

Mr. Johnson: Wow.

Professor McKechnie: And his refusal to follow the Board's order will lead to an abuse of process.

This, in essence, is a refusal by the complainant to proceed with his own evidence.

As a result, I would now ask Ms. Cornish, who is counsel for the Commission, if the Commission intends to put forward any other witnesses to adduce any further evidence?

11The hearing adjourned at this point while Ms. Cornish sought instructions from the Commission and spoke with Mr. Johnson. Ms. Cornish replied to the Board of Inquiry that the Commission was: " . . . not in a position to provide you with evidence of a prima facie case" (Vol. 17, p. 48).

12Counsel for the respondent Board of Education and Mr. Dodds, counsel for the respondents Messrs. Groom and Wyles, and the complainant, Mr. Johnson, were then given an opportunity to decide if any other evidence would be forthcoming on the merits of the complaint. No additional evidence was called. At the hearing held March 16, 1989 (Vol. 18), the three counsel indicated that there was no evidence, in law, before the Board of Inquiry. Mr. Johnson was given one last opportunity to make any comment regarding the proceedings and he chose not to do so. As a result, the undersigned concluded as follows:

. . . there is no evidence before me, then I believe my responsibility is clear that the case of Mr. Ken Johnson, as the complainant, against East York Board of Education, and Mr. Richard Dodds and Mr. Douglas Wyles and Mr. Douglas Groom is hereby dismissed . . ." (Vol. 18, p. 46).

13The reasons for that decision are well documented in the transcript volumes noted, supra. Briefly stated, the complainant, Mr. Ken Johnson, refused to obey an order from the Board of Inquiry that he conduct himself in a manner consistent with that of being a witness, which was his position at the point in time all three counsel requested that the Board of Inquiry make the order. It is the respectful opinion of the undersigned that without Mr. Johnson's agreement regarding his behaviour on the witness stand, the hearing could not proceed in an orderly manner nor was it possible to avoid an abuse of process pursuant to the relevant sections of the Statutory Powers Procedure Act [R.S.O. 1980, c. 484]. The effect of the ruling was to request an alteration in Mr. Johnson's behaviour, subject to the penalty that should his behaviour not change and/or should he refuse to obey the order of the Board of Inquiry, that his evidence would be brought to a conclusion. Although this was a most unusual step, it was clear from the motions made by all three counsel and by Mr. Johnson's behaviour, as reflected in the relevant transcripts, that the Board of Inquiry had no other option in the matter.

14Following the dismissal of the complaint, counsel for the respondents, Messrs. Wyles and Groom, Mr. Waldmann, joined by Ms. Baker, counsel for the respondent, East York Board of Education and Mr. Dodds, indicated that the respondents intended to ask that s. 40(6) of the Human Rights Code be followed. Section 40(6) states as follows:

40(6) Where, upon dismissing a complaint, the board of inquiry finds that,

(a) the complaint was trivial, frivolous, vexatious, or made in bad faith; or

(b) in the particular circumstances undue hardship was caused to the person complained against,

the board of inquiry may order the Commission to pay to the person complained against such costs as are fixed by the board.

15A hearing on costs then was undertaken. At the outset, the parties asked for a ruling on whether the meaning of the word "costs" in s. 40(6) could be decided before the calling of evidence. It was the ruling of the Board of Inquiry that the meaning of costs could be left to final argument and that the question that should be addressed at the outset was whether or not there was evidence to demonstrate that the complaint was trivial, frivolous, vexatious, made in bad faith or caused undue hardship against the respondents (Vol. 18, p. 141). As a result of that ruling, the Board of Inquiry then turned to the adducing of evidence by witnesses of the respondent. Part of the evidence to be adduced would be to demonstrate whether the Board of Inquiry should exercise the option given to it by s. 40(6), that is, that the Board may order costs. In preparing to structure the evidence appropriately, the Board of Inquiry was asked to make a ruling regarding the scope of review in s. 40(6). The full submissions of the parties are found on Volumes 19 and 20 of the transcripts. Briefly stated, counsel for the Commission argued that if a broad review of actions taken by the Commission prior to a Board of Inquiry proceedings was pursued, this would be analogous to a Board sitting in review of the Commission (Vol. 19, p. 48). It was the Commission's position that it had sole responsibility;

. . . pursuant to ss. 32, 33 and 35 of the Code, to determine the nature and scope of the investigation and conciliation efforts, and to determine taking into account the factors in s. 33 and 35, whether a complaint should be dealt with, or not dealt with, and whether the matter should be referred or not referred to a Board of Inquiry (Vol. 19, p. 49).

16It was the Commission's view that to go back to a time period prior to the commencement of a Board of Inquiry involved reviewing the Commission's actions pursuant to s. 33 of the Code, which would be improper. The Commission referred to Re Federation of Women Teachers' Association of Ontario and Ontario Human Rights Commission and Margaret Tomen et al., Supreme Court of Ontario (Div.Ct.), December 23, 1988 (McKeown J.) [reported 1988 CanLII 4794 (ON HCJ), 10 C.H.R.R. D/5877]. In addition, the Commission argued that neither the Commission nor the Commissioners are compellable witnesses and the respondents' request for costs would compel a review of the way in which Commissioners made their decision, and that was neither permitted by the Code nor appropriate.

17The Commission argued that if a Board of Inquiry found that a complaint met any of the tests in s. 40(6), it would still have to decide whether to exercise its discretion to award costs. This would involve a consideration of whether the Commission was responsible regarding the issues in s. 40(6) (Vol. 19, p. 67). The Commission referred to Hyman v. Southam Murray Printing (No. 1)(1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 and notes of a decision in Sinclair v. Peel Non-Profit Housing Corp. (1989), unreported [now reported 1989 CanLII 9075 (ON HRT), 11 C.H.R.R. D/341], decision of M. Friedland, for the position that a Board of Inquiry should not review actions of the Commission in the period of time prior to the Board's deliberations. In the instant case, the Commission argued that the respondents would have to lead evidence to demonstrate actions pursuant to s. 40(6), since there was no evidence in law arising from examination in-chief, given that Mr. Johnson did not complete his evidence in-chief. (Note: The Board of Inquiry's decision on the use of the transcript is found at pp. 30–35 [D/186–187] of this decision. In the Commission's view, the Board of Inquiry would take on powers reserved for the courts pursuant to s. 96 of the Constitution Act [Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.) 1982, c. 11] if it reviewed the Commission's work prior to the Board of Inquiry. (See Workers' Compensation Board v. Kuhn-Kuhn (1988), 1988 CanLII 2965 (BC SC), 9 C.H.R.R. D/4763.) [A]nd it is the Commission's view that the Board of Inquiry cannot infringe upon the rights of the courts.

18The Commission argued that the presentation of the case at the hearing or evidence adduced at the hearing could be a basis for a finding pursuant to s. 40(6) of the Code (see Adams v. Bata Retail (1988), unreported [reported 1988 CanLII 8868 (ON HRT), 10 C.H.R.R. D/5954] — decision of P. Mercer and Pattison v. Board of Commissioners of Police for the Town of Fort Frances (1987), unreported [reported 1987 CanLII 8553 (ON HRT), 8 C.H.R.R. D/3884] — decision of D. Baum).

19The Commission stated that evidence regarding the complainant's actions could predate the appointment of a Board of Inquiry and the question of undue hardship could also predate the Board of Inquiry; however, the Commission's responsibility could only begin from the time of the Board's appointment and that legal costs were the only costs that could be considered pursuant to s. 40(6).

20Mr. Waldmann, counsel for the respondents D. Wyles and D. Groom, argued that the Board of Inquiry must exercise its discretion to fulfill and not frustrate the Code. Further, referring to Liquor Control Board of Ontario v. Karumanchiri (1988), 1988 CanLII 8926 (ON HCJDC), 9 C.H.R.R. D/4868, Mr. Waldmann argued that s. 40(1) was different than s. 40(6) and that the latter section provides for an award of costs. Mr. Waldmann also argued that the Commission's position that the Board of Inquiry could review the complainant's conduct prior to the appointment of the Board but not the Commission's is untenable (Vol. 19, pp. 131–32). Mr. Waldmann referred to Re Lang Michener and Fabian(1987), 1987 CanLII 172 (ON HCJ), 59 O.R. (2d) 353 for the proposition that the entire history of an action must be reviewed (p. 358).

21Ms. Thomson, counsel for the respondents, Board of Education and R. Dodds, argued that the Commission's view, that only the time period since the appointment of the Board of Inquiry was relevant for a decision on costs, was not borne out by s. 40(6) or logic. Ms. Thomson argued that the totality of events must be considered where costs under s. 40(6) are decided (Vol. 20, p. 6). It was her argument that nothing in s. 40(6), " . . . would allow the Commission to divorce themselves from Mr. Johnson's actions, and claim non-liability for costs" (Vol. 20, p. 7). Further, Ms. Thomson argued that s. 40(6) contains no time period or time limit and that the behaviour of the Commission during the time the complaint was pursued can be the object of any consideration with respect to costs (Vol. 20, p. 20).

22The decision on the scope of the review was made and read into the record (Vol. 21, pp. 1–26). The decision reached is shown below, edited from the transcript.

It is my view that, based on the analysis and arguments of all counsel, the process envisioned under s. 40(6) must, in fact, predate the appointment of the first Board of Inquiry.

Firstly, in s. 40(6), there are no time limits specified, with the exception of how s. 40(6) comes into being, and that is upon dismissing a complaint. As a result the only time specified is the end of the Board of Inquiry's process, when the Board makes its finding. At that point, the Board may inquire into whether the complaint meets the test of s. 40(6)(a) or (b) of the Code.

Secondly, I do not accept the Commission's position that I can look to the question of undue hardship prior to the appointment of the first Board of Inquiry, but that I cannot look at the same period for the test of trivial, frivolous, vexatious or bad faith, which is the s. 40(6)(a) test.

Thirdly, I have difficulty accepting the proposition that a distinction can be made between the complainant and the Human Rights Commission in the matter of s. 40(6).

It was the Commission's submission that I could look at whether or not the complainant acted in a manner that was trivial, frivolous, vexatious or in bad faith in making the complaint, but that I could not look and see whether or not the Commission, in its behaviour, met the same tests. Nothing in s. 40(6), it seems to me, divorces those two parties.

In addition, s. 40(6) is, in fact, a retrospective look. Without any defined time lines except that it comes at the end of the process, and without any defined differentiation between the complainant and the Commission, it would seem to me that the retrospective view must be quite broad.

Fourthly, some distinctions were drawn between the Commission's actions under ss. 33 and 35 of the Code, where either the complaint was not to be processed toward a Board of Inquiry, which is s. 33, or s. 35, in which a Board of Inquiry is appointed.

If the complainant finds that a Board of Inquiry is not going to be appointed pursuant to s. 35, or to put it another way, if the Commission decides not to deal with the complaint under s. 33, there is a provision in the Code for the complainant to lodge an appeal to the Commission.

Once the s. 35 decision is made, that is a request is made to have a Board of Inquiry appointed, one must assume, at the outset, that the Commission felt that the evidence gathered through the investigation stage warranted such action.

I do not believe I have to address the question at this point, whether or not the Commission, once a Board of Inquiry is appointed, can then withdraw the complaint, or decide not to deal with the complaint.

Once the Board of Inquiry is appointed, s. 38 governs its actions regarding holding a hearing, and defining who the parties are. It is only when you get to s. 40(6) that the Board of Inquiry looks back at the complaint, upon its dismissal, to decide whether part (a) or part (b) of s. 40(6) has been met, and then it must look to see whether the Board feels that its discretion to order costs should be exercised.

Further, on the matter of the separation of the complainant from the Commission, if a Board of Inquiry were to find that the complainant lodged a complaint, which met the test of s. 40(6)(a), then I find great difficulty, and indeed, reject the suggestion that the Human Rights Commission can only be responsible after the appointment of the first Board of Inquiry.

Indeed, it could be found that the complaint, itself, met the test in s. 40(6)(a), but that the Human Rights Commission proceeded to adduce evidence in a competent manner.

The Commission's argument would have one find that, although the complaint may have met the tests of s. 40(6)(a), the Commission, itself, could not be held responsible, because its conduct at the hearing did not meet the tests.

That separation, it seems to me, is not in the Code, and in terms of straight logic, I find that I cannot accept it.

I have reviewed the cases submitted to me, and find in those cases support for the position I am taking, and that is that my scope of review is broad, and can predate the first Board of Inquiry appointment.

In the Tomen case, supra, the question was a matter of s. 35, and whether or not the respondents had an opportunity of registering a complaint about what the Human Rights Commission was about to do, and that is appoint a Board of Inquiry. Mr. Waldmann is on the record as saying that the respondents, in the instant case, did complain, but in any event, s. 40(6), which is the section of the Code with which we are now dealing, is a cost article and different than s. 35.

Section 40(6) is an article which looks at a very particular set of circumstances, and I can find no authority in that article for what would essentially be a quashing of the Human Rights Commission's decision to appoint a Board of Inquiry.

It seems to me the Tomen case really looks at s. 35. It does not look at s. 40(6) and I do not believe it necessarily helps us in that particular way.

In the Sinclair v. Peel case, supra, the question as reported in the typed excerpt that we received, deals with the starting of a particular case, that is, whether or not a hearing should be held, rather than s. 40(6), which is after the hearing has been held, and the complaint is dismissed. I believe that the Peel case referred to a prospective look, not the retrospective look that we are now dealing with in the matter of costs.

The Harjit Singh case, supra, also looks at ss. 35 and 33, and once again, I find that there is a distinction between that and the instant situation.

An excerpt from the Re Goodin & General Motors, submitted in transcript form, stands, it seems to me, for the proposition that the Human Rights Commission may proceed to a Board of Inquiry, but that Board of Inquiry may, in fact, find that the Commission:

"May be mistaken in deciding that a complaint should go forward," (p. 69), and the remedy is found in s. 40(6).

That is exactly the situation in which we find ourselves now, and as a result, one looks backward to see whether or not the tests in s. 40(6) have been met.

The LCBO v. Karumanchiri case, supra, comes somewhat closer to the instant situation only in the sense that it deals with s. 40. However, in that case, s. 40(1) is the main target of the Board of Inquiry comments, and in my view, s. 40(1) and s. 40(6) can be differentiated. In the Karumanchiri case s. 40(1) refers to the order that a Board of Inquiry may make, and there is a limit placed on the Board of Inquiry, should the Board direct restitution, and that limit is set forth as ten thousand dollars ($10,000) for mental anguish.

No such limitation is found in s. 40(6) and it seems to me that the comments in the Karumanchiri case, being directed specifically to s. 40(1), do not apply when you get to s. 40(6), since first of all, dollar limits are not applicable to s. 40(6), since no dollar limits are mentioned in that section.

As well, the Board of Inquiry is given rather wide discretion, discretion not only in whether costs should be awarded, but discretion in the quantum of costs which are fixed by the Board of Inquiry.

The three cases that, in my opinion, bear most directly on the decision of scope of review are: Re Sam Nimako v. Canadian National Hotels(1987), 1987 CanLII 8551 (ON HRT), 8 C.H.R.R. D/3985; Re Lana N. Pham v. Beach Industries Ltd.(1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 and Re R.B. Adams, supra.

In the Nimako case, it was noted that the Board of Inquiry took up the question of costs without any prompting from the respondents. Indeed, it states in that case, that the respondents made no submission on costs, but the Board of Inquiry decided to look at the matter itself (p. D/4007, para. 31709).

Referring to the Pham case, it was the Commission's position in the instant hearing, put forward by Ms. Cornish, that the Human Rights Commission had not put forward the argument to the Board of Inquiry in the Pham case that it is now putting forward.

While I accept that, I have no idea, after reading the Pham case, whether the Human Rights Commission was not afforded the opportunity, or whether it chose not to argue as it has before me.

However, the Commission has put forward its position in the instant case, and I would say that there is nothing in s. 40(6) that would require a Board of Inquiry to ask the Commission for its particular position, and I say that based both on the Pham and Nimako cases. In the Nimako case, the Board, in fact, initiated the discussion on costs.

As well, s. 40(6), when read, indicates that the Board, upon dismissing the complaint, looks at subsections (a) and (b) of the section. It does not say, "if the respondents ask it to;" it does not say, "if the respondents ask it to, and subject to the Human Rights Commission's position."

Now, in both the Pham case and the Adams case, and indeed, I suppose I should add the Nimako case, the Board of Inquiry found that some element of the Commission's review was wanting.

In the Adams case, the Board of Inquiry found that the investigator did less than a complete job.

In the Pham case, the Board of Inquiry went further, and found that there was some irresponsibility in the Commission pursuing the complaint and the Board awarded costs to the respondent.

It seems to me, therefore, that there is no question that the Board of Inquiry can initiate its own investigation, or the respondents can ask it to, but further, a reading of those three cases demonstrates that at some point in time evidence was received from the investigating officer.

In reading the cases, it would appear that the investigating officer's evidence was adduced in the normal course of the hearing, and was not specifically done pursuant to s. 40(6).

However, I do not believe that is the important distinction. The issue really is that the investigating officer provided some evidence, and that led either the respondents or in the Nimako case, the Board of Inquiry to consider a s. 40(6) action.

If the investigating officer, in those cases, provided evidence, how can I be asked not to look at the investigation stage? I appreciate that in this case, the evidence did not get to the point where the Commission, perhaps, would have called the investigating officer. I am not stating that, that should be done, or would have been done, but we simply did not get that far.

The Pham, Nimako and Adams cases heard evidence from the investigating officer and in part, the Boards of Inquiry based their comments on evidence heard from that source.

As a result, I find that s. 40(6) does not specify a time frame for the awarding of costs. In addition, I find that s. 40(6) is quite different from ss. 33 and 35, and that, indeed, I am not sitting in judicial review to find that the decision made by the Commission was correct, or incorrect, and if incorrect, should be overturned, rather I am deciding on the issue of costs.

As a result, if I find that the Human Rights Commission's decision and/or the complaint falls within parts (a) or (b) of s. 40(6), I, as a Board of Inquiry, may exercise my discretion to award such costs as I may fix.

Finally, there is no differentiation either in s. 40(6) or indeed, in the cases given to me that would prevent me from looking at the investigation stage, or, at least, the stage prior to the appointment of the first Board of Inquiry, which is the way it has been framed by counsel.

23At the hearing dated June 8, 1989 (Vol. 22), counsel for the Commission, Ms. Cornish, requested that the hearing adjourn since she had received instructions to enter into settlement negotiations with the respondents. The Board of Inquiry therefore adjourned pending the outcome of those discussions. The hearing reconvened on June 20, 1989 (Vol. 23), and once again, there was a request for adjournment to continue settlement discussions. An adjournment was granted with a time limit imposed and the hearing reconvened on June 21, 1989 (Vol. 24). At the hearing dated June 21, 1989, the Board of Inquiry was advised by Ms. Cornish, counsel for the Commission, that the Commission had entered into a settlement with the Board of Education, subject to ratification by both parties. Also at the hearing on June 21, 1989, an interim decision was given to the parties concerning the evidence which would be adduced in the course of the hearing into the matter of costs. That decision is as follows:

During the hearing held June 5, 1989 concerning the application of s. 40(6) of the Human Rights Code of Ontario (Code), the Board of Inquiry was asked to provide counsel for the Commission with guidelines with respect to: (1) the use to which the transcript can be put during the hearing on costs and (2) what restrictions are to be placed on evidence adduced by the Commission so that there would be no offence to the fact that the complaint has been dismissed.

Section 40(6) is as follows:

(6) Where, upon dismissing a complaint, the board of inquiry finds that,

(a) the complaint was trivial, frivolous, vexatious or made in bad faith; or

(b) in the particular circumstances undue hardship was caused to the person complained against,

the board of inquiry may order the Commission to pay to the person complained against such costs as are fixed by the board.

A review of the transcript of the hearing held March 16, 1989, reveals that counsel for the Commission and the respondents agreed that there was no evidence before the Board of Inquiry to substantiate the complaint (Transcript Vol. XVIII, pp. 40–57). Accordingly, the complaint was dismissed. Following the dismissal, the respondents stated that they wished to address the matter of costs pursuant to s. 40(6) of the Code. Hearings were held May 1 and 2, 1989 and the Board of Inquiry was asked to rule on the following matters: the submission of the quantum of costs, the scope for review pursuant to s. 40(6) and submission of particulars. That decision was read into the record at the hearing held June 5, 1989. The decision on the scope of review led to the present request. I ruled that the scope of review included the period prior to the appointment of the first Board of Inquiry. The question was then raised about the use to which the transcript could be put. The transcript is not evidence, in law, because the respondents did not have the opportunity to cross-examine the complainant about his testimony. Two positions have been put forward by the respondents: (1) that since there is no evidence in law, the complaint must be trivial, frivolous or vexatious or (2) that the transcript will serve as an indication that the complaint was trivial, frivolous, vexatious or made in bad faith. Counsel for the Commission also put two positions forward: (1) that the respondents had to demonstrate that the complaint was trivial, frivolous, vexatious or made in bad faith and if the respondents did not disprove the statements made in the transcript, they were therefore true and could be used to show that the complaint was not trivial, frivolous, vexatious or made in bad faith, or (2) that if the respondents could use the transcript to attempt to show that the complaint was not trivial, frivolous, vexatious or made in bad faith, the Commission should have the opportunity to disprove this by evidence which would show the validity of the complaint. I indicated at the hearing, June 5, 1989, that the transcript was available to all parties to use as a reference and that each was free to argue that inferences (positive or negative) should be drawn as each party presented its arguments pursuant to s. 40(6). Upon reflection, I reach the same conclusion — that is, the transcript is a record of the complainant's answers to questions posed by the Commission during examination in-chief and is available to all parties. It cannot serve to demonstrate the truth or lack of truth of the complainant's answers. In my opinion therefore, the transcript cannot be used to prove the substance of the complaint. In addition, it is my opinion that the respondents are not required to disprove statements contained in the transcript. The Commission and respondents can refer to any part(s) of the transcript as support for their positions on matters pursuant to s. 40(6) of the Code.

The second question is whether there is a restriction on evidence the Commission may adduce in connection with s. 40(6) of the Code in the instant case. It was agreed at the hearing March 5, 1989 that the question of onus would be left to final argument. The central issue is whether the Commission can call evidence to substantiate its claim that the complaint was not trivial, frivolous, vexatious or made in bad faith, or put another way, that the complaint was valid. Counsel for the Commission put forward the position that if the respondents could use the transcript as part of their case that the complaint was trivial, frivolous, vexatious or made in bad faith, the Commission had to be allowed to answer that case by calling evidence to show that the complaint was valid. This position, taken to its full conclusion, suggests that the Commission could call evidence to prove the complaint after having the opportunity to present its case through the complainant and when his testimony halted, chose not to call additional evidence. It was clear from the submission by counsel for the Commission that its intention in calling such evidence would not be for the purpose of proving the substance of the complaint, rather it would be to show that the complaint was not trivial, frivolous, vexatious or made in bad faith. However, it is my respectful opinion that the Commission cannot put evidence forward now, under a different guise, which it could have put forward prior to the dismissal of the complaint. This is not a case in which the Commission had no opportunity to adduce evidence in support of its case, rather it elected, as did the complainant, not to proceed. The complaint has been dismissed because in law there was no evidence to substantiate it. One party cannot now attempt to prove its validity, even if for a different purpose.

Section 40(6) of the Code contains four parts: first there must be a dismissal of the complaint; second there is the possibility of a finding that, "(a) the complaint was trivial, frivolous, vexatious or made in bad faith;" third there is the possibility that, "(b) in the particular circumstances undue hardship was caused to the person complained against," and fourth, there is the Board of Inquiry's discretion to award costs. In the instant case there has been a dismissal. This directs attention first to part (a) of the section. A review of the cases submitted by the parties reveals that the cases ran their full course, that is, the complainants and respondents each adduced evidence in support of their positions, and there was an opportunity for cross-examination. At the end of the cases, the Boards of Inquiry reviewed the evidence to see if the conditions in s. 40(6)(a) were met — see for example: Nimako v. Canadian National Hotels(1987), 1987 CanLII 8551 (ON HRT), 8 C.H.R.R. D/3985 (Hubbard) and Lana N. Pham v. Beach Industries Ltd.(1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 (Hubbard). In the instant case only one witness was called and his evidence halted without cross-examination. The Commission chose not to call any other witnesses to give evidence and the complainant was given the opportunity to call other witnesses to give evidence and elected not to do so. As a result, with no evidence in law to support the complaint, it could be argued that the complaint meets at least one of the conditions of s. 40(6)(a), a position which was put forward by the respondents (see for example, Transcript Vol. XVIII, p. 51, lines 10–11; p. 63, line 30 and p. 64, lines 1–2). There are in fact four sections in part (a) of s. 40(6), which can be divided into two main groups. The first is trivial, frivolous and vexatious and the second is in bad faith. A definition of each of the first three terms according to Black's Law Dictionary, Fifth Edition, 1979 is as follows:

Trivial: Trifling, inconsiderable; of small worth or importance. In equity, a demurrer will lie to a bill on the ground of the triviality of the matter in dispute, as being below the dignity of the court.

Frivolous: of little weight or importance. A pleading is "frivolous" when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent. Frivolous pleadings may be amended to proper form or ordered stricken, under federal and state Rules of Civil Procedure.

Vexatious: without reasonable or probable cause or excuse.

It was indicated by one of the respondents that vexatious may be the most appropriate term given that there is no evidence in law to support the complaint. (See Transcript Vol. XVIII, p. 64, lines 5–11.) In my opinion, the question of whether the complaint should be judged trivial, vexatious or frivolous is a matter of argument. What is clear is that the Commission (and the complainant) had the opportunity to bring evidence forward to substantiate the complaint and elected not to do so. Neither of these two parties can be given the opportunity now, to bring that evidence forward to show that the complaint is non trivial, non frivolous or non vexatious.

The issue of bad faith, although contained in s. 40(6)(a) with the above terms has a somewhat different application. In Re Nimako the Board of Inquiry stated at D/4007 para. 31710:

The circumstances of this complaint as understood and alleged by the Commission were certainly not trivial, frivolous or vexatious and, although the complainant may have acted in bad faith in securing its support, the Commission did not act in bad faith in giving it.

The instant case can be approached in the same manner as that indicated in Re Nimako. As indicated, it will be a matter of argument whether the complaint should be found trivial, frivolous or vexatious. The argument can be based on (inter alia): (1) the lack of evidence in law, (2) the transcript and (3) the behaviour of the complainant and the Commission in proceeding with the complaint. If the complaint is found to be vexatious and/or trivial and/or frivolous, what must be decided is: (1) whether that in itself should lead to the exercise of the discretion in the matter of costs and (2) whether the Commission acted in bad faith in giving its support to the complaint which itself may have been made in bad faith (both of which could lead to the exercise of the discretion pursuant to s. 40(6) of the Code). It may not be possible to prove that the complainant acted in bad faith (although it may be argued that the behaviour of the complainant is an indicator); however, that may not be necessary. Section 40(6) directs that if costs are awarded, the Commission is responsible. As a result, regardless of whether the complainant acted in bad faith, the Commission may be required to show that it did not act in bad faith when it supported the complaint and proceeded with a Board of Inquiry — see Re Nimako, supra. The evidence the Commission is permitted to introduce therefore, is not evidence which goes to the substance of the complaint, rather the evidence goes to the behaviour of the complainant and the administrative process that led the Commission to follow s. 35 of the Code, request a Board of Inquiry and proceed with its case. It is therefore the completeness of the investigation which is the subject of the evidence, which can be used to demonstrate whether the Commission acted appropriately in supporting the complaint. This is not a review of the Commission's decision pursuant to s. 33 or 35 of the Code with a view to uphold or quash that decision, rather it is a review to see whether the complaint should be judged as trivial, frivolous, vexatious or made in bad faith, whether the Commission acted in bad faith and if one or more of these conditions have been met, whether the Commission should be ordered to pay costs, that is, whether the Board of Inquiry should exercise its discretion pursuant to s. 40(6) of the Code.

Part (b) of s. 40(6) poses a separate question, that of undue versus due hardship. Evidence to prove or disprove that issue does not, in my opinion, pose the same dilemma as the evidence necessary in part (a) of the section. I do not believe any guidance need be given as a result.

Finally, the question of whether the Board of Inquiry should exercise its discretion pursuant to s. 40(6) will be a matter of argument.

24At the hearing dated October 26, 1989 (Vol. 27), counsel for the Commission, Ms. Cornish, submitted a statement which became Exhibit 90 to these proceedings and read that statement into the transcript at pp. 5–19. That statement was as follows:

STATEMENT TO THE BOARD OF INQUIRY ON OCTOBER 26, 1989 BY COUNSEL FOR THE COMMISSION

I am pleased to advise the Board and the respondents that the Commission has instructed me to concede at the outset of the hearing today that the respondents Groom and Wyles are entitled to an order pursuant to s. 40(6)(b) of the Code with respect to the payment of their legal costs for the Board of Inquiry hearings in this matter.

The Commission has come to this position after its further review of the circumstances in these proceedings as disclosed in the record or otherwise. Keeping in mind the unusual circumstances of this case and the Commission's statutory responsibility for the carriage of the complaint pursuant to s. 38(2)(a), the Commission is prepared to concede there is sufficient evidence to warrant a finding now by this Board that the respondents were unduly disadvantaged within the meaning of s. 40(6)(b) and incurred substantial legal costs as a result.

In particular, the Commission acknowledges that the following factors resulted in this disadvantagement [sic]:

1. The conduct of the complainant during the hearing of the case, including his refusal to undertake to abide by the rules set out by the Tribunal Chair for the orderly conduct of the hearing which ultimately led to the Tribunal removing the complainant from the stand.

2. The undue lengthening of the hearing and resulting increased costs by the respondents as a result of the conduct referred to in para. (1) above.

3. The resulting prejudice to the respondents by

(a) the foreclosure of their opportunity to cross-examine the complainant;

(b) the foreclosure of their opportunity to establish their defence to the allegations; and

(c) the inability of the Board of Inquiry to render a decision on the merits of the complaint after a full hearing on the merits.

4. The difficult circumstances which faced the respondents as a result of the above-noted facts, particularly in light of the media attention which the hearing received.

Accordingly, the Commission agrees that the Board can make an order that the Commission pay the reasonable legal costs and disbursements incurred by OSSTF on behalf of the respondents Groom and Wyles for representation before the Board of Inquiry hearings in an amount the Board deems appropriate in light of the Commission's admissions as set out above. The Commission will argue that those costs should be set on a "party and party" basis.

In furtherance of its statutory mandate, although not required by s. 40(6), the Chief Commissioner has also today provided all the respondents with a letter expressing her regret concerning the disadvantagement [sic] caused to the respondents in this case. A copy of these letters is being filed with the Board at this time as part of the record of these proceedings.

The Commission expressly does not agree that the circumstances justifying an order under s. 40(6)(a) of the Code are present in this case.

Furthermore, the Commission expressly states that the Commission's acknowledgment of liability in this case under s. 40(6)(b) does not represent any general admission concerning the proper criteria for determining whether the standard of undue hardship referred to in this section or any other section of the Code has been met. Rather, the Commission's acknowledgment of liability in this case is solely an agreement that the circumstances of this case justify an order under s. 40(6)(b).

The Commission continues to take the position that there is no jurisdiction in this Board of Inquiry to make any order for compensation for damages or other costs apart from legal costs and accordingly, the Commission is not willing to consent to any order for payment of the claims of the respondents under this hearing.

As a result of the Commission's determination with respect to the requirement to compensate the respondents, the Commission has already entered into a memorandum of settlement with the respondent Board and Dodds. This settlement provides that the Commission will pay the sum of $43,672.50 representing the Board's party and party legal costs for the hearing before the Board of Inquiry. Accordingly, the respondent Board and Dodds will no longer be participating in these hearings.

Unfortunately, the respondents Groom and Wyles and the Commission have been unable to reach a settlement in this matter on their claim for costs. The Commission believes that this statement of the Commission's acknowledgment of its liability, its letter of regret and its consent to an order for costs should lead the respondents Groom and Wyles to reconsider their decision to proceed with their claim for non-legal costs and damages in this matter. The Commission believes that this non-legal costs claim is the only issue remaining before the Board at this time. Should the respondents decide to proceed with these claims, then the Commission will ask the Chair to now reconsider its decision to leave to the end of the hearing the issue of whether damages or non-legal costs are recoverable under s. 40(6) of the Code. The Chair had originally ruled that this issue could as easily be determined at the end of the hearing as opposed to the beginning of the hearing and accordingly declined to consider the matter earlier. It is our view that circumstances have now changed and a determination on this issue now will determine whether it is necessary to continue further with these hearings.

If the Chair determines that the claims for non-legal costs and damages are outside the jurisdiction of s. 40(6), then the Commission will then ask the Chair to make an order with respect to the mootness issue so it can be determined whether any further hearing is required apart from the quantum of costs to be paid.

The Commission believes any other aspects of the respondents' claims are not moot given the Commission's consent to an order for legal costs. It is our view that it would not further this Board of Inquiry's mandate to proceed any further as no practical interest could be served.

If the respondents should decide to proceed with their other claims and the Board does not uphold our mootness motion then the Commission will take the following position; that the Board should decline to order the Commission to pay for any costs of the respondents subsequent to this date relating to their other claims apart from the quantum of costs and to further reduce the respondents' entitlement to costs as acknowledged above by the amount of the legal costs which are incurred by the Commission in these proceedings from this date forward to defend against those claims of the respondents.

25Also at the hearing held October 26, 1989 (Vol. 27), the memorandum of settlement between the Commission and the Board of Education and Mr. Dodds was entered as Exhibit 91 of these proceedings. That memorandum was as follows:

The Human Rights Code, 1981, S.O. 1981, c. 53, as amended.

IN THE MATTER of the appointment of a Board of Inquiry pursuant to the Human Rights Code, 1981, c. 53, as amended.

AND IN THE MATTER OF the complaint made by Ken Johnson, dated December 3, 1984, alleging discrimination in employment on the basis of race, colour, ancestry, place of origin and ethnic origin by East York Board of Education and Richard Dodds, Douglas Wyles and Douglas Groom.

MEMORANDUM OF SETTLEMENT

In view of the rare circumstances of this case, the parties hereby agree to settle the respondent Board of Education and the respondent Mr. R. Dodds' motions for costs pursuant to s. 40(6) of the Ontario Human Rights Code on the basis of the following terms:

1. That the terms of this settlement are without prejudice and without precedent and are not to be construed as any admission of liability on the part of the Ontario Human Rights Commission, which is not admitted but strictly denied.

2. The Commission will pay to the respondent Board of Education the sum of $43,672.50 for legal costs and disbursements and those of the respondent Mr. Richard Dodds.

3. The respondent Board of Education, its officers, trustees, agents and employees and Mr. Richard Dodds hereby fully release the Ontario Human Rights Commission, its officers, agents and employees of and from all claims, demands, appeals, judicial reviews and causes of action of every nature and any kind existing to the date of this release whether arising at common law, by contract or by statute, and without limiting the foregoing, from all such claims, demands, causes of action, judicial reviews and appeals arising out of the complaint filed by Ken Johnson under the Human Rights Code in 1984, and in particular any civil action relating to abuse of process, malicious prosecution or other similar claim, except any claims arising from the enforcement of the terms of this memorandum of settlement.

DATED at Toronto, this day of September 1989.

) THE BOARD OF EDUCATION

) Per:

) Per:

) "R. Dodds" (1s)

) Richard Dodds

) ONTARIO HUMAN RIGHTS

) COMMISSION

) Per: "Catherine Frazee"

) Per:

26In addition, letters were sent by the Commission to the respondents and these were entered as Exhibits 92a, 92b and 92c of these proceedings. The letters are the same; the text of each was as follows:

October 25, 1989 The context for this letter is already well known to you. It stems from a human rights complaint filed by Mr. Kenneth Johnson in December 1984 against the East York Board of Education and in particular, Mr. Richard Dodds, Mr. Douglas Wyles and Mr. Douglas Groom. Mr. Johnson's complaint alleged discrimination on the basis of race, colour, ancestry, place of origin and ethnic origin.

Once in receipt of a complaint of discrimination, the Commission, in its role as the agency charged with the task of enforcing the Human Rights Code, undertakes an objective process of fact finding, investigation and analysis. In addition, attempts are made to conciliate between the parties in an effort to resolve the dispute in an atmosphere of goodwill and mutual understanding. When no settlement can be reached, section 35 of the Code requires the Commission to decide whether there is sufficient evidence to warrant requesting the appointment of an independent Board of Inquiry. The Board hears all of the evidence and arguments of the parties, and finally determines whether a violation of the Code has occurred.

In the case of Mr. Johnson's complaint, it proved impossible for Commission staff to negotiate a settlement between the parties. Accordingly, the case was brought before the Commission for a decision under Section 35 of the Human Rights Code. Upon consideration of all submissions made by the parties as well as a review of the investigating officer's analysis and the opinion of Commission legal counsel, the Commission decided in this case to request the appointment of a Board of Inquiry.

In making such determinations, Commissioners are always mindful that the assessment of ultimate credibility issues within a complaint is properly the function of a Board of Inquiry. Moreover, while Board decisions are essential in developing jurisprudence in the field of Human Rights, it is recognized by the Commissioners that litigation is costly and time consuming for all parties and that it tends to polarize positions in adversarial relationships, the dynamics of which may be exacerbated by media attention in a public forum. However, the legislature has determined that this is the proper method for determining the validity of complaints where settlements cannot be reached and the evidence warrants a public inquiry into the issue. Allegations of racism are often complex and difficult to determine without the benefit of a hearing into the issues where all the parties can have the opportunity to put forward evidence and arguments. As you perhaps know, a Complainant is prevented from seeking redress for any violation of human rights through the civil courts and must rely on the procedures provided in the Code.

I am aware of the events and circumstances in the hearing of Mr. Johnson's complaint which led to the decision by the Chair of the Board of Inquiry to dismiss the complaint. Following fourteen days of testimony as the Commission's primary witness, Mr. Johnson's refusal to undertake to abide by the rules set out by the tribunal Chair with respect to the orderly conduct of the hearing resulted in the decision of the Chair to order Mr. Johnson from the witness stand. As you know, this led to the decision of the Board Chair that there was "no evidence in law before me to consider" in substantiation of the complaint against you.

I understand the implications of this decision, both in terms of having foreclosed the opportunity for you to cross examine Mr. Johnson, and of the inability of this Board of Inquiry to come to any conclusions on the basis of a full hearing of all the evidence regarding Mr. Johnson's allegations of discrimination. I appreciate that these difficulties were aggravated as a result of the extent of the media attention focused on this case.

I wish to express our profound regret for the difficulty which you faced as a result of the complainant's conduct during the Board of Inquiry which prevented the proper hearing and review of the issues before it. In view of the fact that you were deprived of the opportunity to establish your defense to the allegations before the Board, I further extend our regrets for the inconvenience and embarrassment you may have been caused.

With respect to your claim for costs in these proceedings, our counsel has been instructed to advise the Board of Inquiry that the Commission will agree for the record that you are entitled to compensation under s. 40(6)(b) of the Code for your reasonable legal costs for the Board of Inquiry hearings.

Yours truly,

"Catherine Frazee"

Catherine L. Frazee

27At the hearing held November 2, 1989 (Vol. 29), the Board of Inquiry indicated to the parties that upon review, an earlier ruling with respect to halting the adducing of evidence pursuant to s. 40(6) to argue the matter of the definition of costs, would not be overturned and that evidence should continue to be entered with the full argument on the matter of the definition of costs left to the end.

28At the hearing held May 23, 1990 (Vol. 31), counsel for the Commission, Ms. Cornish, indicated that the Commission had agreed that an order could be made for solicitor and client costs which in their view would be, " . . . the full reasonable legal costs incurred by the respondents Groom and Wyles, or rather, incurred . . . by OSSTF on behalf of the respondents Groom and Wyles with respect to the Board of Inquiry proceedings and the preparation for those proceedings" (Vol. 31, p. 2).

29At that time, Ms. Cornish argued that the only matter outstanding was the quantum of costs and that the Board of Inquiry could remain seized should the parties be unable to agree on that matter. Specifically, in Ms. Cornish's view, the only remaining issue was costs contained in a letter with respect to particulars and entered into these proceedings as Exhibit 69. Part of Exhibit 69 showed the following:

PARTICULARS OF QUANTUM OF COSTS REQUESTED

1. Cost of legal fees and disbursements to date rendered with respect to this matter from the laying of the complaint and to date.

2. Costs of additional legal fees and disbursements until the completion of the hearing.

3. Cost of Groom's losses due to unpromotability since Dec/84 to date: (difference between Minor Dept. Head's salary and Vice-Principal's salary).

4. Cost of Groom's loss of pay due to the hearing (110 hours @$28.00/hr).

5. Cost of Groom's unpaid time spent in preparing for hearing (300 hours @ $28.00/hr).

6. Cost of Groom's loss of reputation.

7. Cost of Groom's mental anguish (restricted to this amount by s. 40(1)(b) of the Code).

8. Cost of Wyles' loss of reputation.

9. Cost of Wyles' mental anguish (restricted to this amount by s. 40(1)(b) of the Code).

Plus legal fees and disbursements to end of the hearing.

30Mr. Waldmann objected to the procedure proposed by Ms. Cornish on behalf of the Commission and asked for a ruling by the Chair on a method of proceeding, given the Commission's recent admission. That ruling was made at the hearing dated May 23, 1990, and is found in Vol. 31 of the transcript at pp. 30–37. Indicated in that ruling was the view of the Board of Inquiry that should costs in s. 40(6) of the Code be interpreted by the Board as solicitor and client costs, there would be no need for additional evidence and the parties could be left to work out the appropriate costs with the Board of Inquiry remaining seized should a disagreement result. However, if costs in s. 40(6) were defined broadly, evidence would have to be adduced. The Board of Inquiry, after considering its earlier ruling, found that with the concession by the Commission to pay solicitor and client costs, it would be inappropriate to continue adducing evidence, leaving the argument on the meaning of costs in s. 40(6) to the end of that evidence. Ms. Cornish then proceeded to argue the matter of whether s. 40(6) can embrace anything other than legal fees and disbursements and whether that section can embrace matters and expenses that predate or are not associated with a Board of Inquiry proceedings. The Commission argued that s. 40(6) must be read in its strict legal meaning and costs that may be awarded can only refer to legal costs. In opposition, counsel for the respondents argued that the Human Rights Code must be broadly interpreted and consistent with that, the meaning of costs as found in s. 40(6) must be given a broad meaning.

31Counsel submitted numerous cases for consideration. Both counsel stated that there were no cases directly on point. The full text of the ruling is found in Vol. 33 in these proceedings and is shown below, edited from the transcript.

At the outset, let me put this in a setting, and that is on or about March 16, 1989 I dismissed the complaint of Mr. Johnson following his refusal to provide an undertaking to allow the hearing process to continue in an orderly manner.

Following that and at the hearing on October 26, 1989, the Commission filed two documents which were entered as Exhibits 90 and 92. Exhibit 90 was a statement conceding that a finding could be made pursuant to s. 40(6)(b) and Exhibit 92 consisted of letters to each of the named respondents, the East York Board of Education and Mr. Dodds, Mr. Groom and Mr. Wyles from Ms. Frazee on behalf of the Commission (see pp. 35–38 and 40–42, supra).

It is also clear that part of the setting is the very deeply-held feeling by the respondents, through their counsel, Mr. Waldmann, that the Commission has in fact made an error, or done something wrong. And this is reported in Vol. XXVIII of the proceedings, which was the hearing of October 31, 1989, at p. 4, the last paragraph, beginning at line 20. Although I do not have to read the entire paragraph, it simply says that Exhibit 90, supra, does not say that the Commission did anything wrong.

Following that, we entered into the current dispute, which is the one involving the costs under s. 40(6), and a review of the transcripts reveals discussion with respect to both 40(6)(a) and (b) and the Commission's admission that Article 40(6)(b) in fact was involved, that there was a liability admitted in that respect and that discretion in the matter of costs should be exercised.

The Code itself also forms part of the setting for the argument with respect to costs. As noted by Mr. Waldmann in his argument, the preamble to the Code is different than that in the Canadian Human Rights Act. It mentions the recognition of "the dignity and worth of every person." And this must refer to every person, whether or not that individual is a complainant or a respondent.

In addition, of the cases that were submitted to the Board as part of the argument on costs (Re Ontario Human Rights Commission and Theresa O'Malley et al., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, Re Bonnie Robichaud and Canadian Human Rights Commission v. Her Majesty the Queen (1987), 1987 CanLII 73 (SCC), 8 C.H.R.R. D/4326, and Re Piazza et al. and Airport Taxicab (Malton) Association et al. (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281), all comment on the need to interpret the Code's language in a broad fashion.

As a result, I start my decision from the point of view that the complaint is dismissed, the respondents feel particularly aggrieved that there has been no finding or admission of wrongdoing on the part of the Commission, and that as the Code is read, a liberal and broad interpretation should be placed on the various words contained in it.

Two issues were put before me. First, the meaning of the phrase found in Article 40(6), which is: "such costs as are fixed by the Board." The second issue was the time frame over which such costs may legitimately be claimed, and therefore, fixed.

At the outset, both counsel agreed that there were no cases directly on point. Cases submitted indicated that costs were awarded. For example, the Pham decision, supra, and the Re Darlene Ouimette v. Lily Cups et al., unreported, (1990) [reported 12 C.H.R.R. D/4868 (Ont. Div.Ct.)] (D.J. Baum), but in each of those cases there is no indication that Article 40(6) was ever debated before the Board of Inquiry.

In the Lily Cups case, Dr. Baum stated at p. 40, and I quote:

The Respondents have asked for an award as to costs on a solicitor-client basis.

In the Pham decision, the Board of Inquiry does not make specific references to the respondents asking for a particular remedy. It is clear, however, that no debate on the meaning of costs was reported in either case.

The court decisions that were submitted to me for review, such as: Re Bell Canada and Consumers Association et al., 1986 CanLII 49 (SCC), [1986] 1 S.C.R. 190 [16 Admin. L.R. 205], were helpful in the sense that they set out the differences between the courts and administrative tribunals in the matter of costs. However, with respect to a comparison with cases before the courts, it is my respectful opinion that human rights litigation has a rather special nature to it. And that special nature is based both on the purpose, as outlined in the preamble of the Code, and the style of proceedings under the Code.

As indicated by both counsel, and as confirmed in the various court decisions, the Board of Inquiry must take its jurisdiction from the Code, and it is to that I must turn as I try and define what s. 40(6) means in the matter of costs.

I start with s. 35 of the Code, and I have looked at ss. 35, 36, 38 and 40. Section 35 provides the authority for the Commission to decide if a complaint will be carried to the next step, which is to ask the Minister to appoint a Board of Inquiry, or whether the Commission at that point would request no Board of Inquiry.

Section 36 indicates that if the complainant was not satisfied with the Commission's decision, specifically not to request the appointment of a Board of Inquiry, the complainant can ask for a review of that decision. Nowhere in ss. 35 and 36 do I find an indication that a respondent, finding that a complaint has been dismissed, or to put it another way, that a Board of Inquiry has not been appointed, can then recover any kind of costs.

Section 35 would apparently come at the end of an investigation phase and at the end of an attempt to settle, but as indicated, none of the language of s. 35 or 36 speaks to costs or damages.

The next s. 37 then deals with what happens when a Board of Inquiry is appointed. And s. 38 speaks to the authority and jurisdiction of a Board of Inquiry and is divided into two main parts, although there are five actual parts in the Code.

The two main parts are the authority to determine if the Code has been infringed upon, and then to make an appropriate order, and that order fails [sic] within s. 40.

Section 38 states in part:

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 infringed the right; and

(c) to decide upon an appropriate order under section 40,

Section 38 does not specifically empower a board of inquiry to look back into the investigation process, but rather directs it to hold a hearing, make a finding and then decide on an appropriate order. As a result, one then must turn to s. 40 to find out what decisions a board can make.

Section 40 . . . although it has seven actual sections to it, I am only concerned with s. 1 and s. 6.

Section 40(1) states:

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; and

(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in willfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

1981, c. 53, s. 40(1)

Section 40(1) speaks to the complainant and indicates firstly that if an infringement is found, then the Board can order two separate items. Part (a) is a direction to a party to do something, and that is not the issue in front of the instant Board.

Part (b) is of interest in the matter before me, and in my view, part (b) is very clear. Part (b) allows the Board of Inquiry to direct a party to make restitution for a loss which arose from the infringement. Secondly, if the infringement was willful or reckless, it can make a monetary compensation award to a maximum of $10,000 for mental anguish.

In my view, that is a very clear statement and would indicate that even with the most egregious infringement, the most willful or reckless infringement, the maximum amount that a Board could award in the matter of mental anguish would be $10,000. That section, I think, is very important as I look forward to s. 40(6).

Section 40(6) speaks only to the respondent. I note that the side title, or the heading in the margin, of the Code is simply, "Costs." However, in looking at s. 40(6), I can see five different items. First, the complaint must be dismissed, and it was in the instant case.

Secondly, the Board of Inquiry, after it dismisses the complaint, can find under part (a) that the complaint "was trivial, frivolous, vexatious or made in bad faith."

Thirdly, under part (b) the Board may find that, "in the particular circumstances undue hardship was caused to the person complained against" — that is, the respondent.

It was noted earlier in these proceedings that a finding did not have to [be] made under both part (a) and part (b), indeed, a finding could be made under only one of those sections in order for the next part . . . the fourth part of 40(6) to come into play, and that is the Board of Inquiry has discretion to order payment.

Finally, the phrase that is the subject matter of this decision: if the Board of Inquiry finds that it should exercise discretion, it then faces, "such costs as are fixed by the board."

Now, both counsel yesterday and the day before provided me with argument as to their interpretation, and in brief, their argument is as follows.

From the Commission's point of view, s. 40(6) must be read in its strict legal meaning, such that no matter how egregious the situation, or to put it another way, not [sic] matter how trivial, how frivolous, how vexatious, or how much a complaint is in bad faith, or indeed, how large an undue hardship has been caused, the most that one could award, if the discretion were exercised, is the legal costs.

In my view, counsel for the Commission indicated there was some flexibility since there was mention both in the argument and in the offers from the Commission to the current respondents of party-and-party costs, and now most recently, in the circumstances of the instant case, solicitor-and-client costs (Vol. 31, pp. 1–2).

The argument from the respondents in brief is that in keeping with the language of the Code and the way it has been interpreted, that is, very broadly and quite liberally, that in cases of the sort currently in front of the instant Board of Inquiry, that is, where in the view of the respondents there is a substantial undue hardship, and that the case was an egregious one in terms of s. (a) of 40(6), that the most liberal interpretation of costs is necessary.

Both parties supported their notion of costs with, aside from the case law, dictionary definitions. The distance between the parties really is a liberal definition, versus a very restrictive definition of costs.

Now, in looking at how I wish to define this particular matter, I have raised two main questions in the matter of costs, then I have looked at the time frame, and then I will come back to the one other argument of Mr. Waldmann's, and that is the question of multiple hearings.

First of all the question, are costs, as outlined in s. 40(6), to be taken in the strict legal definition? My answer to that is no.

I take note of the quote from Craies On Statute Interpretation [Craies on Statute Law] at p. 92 in which one should take the plain meaning of the words of a statute as put forward. But in the first instance, in looking at the Code, the phrase used is, "such costs," and in this particular statute, the word, "such," has been put in as a modifier. Without that, it is my opinion that a much more restrictive or restricted meaning of costs would have great strength.

The second matter, which leads me to a more liberal interpretation than the strict legal definition, is the second phrase, and that is, "as are fixed by the board." At first reading, this might indicate a very liberal interpretation, although it could be argued that it has a restricted interpretation.

The phrase, "as are fixed by the board," could mean, as I think the Lily Cups decision, supra, indicates, that where one party asks for solicitor-and-client, another party asks for party-and-party costs, the Board could choose solicitor-and-client and, therefore, exercise a discretion between two particular views of the matter of costs.

On the other hand, it might be argued that the phrase, "as are fixed by the board" allows the Board not only to define costs broadly but then to fix the level or quantum which, in the opinion of the Board, appears just in the circumstances.

Now, in terms of "such costs" versus "costs," the Bell Canada case (Re Bell Canada v. Consumers' Association of Canada(1986), 16 Admin. L.R. 205 [1 S.C.R. 190]), was instructive in this matter. I note in that case that the particular statute, which was the National Transportation Act, particularly s. 73, had no modifier to the word, "costs." At p. 222 of that award, the relevant portion of the Act is set forward.

In addition, s. 43 of the National Transportation Act indicates that costs include fees, counsel fees and expenses. Therefore, that Act is different than the Code in which "costs" is modified by the word, "such." Secondly, there is nothing in the Code like s. 43 which defines what costs are supposed to be.

A second case, Re Regional Municipality of Hamilton-Wentworth and Hamilton-Wentworth Save the Valley Committee, Inc. et al.(1985), 1985 CanLII 1957 (ON HCJ), 51 O.R. (2d) 23, indicates at p. 41 of the decision that costs in a statute must get its "ordinary legal meaning."

As a result, in the National Transportation Act, as reported in the Bell Canada case, the legal meaning was very clear and set forth in the statute. In the Ontario Human Rights Code there is no elaboration of the meaning as there was in the National Transportation Act.

A number of cases submitted spoke to the question of whether or not administrative tribunals and courts should approach the matter of costs differently, and the answer seemed to be in the affirmative. In the Bell Canada case, even though the costs were well laid out in the various Acts, nonetheless, the tribunal was allowed more flexibility than a court would normally have in paying the legal fees of someone who is on salary.

In Re Meyer Feldman and the Law Society of Upper Canada (1989), Supreme Court of Ontario, decision of Doherty J., the individual was self-represented and was able to make a claim for costs. In Re McBeth v. Governors of Dalhousie College & University (1986), 1986 CanLII 4007 (NS CA), 26 D.L.R. (4th) 321, when the case went to appeal, self-representation was reimbursed.

The Hamilton-Wentworth case, supra, stood for the proposition that funds could not be made in advance to an intervener. This is not the case here, but it clearly indicated that there was not unfettered flexibility in the matter of costs.

A further matter with respect to the definition of costs under the Human Rights Code can be taken from the two cases in which costs in fact were awarded and some comments made.

In the Pham case, supra, the finding was that undue hardship had occurred, and in that case, the chair of the board of inquiry went beyond solicitor-and-client costs and included reasonable travel expenses of the respondents, their witnesses and their counsel.

In the Lily Cups case, supra, the finding was that the complaint was trivial and frivolous, and the board of inquiry awarded solicitor-and-client costs.

Thus, in two cases, one in which s. 40(6)(a) was involved, the Lily Cups case, solicitor-and-client costs were awarded, and in the second, the Pham case, where undue hardship was involved, s. 40(6)(b) some additional costs were awarded over and above solicitor-and-client costs.

In my view, the somewhat broader meaning of the word, "costs," receives support from the Pham case but also receives support from cases in which a broad reading of the statute is urged, such as: Re Theresa O'Malley and Simpsons-Sears Ltd. and Canadian Human Rights Commission et al., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 [7 C.H.R.R. D/3102], Re Action travail des femmes v. Canadian National Railway Company et al. (1987), 1987 CanLII 109 (SCC), 8 C.H.R.R. D/4210; Re Piazza, supra, and Re Robichaud, supra.

As a result, I come to the conclusion that the phrase, "such costs as are fixed by the board," must be seen in a broader context than their strict legal meaning, as one would expect in a court.

Having found that, I have to turn to a second question and ask if it is not the strict legal definition, then what is the meaning of "such costs"? First of all, as I think all parties agreed before me, damages are not costs.

This received support in the Pham case at para. 31809, which says, in part:

While the provision of an award of costs is not an award of damages in respect of injuries caused through the pursuit of a complaint, and while many exonerated respondents may well suffer similar injuries for which they may recover nothing, the fact of injury caused by false allegations made in bad faith is surely relevant in determining whether to exercise the discretion in question.

In the Bell Canada case, at p. 223, there is a quotation from another case, Re Ryan v. McGregor(1925), 1925 CanLII 460 (ON SCAD), 58 O.L.R. 213 in which Middleton J.A. states:

Costs as between party and party are given by the law as an indemnity to the person entitled to them; they are not imposed as a punishment on the party who pays them, nor given as a bonus to the party who receives them.

I also note that in the definition provided by counsel for the Commission, damages are defined as a compensation or indemnity for someone who has suffered loss, whether to his person . . . and that damages can be compensatory or punitive. I also note that in the definition that Mr. Waldmann provided on the matter of costs, which he took from the Oxford Dictionary, that same Oxford Dictionary defines damages as, "a sum of money claimed or adjudged in compensation for loss or injury" and that damages is also defined as, "injure so as to diminish value, detract from reputation of a person, etc."

In my opinion, therefore, damages cannot be included in costs.

Turning to the Ontario Human Rights Code, there is a section which speaks to damages, s. 40(1), particularly part (b), recognizes an award which cannot exceed $10,000 for mental anguish. In other words, the legislators, in framing the Code, where they wished damages to be awarded were very clear. They not only indicated damages could be awarded, but set a limit.

This received support as well from the Karumanchiri, supra, case in which the Board of Inquiry awarded costs pursuant to s. 40(1) of the Code, and the Court indicated that costs were not in that section.

By the same reasoning, I find that damages are not in s. 40(6). Section 40(6) recognizes, in my view, that in the process of a human rights matter, there may be what could be called "due hardship," because s. 40(6)(b) speaks to "undue hardship." In other words, the legislators apparently conceded that a respondent may in fact have some due hardship as a result of human rights litigation.

What must be decided, is if there is undue hardship, what does s. 40(6) provide and allow? In looking at the respondents' own submission, I note in the plain English definition, as opposed to the plain legal definition, of the matter of costs, that costs are referred to as expenditures, but also are referred to as estimates, and losses.

Both in the Funk and Wagnalls excerpt and in the Oxford excerpt, the plain meaning of costs involved expenditure but both involved estimates.

As a result, it seems to me that a more literal, or more liberal translation of "such costs" would involve expenditures and estimates of expenditures. In addition, I note that once again in the Pham decision at para. 31813, that costs outside of the traditional solicitor-and-client framework were awarded.

Almost finally, I note that the Bell Canada case, the McBeth case and the Feldman case all stand for the proposition that costs may be awarded in an administrative tribunal situation even though there were no strictly out-of-pocket expenses given that the individuals either represented themselves, [or] were on salary.

Finally, in looking at s. 40(1) and 40(6), the legislators were clear in 40(1) in limiting the amount for mental anguish, that is damages. I note that s. 40(6) has no limitation. The legislators clearly placed a limit on damages. It would not seem reasonable that if costs were to receive a restricted meaning that a limit would not have been placed on costs, or a definition made.

I reach the conclusion that a Board of Inquiry does not have an unlimited or unfettered discretion to award costs without any restraints, but rather must have some restrictions placed on it by the very language used in the Code. I will return to that in just a second, because I have to address the time frame matter, before I can really get to where I see the restraints.

In the matter of the time frame, the Board of Inquiry is appointed pursuant to s. 35. Prior to that time, no Board of Inquiry exists in any individual dispute. I therefore do not find that a Board of Inquiry would have jurisdiction in the investigative process or the settlement process, except in its decision to exercise discretion under s. 40(6) in the instant case.

Up to the point of a decision by the Commission to request the Minister to appoint a Board of Inquiry, nothing in the Human Rights Code indicates that the respondents have recourse to costs or damages under the Code and that if a Board of Inquiry was not appointed, it would seem that the respondents would have to look elsewhere for relief should they wish it.

The only way to get to s. 40(6) is to have a finding for the respondent by dismissing the complaint. The Board of Inquiry does not have control over the process before its appointment. The activities during the time before its appointment can be used, as they were in the Pham case, indeed, as I have used them, to assist a board in determining whether or not there is a finding under part (a) or part (b) of s. 40(6).

In addition, it seems to me that the activities in that process would also assist a board in deciding the quantum of costs that may be awarded. I take that from the Lily Cup decision where the Commission asked for party-and-party costs and yet the award was for solicitor-and-client costs. The time before the appointment of a board of inquiry cannot, in my view, be used to define costs, or to define them in terms of a time frame.

As a result, I come to the conclusion that the time frame must be in relation to the Board of Inquiry's proceedings.

As a result, I come to the conclusion that costs under the Human Rights Code of Ontario can be defined more broadly than the strict legal definition.

I, therefore, take the phrase, "such costs as are fixed by the board," to mean those costs which are directly associated with the proceedings before a board of inquiry pursuant to s. 35, up to and including the conclusion of the proceedings, and bearing in mind the nature of the litigation of the Human Rights Code.

Before I get to the practical meaning of that in terms of Exhibit 69, I want to address one other argument that Mr. Waldmann made, and that was that costs should be looked at in their broad form to avoid multiple hearings. In that respect he submitted Re Angle v. Minister of National Revenue (1974), 1974 CanLII 168 (SCC), 47 D.L.R. (3d) 544 for consideration.

I agree that multiple hearings are costly, time-consuming, and in some cases, very frustrating. However, I do not believe that a Board of Inquiry should overstep its jurisdiction in order to avoid a multiple hearing. If jurisdiction is given to a board by the statute, then it can be exercised to avoid a multiple hearing, but in my view, this is not such a case.

As well, I do not believe my decision in this matter will preclude the respondents from seeking remedies in other venues since I have declined jurisdiction in the matter of damages.

Now, as a practical matter, I have in front of me Exhibit 69, which provided the particulars of costs claimed by the respondents. (Note: See p. 43, supra, for the details.) My ruling indicates that Items 1 and 2 are covered by the term "such costs," and I do not believe there is any disagreement on those.

Items 6, 7, 8 and 9, which is loss of reputation and mental anguish for both Mr. Groom and Mr. Wyles, in my view are damages and do not fall within costs.

That leaves Items 3, 4 and 5, which are defined, briefly, as the cost of losses with respect to unpromotability, loss of pay and cost of unpaid time in preparation for the hearing. My ruling would mean in this case that Items 3, 4 and 5 can be considered by me and may involve the presentation of evidence to determine whether or not the amount claimed is reasonable and whether it bears a direct relationship to the Board of Inquiry proceedings. But there is no question in my mind that Items 3, 4 and 5 in the case in front of me are matters upon which I can choose to exercise my discretion, and include in the matter of such costs pursuant to s. 40(6).

Prior to finishing with this decision, let me make one other comment which is in the nature of an obiter comment. Mr. Waldmann urged that I look at para. 37676 in the Karumanchiri case, in which the Court made a plea to the LCBO to consider compensation. In that case, the Court overturned the award of the Board of Inquiry, because it had, in the Court's view, improperly placed costs within the ambit of s. 40(1).

This, in my view, is not the case here. I am prepared to award costs. I am awarding costs under s. 40(6), and the question is the exact detail of those costs.

Having said that, it is clear to me from my review of the transcripts and from Mr. Waldmann's presentation in the matter of costs at the hearing yesterday, on May 24, 1990, that Mr. Groom, perhaps also Mr. Wyles, but very clearly Mr. Groom, feels particularly aggrieved and feels very clearly that his reputation has not been fully exonerated; that the claim made against him has not been clearly publicized or dismissed; and that no apology or wrongdoing has ever been admitted or forthcoming.

I can only say that at the end of the day in these proceedings that a dismissal of the complaint will be contained in the decision; that sufficient of the recounting of the facts and arguments and interim decisions will appear in the final decision; and that will be, in my view, a public conclusion to the process in the sense that the decision will be sent to the Human Rights Commission and to the parties.

I cannot address the matter of whether or not the Commission should apologize at this point or admit wrongdoing. It has admitted liability under s. 40(6)(b) and that is as far as I can go.

32Mr. Waldmann later referred me to Re Color Cove Ltd. v. Canada Permanent Trust Co.(1986), 1986 CanLII 2672 (ON HCJ), 55 O.R. (2d) 87 as support for his view of a broad definition of costs. Ms. Cornish replied to Mr. Waldmann's submission and argued that the Mortgages Act, which was the subject matter in Re Color Cove, did not assist in the instant case. I reviewed both submissions and do not change my finding on costs, supra.

33Following discussions between the parties on May 29, 1990, it was agreed that no claim would be made for Exhibit 69, Item 3 — costs as a result of unpromotability (Vol. 34, p. 17). However, counsel for the respondents, Groom and Wyles, indicated that costs were being claimed for loss of pay due to the hearing (Exhibit 69, Item 4), and costs of unpaid time spent in preparation for hearing (Exhibit 69, Item 5). Evidence on these matters was adduced at a hearing dated May 31, 1990 (Vol. 34).

34Mr. Waldmann submitted amounts to Ms. Cornish and both counsel agreed that the total of solicitor-and-client costs was $112,529.02 (Vol. 34, pp. 2–3). Of that, $180.00 was to be deducted (Vol. 34, p. 3), for the time spent outside the Board of Inquiry proceedings. The amount of $112,529.02, as submitted by Mr. Waldmann, included the following fees and disbursement items:

DATE

AMOUNT

March 28, 1985

$ 2,030.00

July 23, 1985

$ 514.30

September 30, 1985

$ 500.00

January 28, 1986

$ 324.30

September 24, 1986

$ 750.00

TOTAL

$ 4,118.60

The Commission argued that these predated the appointment of the first Board of Inquiry, chaired by I. Springate and should not be included in costs pursuant to s. 40(6) of the Code.

35Mr. Waldmann also submitted a statement of the time spent by the respondent, D. Groom, from 1985 to 1990 (Exhibit 96). These were [sic] as follows (Note: I have added a heading to this excerpt from Exhibit 96 to clarify the list):

MR. GROOM'S LOSS OF PAY AND TIME SPENT 1985

5 weeks of intensive preparation of materials to provide to legal counsel:

Ӣ difficulties were due to the 9 year period the complaint covered, vagueness and generalities of allegations, numerous incorrect and partial accusations, mixing up of dates, years and incidents, and voluminous paper materials

Analysis of complaint

Review of materials (1975–84)

Sorting of materials by various means such as topic, summaries, chronology, etc., to best prepare for defending complaint

Estimate is of 5 hours per night weekdays and 16 hours on weekends for 5 weeks

205 Hours*

Preparation, review of materials and meetings with legal counsel to instruct as to underlying facts relating to complaint

Estimate is

30 Hours*

1986 Time in phone calls and meetings with legal counsel — 5.3 from lawyer's records 3.3 of which allocated to settlement process and balance to preparation

2 Hours*

Review and organization of materials

20 Hours*

1987 Time in phone calls and meetings with legal counsel — 8.6 hours from lawyer's records

8.6 Hours

Time in preparation for hearing which was then cancelled in summer before Springate including review of materials and summaries

40 Hours

1988 Time in phone calls and meetings with legal counsel — 15.5 hours from lawyer's records

15.5 Hours

Time in preparation for hearing including review of materials and summaries in light of particulars given by Commission (Exhibit 14) and evidence given by Johnson on September 27, 29, November 15, 17, 18, and December 1, 2, 6 and 8.

60 Hours

1989 Time in preparation for hearing including review of materials and summaries in light of evidence given by Johnson on January 17 and need for preparation of evidence on costs questions

30 Hours

Time in phone calls and meetings with legal counsel — 27.6 hours from lawyer's records

27.6 Hours

Time in preparation for particulars for costs question

5 Hours

1990 Time in phone calls and meetings with legal counsel — 3.5 from lawyer's records

3.5 Hours

Time in preparation for giving own evidence including review of materials and summaries

12 Hours

TOTAL TIME

449.2 HOURS

Correspondence received and reviewed over course of matter 113 letters sent to lawyers (copies forwarded to Groom) and 150 letters sent by my lawyers (copies were forwarded to Groom) less 10 letters which would be concerning settlement and investigation process, and each given .1 hour time value – 253 letters – 25.3 hours

25.3 Hours

NOTE: Correspondence 1987 & prior = 47 less 10 for exclusion relating to settlement and investigation = 37

Correspondence 1988 & after = 216

Extra time spent in class preparation and dealing with supply teachers due to attendance at 34 days of hearing (up to today's date) at average 2 hours each day

68 Hours*

2 days of hearing before Prof. Hovius

4 Hours*

TOTAL TIME

556.5 HOURS

Summer School rates 1987 and earlier were $28.00

Hours 1987 & prior

305.6

correspondence

3.7

TOTAL

309.3

309.3 @ $28.00

$ 8,660.40

Summer School rates 1988 and later are $32.00

Hours 1988 & later

153.6

correspondence

21.6

TOTAL

175.2

175.2 @ $32.00

$ 5,606.40

Lost 1987 Summer School teaching

110 hours @ $28.00

$ 3,080.00

TOTAL

$ 17,346.80

36The time spent related to Items 4 and 5 of Exhibit 69 in these proceedings, shown on p. 43, supra, of this decision. After discussion, it was agreed that the times shown for 1985 and 1986 (indicated by *), which total 257 hours (205 + 30 + 2 + 20), predate the appointment of the first Board of Inquiry. In addition, .4 hours of time spent of the 68 hours of correspondence was prior to 1987. Finally, the 4 hours shown as, "2 days of hearing before Prof. Hovius" was in error and should be removed.

37The Commission argued that none of the amounts shown in the table, supra, pp. 58–60, should be recoverable (Vol. 34, p. 9). The Commission conceded that the times and amounts shown were accurate reflections of Mr. Groom's time spent; however, the Commission disagreed with my ruling, supra (pp. 45–57), and believed that the costs claimed should not be recoverable pursuant to s. 40(6) of the Code. Further, the Commission argued that time spent prior to the appointment of the first Board of Inquiry was not recoverable in any event, given my ruling in which costs were to be related to Board of Inquiry proceedings.

38Mr. Groom gave evidence with respect to the time he spent and the preparations he made to get ready, as he saw it, for the Board of Inquiry hearings. Mr. Waldmann argued that the material prepared by Mr. Groom prior to the appointment of the instant Board and in connection with the Boards of Inquiry chaired by Professor Hovius and Mr. Springate would have to be recreated once a Board of Inquiry undertook to investigate the particular complaint. As a result, it was the respondent's argument that the material, and therefore the time spent in compiling the material, was relevant to a Board of Inquiry proceedings. In the main, Mr. Waldmann's argument was that materials that are compiled for an eventuality, which would be the defence of a complaint in front of a board of inquiry, form part of the costs pursuant to s. 40(6) (Vol. 34, p. 100). Ms. Cornish argued that although a board of inquiry might be appointed, at the outset of any human rights investigation, materials would be compiled so that discussions among the various parties would be productive, even if no board was ever appointed. It was Ms. Cornish's view that Mr. Groom proceeded to compile the various documents as the investigation was underway and they were not compiled in direct relation to a board of inquiry or even the possibility that a board of inquiry would be appointed.

39After a review of the evidence of Mr. Groom, the submissions of Mr. Waldmann concerning fees and disbursements, supra (p. 58), and the arguments by counsel, I have come to the conclusion that all parties must assume that in the human rights process, prior to a decision by the Commission regarding the appointment of a board of inquiry, materials will undoubtedly have to be prepared. It is my view, and ruling (see pp. 45–57, supra), that the phrase "such costs" as found in s. 40(6) could refer to all real and reasonable costs directly associated with a board of inquiry process. The instant Board of Inquiry was appointed by letter dated March 28, 1988. The Board of Inquiry chaired by Professor Hovius predated that and Mr. Springate was the first Board of Inquiry appointed. Prior to those appointments, the investigation process had been underway and it is clear from Mr. Groom's evidence that many of the documents were prepared as part of that investigation process, prior to any decision to appoint a board of inquiry. Also, the detailed accounts for 1985 and 1986 referred to at p. 58, supra, which were submitted by Mr. Waldmann in Exhibit 96 in these proceedings, refer to the investigation process, not to the Board of Inquiry. Although the materials collected and prepared, and time spent, would be useful and indeed might even be necessary at the Board of Inquiry stage, to include the preparation of all materials during the investigation phase in the scope of "such costs," pursuant to s. 40(6) would be unreasonable. It is not a certainty that such investigation will result in a board of inquiry and therefore many materials will be collected which may not be needed. If no board is appointed, there will be no opportunity to have the costs of collecting those materials considered pursuant to s. 40(6) of the Code. As a result, I find that although a liberal interpretation of the phrase "such costs" as found in s. 40(6) is reasonable, I find that the costs claimed by the respondent Mr. Groom for the preparation of materials, including his time, prior to the appointment of a board of inquiry were not associated with the board of inquiry process and should not form part of those costs. Similarly the fees and disbursements shown, supra, at p. 58 predate the appointment of the first Board of Inquiry and are not directly associated with the proceedings of a board of inquiry. A review of Exhibit 96, from which these data were extracted, demonstrates to me that they are not appropriate to include in the term "such costs" pursuant to s. 40(6) of the Code.

40As a result, Ms. Cornish and Mr. Waldmann agreed that the solicitor-and-client costs pursuant to Exhibit 96 were $112,529.02 (Vol. 34, p. 2, p. 12), less $180.00 of time for matters not connected to the Board of Inquiry. My decision is that of the net amount, $112,349.02, the amount of $4,118.60 predated the appointment, and was not directly related to the proceedings of the Board of Inquiry and is not recoverable. The net recoverable figure is therefore $108,230.42 and both counsel agreed with the calculation (Vol. 34, p. 12, line 25).

41With respect to Mr. Groom's time, the original claim was for $17,346.80. My ruling is that 261.4 hours @ $28.00/hour or $7,319.20 is not recoverable, because it occurred prior to the Board of Inquiry and was not directly associated with the proceedings of the Board of Inquiry, leaving a balance of $10,027.60 which, in my view, can be considered as costs pursuant to s. 40(6) of the Code.

42Mr. Waldmann requested that I consider awarding interest and that it could be considered as part of "such costs." Ms. Cornish argued that the Board of Inquiry is not empowered to award interest. A review of the arguments of counsel and of the Code lead me to the conclusion that an award of interest is not appropriate in this case and I thus decline to award it.

43In conclusion, the complaint of Mr. Johnson is dismissed. The respondents are awarded costs in the amount of $108,230.42 being costs on a solicitor-and-client basis, and are net of those costs which predated the appointment, and were not directly associated with the process, of a board of inquiry. Further, the respondents are awarded $10,027.60 pursuant to s. 40(6) of the Code, being those costs of Mr. Groom, directly related to the Board of Inquiry proceedings.