Aguiar v. Basonje Systems (No. 2)
1992-11-30
Ontario Board of Inquiry
Maria Aguiar
Complainant
v.
Basonje Systems and James Kan
Respondents
April 27, 1987
November 30, 1992
Before:
Ontario Board of Inquiry, A.F. Bayefsky
Comm. Decision No.:
464a
Appearances by:
Catherine Bickley, Counsel for the Complainant
Alexandra Mersereau, Counsel for the Respondent
COSTS — costs arising from human rights commission's pursuit of complaint which was trivial, frivolous, vexatious or made in bad faith — cost related to undue hardship experienced by respondent
Summary: This is a ruling on a motion for costs made by the respondents Basonje Systems and James Kan.
The Board of Inquiry dismissed the complaint earlier because of Ms. Aguiar's failure to make herself available to testify. The respondent now seeks costs, relying on s. 41(4) of the Ontario Human Rights Code, which allows costs to be awarded to a respondent when the complaint was trivial, vexatious or made in bad faith, or where undue hardship was caused to the respondent.
The Board of Inquiry finds that the complaint was not trivial or vexatious. The Board also finds that the fact that James Kan was acquitted of criminal charges arising from the same incidents as those involved in the human rights complaint does not mean that the complaint was made in bad faith.
Finally, the Board of Inquiry concludes that the respondents did not suffer undue hardship because of the complaint. It declines to award costs and the motion is dismissed.
[Ed. Note: See also (1992), 1992 CanLII 14227 (ON HRT), 19 C.H.R.R. D/413.]
Legislation Cited
Ontario
Human Rights Code, 1981, S.O. 1981, c. 53: 1
s. 4(1): 1
s. 6(2): 1
s. 6(3): 1
s. 8: 1
Human Rights Code, R.S.O. 1990, c. H.19, s. 41(4): 2
1I was appointed as a board of inquiry by the Minister of Citizenship, the Honourable Elaine Ziemba, on May 27,1992. The complaint before me was made under the Ontario Human Rights Code, 1981, [S.O. 1981, c. 53] on April 27, 1987. It concerned the issue of sexual harassment and alleged violations of ss. 4(1), 6(2), 6(3)(a), (b) and 8 of the Code.
2On September 10, 1992, the Commission requested an adjournment sine die or to a date to be named. The respondent opposed the adjournment on either basis. I decided to deny the adjournment, for reasons set out in my previous decision of September 15, 1992. In view of the Commission's position that in the absence of an adjournment it was unable to call any evidence, I ruled that the complaint was dismissed. At that time a motion for costs was made by the respondent. This was opposed by counsel for the Commission and the hearing on the issue of costs took place on September 24.
3The section of the Ontario Human Rights Code governing the issue of costs is s. 41(4) [R.S.O. 1990, c. H.19]. It states:
41(4) 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.
The respondent relied on both 41(4)(a) and (b). The complaint alleged that from the outset of the complainant's employment, the respondent asked her to "associate with him socially" and to join him in his apartment for dinner. On two occasions he asked her to accompany him to his apartment in order to pick up books or banking material and she did so. On a third occasion she accompanied him to his apartment while on a trip to the bank. The complainant alleged that during the time in his apartment, the respondent forced her to remain in the apartment, to watch a pornographic video and to be present while he masturbated. The complainant alleged that she remained on the job for another three weeks before resigning voluntarily, and during this time the respondent continued to ask her out and to come to his apartment. In total, the complainant worked for the respondent for approximately one and one-half months. These allegations are contained in the copy of the complaint form filed with the Ontario Human Rights Commission. The complainant herself did not testify.
4The respondent testified that on one or more of these occasions he was elsewhere at the time when the complainant says she accompanied him to his apartment and he had not taken her there. He apparently agreed that she had been in his apartment on the third occasion. In his words: "The reason why that [sic] she was even in my apartment at that time was that I took her to the bank . . ." He did not explain why the trip to the apartment was associated with the trip to the bank. He denied that the forcible confinement or other allegations relating to the third incident occurred. He did not comment specifically on the allegations relating to the persistent requests to accompany him to his apartment or to social activities.
5The respondent was the only witness called by his counsel to give evidence. At an earlier hearing date, the respondent's counsel argued that the respondent had been prejudiced by the five and one-half year delay in bringing this case to a hearing. The respondent testified that he could not reach witnesses who would have provided alibis with respect to some of the allegations and employees who could have testified about the respondent's and the complainant's behaviour on the job.
The Human Rights Commission called no evidence.
6While the complaint has been dismissed, and the complainant's allegations were not proved, I am unable to conclude on the basis of this limited information that the complaint was trivial, frivolous or vexatious. In fact, some of the allegations in the complaint were not specifically addressed.
7The respondent also asserted that the complaint was made in bad faith. He attempted to establish this claim by pointing to the outcome of a related criminal charge. The respondent had faced criminal charges in connection with the third incident described above. He was tried and acquitted of those criminal charges. The prosecutor himself had requested a directed verdict of acquittal. Mr. Kan testified that in his opinion, the complainant lied at trial on a number of issues, such as her age, her education and her past employment record, and that, in his opinion, these revelations resulted in the prosecutor asking for a directed acquittal. The transcript of the criminal trial was not in evidence before me.
8On the basis of this limited information, and considering further that the complaint related to incidents beyond the subject of the criminal charge and the alleged incident of forcible confinement, I am unable to find that the complaint was made in bad faith.
9With respect to the second aspect of s. 41(4)(b), namely that in the particular circumstances of this case undue hardship was caused to the respondent, the respondent made a number of claims. He stated that her allegations were publicized in newspapers. He said that as a result of her allegations becoming public knowledge, he lost his membership in a private club that was important to him for both personal and professional reasons. He said he lost business contracts. He said he and his employees wasted considerable time during the course of the human rights investigation. More recently, he had been forced to return to Canada from his current place of residence in Hong Kong in order to attend the hearing, and he had been forced to postpone for a few months commencement of a new job in Hong Kong pending the final hearing date.
10I am unable to find on the basis of this evidence that undue hardship was caused to the respondent as a result of the complaint. The adverse publicity surrounding the allegations was closely related to the criminal charges and their prosecution. It has not been established that there was any publicity given to the human rights complaint or the subsequent process. The time demanded of the respondent in the course of investigation did not appear to be inordinate. The fact that attendance at the hearing proved onerous because the respondent no longer lives or works in Ontario cannot be considered to be undue hardship. It should also be recalled that the case would have been heard, in the complainant's presence, shortly after the respondent arrived back in Canada (in early July 1992) had the respondent himself not requested and obtained an adjournment.
For all of the above reasons, the Board will make no order as to costs under s. 41(4) of the Code [R.S.O. 1990].