Gale v. Miracle Food Mart (No. 5)

1992-07-07

Ontario Board of Inquiry

Diane Gale

Complainant

and

Ontario Human Rights Commission

Commission

v.

Miracle Food Mart, a Division of Steinberg's Incorporated

and

Miracle Food Mart of Canada Limited

and

Great Atlantic & Pacific Company of Canada Limited

and

United Food Workers International Union Locals 175 and 633

Respondents

Date of Decision:

July 7, 1992

Before:

Ontario Board of Inquiry, Constance Backhouse

Comm. Decision No.:

444D

Appearances by:

Laura Trachuk, Counsel for the Complainant

Geri Sanson, Kaye Joachim and Mark Hart, Counsel for the Commission

Robin Cumine and Jim Ballard, Counsel for the Respondent Steinberg's Inc.

Daniel J. Shields, Counsel for the Respondent Great Atlantic & Pacific Co. of Canada Ltd.

Harold Caley, Counsel for the Respondent Union

JURISDICTION — loss of jurisdiction due to reasonable apprehension of bias — BOARDS OF INQUIRY/TRIBUNALS — authority to hear complaint where board/tribunal member is a party in another human rights proceeding — NATURAL JUSTICE — right to a hearing free from bias — HUMAN RIGHTS — nature and purpose of human rights legislation

Summary: The Board of Inquiry rejects a motion by the respondents to stay the proceedings on the grounds that there is a reasonable apprehension of bias in this case because the Board of Inquiry, Constance Backhouse, is herself a complainant in another case in which sex discrimination is alleged.

The Board finds that her involvement as one of 121 complainants in a human rights complaint which alleged that York University discriminated on the basis of sex when it failed to appoint Mary Jane Mossman as the Dean of Osgoode Hall Law School cannot create an apprehension of bias in this case. The Board has had no previous involvement in the specific complaint before her or with the parties involved.

In addition, the respondent and the union argue that there is a reasonable apprehension of bias because Ms. Backhouse is a feminist law teacher who has written extensively on issues of sex discrimination and been associated with a number of women's organizations.

The Board finds that none of the writings, activities or organizations cited by the respondents pertain directly to the parties to the complaint.

If general expertise with respect to human rights and feminism creates an apprehension of bias every adjudicator would have to be scrutinized routinely for any past pronouncements relating even tangentially to the matter before them. Anti-feminist perspectives would attract similar scrutiny. Only those who had remained silent on any issue related to human rights would be considered "neutral." Fair and knowledgeable adjudication of human rights matters would be hampered by such an approach.

The Board of Inquiry declines to stay the proceedings because of a reasonable apprehension of bias.

[Ed. Note: See also preliminary decisions at 1992 CanLII 14228 (ON HRT), 17 C.H.R.R. D/162, 1992 CanLII 14232 (ON HRT), 17 C.H.R.R. D/495, 1992 CanLII 14293 (ON HRT), 17 C.H.R.R. D/502 and 1992 CanLII 14237 (ON HRT), 17 C.H.R.R. D/503.]

Legislation Cited

Ontario

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

s. 4(1): 1

s. 8: 1

s. 10: 1

Human Rights Code, R.S.O. 1990, c. H.19

s. 38(2): 10

s. 43: 9

Authorities Cited

Backhouse, Constance, "Women Faculty at the University of Western Ontario: Reflections on the Employment Equity Award" (1990) 4 C.J.W.L. 36: 4

INTERIM DECISION

1This inquiry involves a complaint made by Diane Gale against Miracle Food Mart (a division of Steinberg's, Incorporated), Miracle Food Mart of Canada Ltd. and Great Atlantic & Pacific Co. of Canada Ltd. (A&P), and a complaint made by the Ontario Human Rights Commission (the "Commission") against the United Food and Commercial Workers International Union, Locals 175 and 633. Diane Gale's complaint, dated 4 November 1985 and amended 9 August 1989, alleges discrimination in employment on the basis of sex by Miracle Food Mart (a division of Steinberg's Incorporated) pursuant to ss. 4(1), 8 and 10 of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53 [now R.S.O. 1990, c. H. 19]. On 7 April 1992, pursuant to a motion of the Commission, Miracle Food Mart of Canada Limited and the Great Atlantic & Pacific Company of Canada Limited (A&P) were added as respondents. The Commission's complaint, dated 4 December 1987, alleges discrimination in employment on the basis of sex by the respondent union, pursuant to ss. 4(1) and 8 of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53. I was appointed to serve as the Chair of a board of inquiry by the Minister of Citizenship on 12 November 1991.

2This is the fourth interim decision in this matter. It relates to the respondents' motion to stay the proceedings on the basis of reasonable apprehension of bias. On 15 April 1992, counsel for A&P sent me a letter requesting a copy of the complaint in the case of Fassel v. Osgoode Hall, York University and Arthurs. This case involves an allegation of sexual discrimination in which I am a complainant. When counsel for A&P requested a copy of the complaint, I contacted counsel for the complainants. The complaint was then voluntarily disclosed to the respondents by complainants' counsel.

3The respondents argued that since I am a complainant in this similarly based complaint, it might raise reasonable apprehensions of bias should I continue to chair the current board of inquiry. I requested written submissions on this matter, all of which were filed by 22 June 1992.

4The written arguments submitted by counsel for A&P centred upon my involvement as a complainant and member of the complainants' steering committee in the Fassel case. As well, counsel referred to my authorship of an article concerning the history of sex discrimination against female faculty at the University of Western Ontario, "Women Faculty at the University of Western Ontario: Reflections on the Employment Equity Award" (1990) 4 Canadian Journal of Women and the Law 36.

5Counsel for the union went somewhat further, raising concerns about my position as a "professor of law and a feminist [who has] focused much of her energy in women's issues on topics such as sexual harassment of women, sexual discrimination of [sic] women and systemic discrimination of [sic] women in the workplace, and in society at large." Counsel for the union cited a number of my publications on legal and academic issues affecting women. He also made references to the fact that I have served with a number of voluntary organizations, mentioning specifically my membership on the Board of Directors of the Women's Education and Research Foundation, the Executive Committee of the University of Western Ontario's Caucus on Women's Issues, LEAF, the Social Planning Council and the Women's Law Association.

6The ultimate resolution of these questions will undoubtedly await full argument before, and consideration from, a higher tribunal. However, since I am required to rule at first instance, however awkward that might seem, I can offer the following brief analysis. The matters appear to be two:

i) whether it raises a reasonable apprehension of bias for an adjudicator in one human rights proceeding to be, or have been, a complainant in another human rights proceeding; and

ii) whether it raises a reasonable apprehension of bias where an adjudicator in a human rights proceeding is viewed as holding some expertise in feminist legal scholarship or is involved in feminist organizations.

I. A Complainant in Another Human Rights Proceeding

7On 28 September 1987, 121 women law students, law professors and lawyers filed a complaint under the Ontario Human Rights Code, alleging that Osgoode Hall Law School, York University, and Harry Arthurs had violated the Code. The allegations concerned the failure to appoint Mary Jane Mossman as Dean and systemic sex discrimination affecting women students and faculty. I was one of the complainants, and was elected by the complainants to serve as one member (of twelve) of its steering committee.

8In August 1989 the complainants and respondents entered into settlement negotiations which resulted in a memorandum of agreement. This agreement, which was publicly released by all parties at a press conference, commenced a number of initiatives to promote gender equality at Osgoode Hall Law School. The respondents agreed to establish an Institute for Feminist Legal Studies and to create a scholarship fund for graduate work in the area of feminist legal studies in the name of Mary Jane Mossman. Outside consultants were to be hired to examine various employment issues, and a Gender Equality Committee was to be struck internally.

9Since the release of this memorandum of agreement, the case has been designated as "inactive" at the Commission. However, to date there has been no formal settlement signed by the parties and approved by the Commission, as required under s. 43 of the Code [1990]. Nor has the complaint been withdrawn. Thus, technically speaking, this case must be classified as outstanding.

10It is a basic principle of natural justice that an adjudicator not be a complainant or respondent in the proceedings he or she is chairing. Similarly, where the adjudicator has had any prior involvement in the specific complaints before him or her, it would not be appropriate to chair an inquiry. Section 38(2) of the Code [1990] reinforces this general principle. There would also be cause for concern where any of the parties in the current case were parties to a previous complaint lodged by the adjudicator.

11None of these problems are presented in the case before us. The fact that the cases may entail similar subject matter is not sufficient to create a reasonable apprehension of bias. In my view, involvement as a party in another case under the Ontario Human Rights Code, whatever its status, ought not to constitute grounds for removal of an adjudicator who has been appointed to chair a board of inquiry in another human rights proceeding.

12While this is my view of the issue, I was concerned that the respondents' concerns over my involvement in the Osgoode Hall case might create undue delay in the continuation of these proceedings. Consequently, I notified the Chief Commissioner of the Ontario Human Rights Commission and the parties in this case, by letter sent 20 April 1992, that I was withdrawing my name from the list of complainants in the case of Fassel v. Osgoode Hall Law School, York University, and Arthurs. By letter dated 7 May 1992, Catherine Frazee, the Chief Commissioner, responded:

I am writing to acknowledge receipt of your letter dated April 20, 1992. As you are aware, this file is currently inactive at the Commission. However, I have forwarded your letter to the Director of Regional Services for appropriate action.

II. General Expertise in Feminist Scholarship and Involvement in Feminist Organizations

13It is my view that the respondents have not established a reasonable apprehension of bias through their submissions concerning my alleged expertise in feminist legal theory. Similarly, activities in academic and community groups involved with women's issues ought not to present difficulties. None of these writings, activities, or organizations pertain directly to the parties before this hearing.

14To determine otherwise would risk removing from boards of inquiry, and by logical extension other administrative tribunals and courts, all those who have written or otherwise expressed opinions on feminist matters. Adjudicators would have to be scrutinized routinely for any past pronouncements on matters relating, even tangentially, to the case before them. While in today's society, feminist perspectives seem to obtain a certain degree of visibility, it would be unfair to subject only feminist analysis to such examination. In fact, anti-feminist perspectives would attract similar investigation. The absurdity of such a ruling becomes apparent when we realize that only individuals who had restricted themselves to complete silence and inactivity on all questions relating to matters before them could be considered "neutral." The meaning of the concept of "neutrality" becomes increasingly problematic if not illusory under such constraints.

15The purpose of the Ontario Human Rights Code is to prohibit unlawful discriminatory acts which function to create divisive and harmful inequalities in our society. The chief enforcement mechanism under the Code involves administrative tribunals, which are appointed under the Code to hold inquiries into complaints of discrimination. Not surprisingly, the Minister of Citizenship frequently seeks to appoint adjudicators who hold some expertise in the field of human rights law. To permit arguments regarding the reasonable apprehension of bias to stay such proceedings because of the adjudicator's background and experience in this area would unduly hamper the fair and knowledgeable adjudication of human rights matters.

16In conclusion, in my view it would be improper to stay these proceedings in response to the respondents' arguments relating to the reasonable apprehension of bias.