Adair v. K.B. Home Insulation Ltd., 1991 CanLII 13133

Adair v. K.B. Home Insulation Ltd.

1991-07-18

Ontario Board of Inquiry

Julia Adair Complainant

v.

K. B. Home Insulation Ltd.

and

Bert Olthof

and

Joe Ruf Respondents

Date of Decision: July 18, 1991

Before: Ontario Board of Inquiry, Bernard Adell

Comm. Decision No.: 418

Appearances by: Mary F. O'Connor Kaiser, Counsel for the Complainant Geraldine R. Sanson and Wenda Woodman, Counsel for the Commission Alexandra M. Chyczij, Counsel for the Respondents

PROCEDURE — APPEALS AND JUDICIAL REVIEW — BOARDS OF INQUIRY/TRIBUNALS — request for adjournment — board/tribunal has discretion to adjourn proceedings pending judicial review — PRODUCTION OF DOCUMENTS — discovery — request for further particulars

Summary: This is a decision of a Board of Inquiry ruling on two preliminary motions made by the respondent K.B. Home Insulation, against whom Julia Adair has filed a complaint alleging that she was sexually harassed while in the respondent's employ.

The Board of Inquiry denies a motion for a stay of proceedings in order to seek judicial review because of delays which have occurred in bringing the complaint to a hearing. The Board finds that such a stay could exacerbate the delay.

The Board also denies a motion to require the Ontario Human Rights Commission to provide the full statements of witnesses and the names of all witnesses upon whom the Commission intends to rely.

However, the Board of Inquiry orders the Commission to produce within five days a more complete statement of the particulars of the conduct which is alleged to constitute sexual harassment in this case.

Cases Cited

Cedarvale Tree Service Ltd. v. Labourers' International Union of North America, Local 183, 1971 CanLII 341 (ON CA), [1971] 3 O.R. 832: 4

Salamon v. Searchers Paralegal Services (1987), 1987 CanLII 8508 (ON HRT), 8 C.H.R.R. D/4162 (Ont. Bd.Inq.): 14

Tomen v. O.T.F (No. 1) (1989), 1989 CanLII 9063 (ON HRT), 11 C.H.R.R. D/97 (Ont. Bd.Inq.): 4

Legislation Cited

Ontario

Human Rights Code, 1981, S.O. 1981, c. 53: 5, 12, 15

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

s. 8: 9, 14

s. 12(1): 7

s. 25(2): 3

ORALLY

1There are two matters with respect to which I have been asked to make a ruling. The first is an application for a stay or an adjournment of these proceedings pending an application for judicial review.

2Yesterday the respondents' counsel advised the Board and the other counsel that the respondents intended to apply for judicial review on the grounds of delay and breaches of natural justice in the pre-Board of Inquiry procedures, and today the respondents' counsel advised that the judicial review application would likely be heard in late August.

3Even if a judicial review application had already been made, s. 25(2) of the Statutory Powers Procedure Act [R.S.O. 1980, c. 484] clearly envisages that there is to be no automatic stay of proceedings on a judicial review application.

4It seems clear that the Board of Inquiry has the discretion to grant a stay where it deems that fairness and the balance of convenience requires a stay. Both the decision of the Ontario Court of Appeal in the Cedarvale case [Cedarvale Tree Service Ltd. v. Labourers' International Union of North America, Local 183, 1971 CanLII 341 (ON CA), [1971] 3 O.R. 832], and the decision of the Board of Inquiry in the Toman [sic] case [Tomen v. O.T.F. (1989), 1989 CanLII 9063 (ON HRT), 11 C.H.R.R. D/97], which were cited by counsel, among other authorities, speak of the need for expedition in administrative adjudication.

It may be true that in the earliest stages of this proceeding matters moved slowly, the proceedings took a long time, but a delay in the earlier stages of the proceedings can't be used, in my view, as an argument for more delay at this point.

5There is an expectation, as the authorities make clear, that the Board of Inquiry will proceed expeditiously. It's clear that the Human Rights Code, [1981, S.O. 1981, c. 53], by the time limits it has set, expects a board of inquiry to proceed expeditiously. So I am hereby rejecting the application for a stay or an adjournment, whatever it may be called.

6Secondly, we have an application which I take it is in two parts, an application for greater particulars of the allegations against the respondents, including the full statements made to officers of the Human Rights Commission by witnesses at the investigative stage, and also including the names of prospective witnesses. The second part of this application is an application for an adjournment in order to enable the respondents to make use of the material so supplied in the preparation of their case.

7First, the application for greater particulars. The Board of Inquiry has specific powers set out by s. 12(1) of the Statutory Powers Procedure Act to require certain matters to be introduced in evidence at a hearing.

12. (1) A tribunal may require . . . a party, by summons,

(a) to give evidence on oath or affirmation at a hearing; and

(b) to produce in evidence at a hearing documents and things specified by the tribunal.

These powers are limited to production at a hearing.

8There are numerous decisions of boards of inquiry holding that s. 12(1) does not authorize a discovery proceeding, that it doesn't extend to requiring the production of documents prior to a hearing or between the various parts of a hearing for the purposes of discovery.

9Now, with respect to the production of materials other than at a hearing, my powers, I think, are limited to the powers set out in or indicated by s. 8 of the Statutory Powers Procedure Act:

Where the good character, propriety of conduct or competence of a party is in issue in any proceedings, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

10I think it's clear that in this case the propriety of conduct of the respondents is in question, and therefore the respondents are entitled to be furnished with reasonable information of any allegations with respect thereto. Reasonable information, I think, means not only information large in quantity, but also information of sufficient precision that the respondents can have a reasonable idea of what they're going to have to address.

11I've read through the materials provided by the Commission to the respondents — the amended complaint, the case summary and an employment standards referee's decision of May 25, 1988. I think that although this material is quite extensive in quantity, it falls somewhat short of specifying precisely enough what allegations the respondents have to meet. The material gives a general idea, but not a sufficiently precise idea. There are a wide range of incidents specified. The material was presented in what I found to be a somewhat tangled and confusing manner. Someone who is more familiar than I am with the background situation might have found it less tangled and confusing, but nonetheless the material is not presented in a very precise way.

12I've considered the fact that what we have here is an allegation of sexual harassment. The Human Rights Code clearly speaks of harassment as constituting a course of conduct, not necessarily one or a few specific acts. This would, I think, make it unreasonable to expect the allegations to be limited to a very small number of precisely defined acts, but even given that harassment is defined as amounting to a course of conduct, I think the respondents are entitled to a somewhat more precise and better organized statement of the allegations against them.

13I don't think it should take the Commission very long to prepare a statement of that sort. I am going to direct that within five working days the Commission is to provide to the respondents a specific statement of those aspects of the respondents' conduct which are alleged to have constituted a course of conduct amounting to sexual harassment or otherwise amounting to a breach of the Code.

14The respondents asked for the full statements made by witnesses during the course of the investigation, and for the names of witnesses. That material I would hold to be privileged for the reasons set out in the decision of the Board of Inquiry in Salamon v. Searchers Paralegal Services [(1987), 1987 CanLII 8508 (ON HRT), 8 C.H.R.R. D/4162].

Even if it were not privileged the application for its production in my view is an attempt to require discovery, which goes beyond the limits of what I can order under s. 8 of the Statutory Powers Procedure Act.

15I realize that there are a lot of problems resulting from the lack of some equivalent to a discovery procedure under the Human Rights Code, and in fact in a study I recently prepared for the Ontario Law Reform Commission on Workplace Rights Adjudication in Ontario I dealt to some extent with this problem.

16It's not a simple problem. For example, the Alberta Labour Relations Board quite recently dealt with the argument that a discovery procedure should be created by that Board for much the same purpose which was argued for in this case. Chairman Sims of the Alberta Labour Relations Board reviews the advantages and disadvantages of a formal discovery proceeding. He concludes that it would be most unfortunate for an administrative tribunal to get embroiled in the very lengthy, complex, technical proceedings often involved in a discovery. I add that as an aside with respect to the conflicting policy considerations in this case.

17There are arguments for and against a formal discovery process, but whatever the weight of those arguments on either side, I think the authorities are quite clear that I don't have the power to order what is in effect a discovery procedure in this case.

18This gets to the second part of this request, the request for an adjournment to enable the respondents and their counsel to, in effect, digest the material that I've ordered the Commission to provide.

19Given the restricted nature of what I have directed the Commission to provide, given the already extensive familiarity of the respondents with the general thrust of the complainant's allegations, and given the fact that there is approximately a month until the next dates that we have scheduled for the resumption of this hearing, I would refuse this request for an adjournment. I think there will be ample time for the respondents' counsel in the approximately three weeks between the provision of the material that I have directed the Commission to provide and the resumption of the hearing to digest the material in question and to prepare for the resumed hearing.