A-1 Collision and Auto Service v. Hall (No. 2)

1992-08-28

Ontario Board of Inquiry

Anita Hall Complainant

v.

A-1 Collision and Auto Service and Mohammed Latif Respondents

Date of Decision: August 28, 1992

Before: Ontario Board of Inquiry, T. Brettel Dawson

Comm. File No.: 455A

Appearances by: Cathryn Pike, Counsel for the Commission S. Margot Blight, Russell Juriansz and Paul Schabas, Counsel for the Respondent Mohammed Latif

COMPLAINTS — JURISDICTION — loss of jurisdiction due to unreasonable delay in proceeding with complaint and fundamental freedoms infringed — CANADIAN CHARTER OF RIGHTS AND FREEDOMS — application of and procedural fairness in s. 7 (security of the person) — NATURAL JUSTICE — right to a fair hearing and right to rebut evidence and cross-examine witnesses — PROCEDURE — procedural fairness — delay as abuse of power

SEXUAL HARASSMENT — sexual harassment as illegal as well as socially unacceptable activity — relationship to sexual assault

HUMAN RIGHTS — nature and purpose of human rights legislation — difference between human rights proceedings and criminal proceedings — HUMAN RIGHTS COMMISSIONS — investigative procedure

Summary: This is a decision on a preliminary motion brought by Mohammed Latif to stay the proceedings because of excessive delay.

On July 16, 1985, Ann Hall filed a complaint against Mohammed Latif alleging that she was sexually harassed, subjected to sexual solicitation, and subjected to reprisals when she rejected the solicitation. The Commission decided to request appointment of a board of inquiry on March 26, 1991. Mr. Latif argues that he has been deprived of his s.7 Charter right to security of the person contrary to the principles of fundamental justice, by virtue of the delay.

Mr. Latif makes the same argument which was made successfully by the respondent in Kodellas v. Saskatchewan (Human Rights Comm.). He argues that the nature of the allegation against him gives rise to a breach of s. 7 rights because it subjects him, for an unduly long period of time, to the vexations and vicissitudes of a pending accusation of egregious personal conduct.

However, the Board of Inquiry rejects the approach adopted by the Saskatchewan Court of Appeal in Kodellas. That Court found that it was the nature of the allegation (i.e., sexual harassment and assault) which gave rise to a violation of s. 7. It was the mental anguish caused by being subject to such an accusation, and the effects of it on family and social relationships, which violated the respondent's security of the person.

The Board of Inquiry finds, however, that it is not the nature of the allegation, but rather the potential consequences or the nature of the proceedings which gives rise to a possible breach of the s. 7 right to security of the person. Since human rights legislation is remedial, focussed on remedying the victim rather than on punishing the perpetrator of discrimination, neither the potential consequences nor the proceedings can be compared usefully to proceedings and consequences under criminal law. There is a fundamental difference between criminal and quasi-criminal proceedings where a person's life, liberty and security of the person may be in jeopardy and human rights proceedings which are essentially civil in nature.

The Board finds that there are no s. 7 rights in issue here. Since it finds that there was no deprivation of security of the person, it need not consider whether any such deprivation occurred in a manner that is not in accordance with the principles of fundamental justice. However, it decides to address the arguments regarding fundamental justice which were made before it.

The Board finds that Mr. Latif would have to show actual prejudice which was caused by the delay. However, in this case the Board finds that no actual prejudice was demonstrated. The necessary witnesses are available and Mr. Latif cannot show that he is unable to mount a defence.

The Board of Inquiry dismisses the motion.

[Ed. Note: See also related decisions Hall v. A-1 Collision and Auto Service (No. 1) (1992), 1992 CanLII 14286 (ON HRT), 17 C.H.R.R. D/199 (Ont. Bd.Inq.) and Latif v. Ontario (Human Rights Comm.) (1992), 1992 CanLII 14313 (ON CTGDDC), 17 C.H.R.R. D/198 (Ont. Ct. (Gen.Div.)).]

Cases Cited

Akthar v. Canada (Min. Employment and Immigration), 1991 CanLII 13611 (FCA), [1991] 3 F.C. 32: 65

Bennett v. British Columbia (Securities Comm.) (1991), 1991 CanLII 8199 (BC SC), 82 D.L.R. (4th) 129 (B.C.S.C.): 47, 54

Canada (Treasury Board) v. Robichaud (1987), 1987 CanLII 73 (SCC), 40 D.L.R. (4th) 577, 8 C.H.R.R. D/4326 (S.C.C.): 40

Commodore Business Machines Ltd. v. Olarte (1984), 1984 CanLII 2017 (ON HCJ), 14 D.L.R. (4th) 118, 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833 (Ont. Div.Ct.): 38

Douglas v. Saskatchewan (Human Rights Comm.), 1989 CanLII 4657 (SK QB), [1990] 1 W.W.R. 455 (Sask. Q.B.): 24, 29, 62

Downes v. Canada (Min. of Employment and Immigration) (1986), 4 F.T.R. 215: 53

Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326: 34

Feldman v. Law Society of Upper Canada (December 9, 1987), (Ont. Div.Ct.) [unreported]: 56

Gale v. Miracle Food Mart (No. 2) (May 8, 1992), (Ont. Bd.Inq., Backhouse) [unreported]: 45

Ghosh v. Domglas Inc. (No. 1) (1991), 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16 (Ont. Bd.Inq.): 28, 71

Guthrie v. Ontario Association of Architects (1988), 29 O.A.C. 146: 56

Harvey v. Law Society of Newfoundland (January 23, 1992), N.J. No. 18 (Nfld. S.C.) [unreported]: 56, 71

Hyman v. Southam Murray Printing (No. 1) (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.): 66

Irwin Toy Ltd. c. Quebec (Procureur général), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927: 69

Kodellas v. Saskatchewan (Human Rights Comm.) (1989), 1989 CanLII 284 (SK CA), 60 D.L.R. (4th) 143, 10 C.H.R.R. D/6305 (Sask. C.A.): 24, 40, 49, 56, 60, 65

Latif v. Ontario (Human Rights Comm.)(1992), 1992 CanLII 14313 (ON CTGDDC), 17 C.H.R.R. D/198 (Ont. Ct. (Gen.Div.)): 7

MacBain v. Canada (Human Rights Comm.) (1984), 1984 CanLII 5379 (FC), 11 D.L.R. (4th) 202, 5 C.H.R.R. D/2214 (F.C.T.D.): 38, 53

Mehta v. Nova Scotia (Human Rights Comm.) (1985), 1985 CanLII 5261 (NS SC), 67 N.S.R. (2d) 112, 1985 CanLII 3117 (NS SC), 6 C.H.R.R. D/2861 (C.A.): 53

Meissner v. 506756 Ontario Ltd. (1989), 1989 CanLII 9068 (ON HRT), 11 C.H.R.R. D/94 (Ont. Bd.Inq.): 66

Motorways Direct Transport Ltd. v. Canada (Human Rights Comm.) (1991), 1991 CanLII 13186 (FC), 16 C.H.R.R. D/459 (F.C.T.D.): 69

Nisbett v. Manitoba (Human Rights Comm.) (April 10, 1992), M.J. No. 178 (Man. Q.B.) [unreported]: 24, 30, 62

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: 40

Pasqua Hospital v. Harmatiuk (1987), 1987 CanLII 981 (SK CA), 42 D.L.R. (4th) 134, 8 C.H.R.R. D/4242 (Sask. C.A.): 40

Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123: 46, 56

R. v. Beare, 1987 CanLII 4888 (SK CA), [1987] 4 W.W.R. 309: 50

R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387: 23

R. v. Mills (1986), 1986 CanLII 17 (SCC), 29 D.L.R. (4th) 161: 26, 37

R. v. Morgentaler (No. 2), 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385: 48, 53

R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103: 47

R. v. Quesnel (1985), 1985 CanLII 165 (ON CA), 53 O.R. (2d) 338: 56

R. v. X. (1983), 1983 CanLII 1954 (ON HCJ), 3 D.L.R. (4th) 253: 53

Ressel v. Chiropractic (Ont.) (1990), 41 O.A.C. 321: 7

W.K.L. v. Canada (May 16, 1992), (S.C.C.) [unreported]: 65

Wilson v. British Columbia (Medical Services Comm.) (1988), 1988 CanLII 177 (BC CA), 53 D.L.R. (4th) 171: 56

York Condominium Corp. No. 216 v. Dudnik (No. 2) (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325 (Ont. Bd.Inq.): 38

Legislation Cited

Canada

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11

s. 7: 2, 5, 23, 46, 55

s. 24: 22

Ontario

Freedom of Information and Protection of Privacy Act, 1987, S.O. 1987, c. 25: 37

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

s. 2(1)(b): 41

s. 41(4): 39

s. 44: 39

Statutory Powers Procedure Act, R.S.O. 1980, c. 484, s. 23: 22

INTRODUCTION

1This interim decision examines the effect of an extensive period of delay between the filing of a complaint alleging sexual harassment in employment, the completion of an investigation by the Ontario Human Rights Commission (the "Commission"), and the appointment of a board of inquiry to hear the matter.

2The individual respondent (the "respondent") has brought a motion to stay the proceedings, arguing that the delay has infringed his rights to life, liberty or security of the person, contrary to the principles of fundamental justice guaranteed in s. 7 of the Canadian Charter of Rights and Freedoms [Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11] (the "Charter"). The respondent argues further that the delay amounts to a denial to him of natural justice. The respondent submits that the nature of the allegation against him gives rise to Charter rights, which are jeopardized by the extensive delay by the Commission insofar as it subjects him for an unduly prolonged period to the vexations and vicissitudes of a pending accusation of egregious personal conduct. In Mr. Latif's view, he has been stigmatized and his ability to defend against the allegations has been compromised.

3The Commission resists the motion, arguing that no right of the respondent to life, liberty or security of the person is in jeopardy in these remedial human rights proceedings and hence, that s. 7 of the Charter has no application. In the alternative, the Commission submits that, if s. 7 of the Charter applies, the principles of fundamental justice have not been infringed by the delay because the respondent has not been prejudiced. The Commission also submits that the requirements of natural justice have not been breached in the absence of procedural unfairness to the respondent.

4This motion was argued before me on July 3, 1992, at the commencement of the hearing. By letter dated July 16, 1992, I communicated my decision to the parties that the complaint should not be stayed or dismissed for delay and dismissed the respondent's motion. I indicated that my written reasons for this decision would follow. In this interim decision, I set out those reasons.

5It is my opinion that s. 7 of the Charter is inapplicable. Neither the potential consequences, nor the nature of the proceedings jeopardize the liberty or security interests of the respondent. I am not persuaded that the nature of an allegation can raise rights under s. 7 of the Charter. Even if s. 7 were applicable, I would [find] that the requirements of fundamental justice have not been breached by the delay because the respondent has not been actually prejudiced by the delay and a fair and full hearing remains possible. Finally, I find no breach of the natural justice.

BACKGROUND TO THE MOTION

6On April 26, 1991, I was appointed by the Minister of Citizenship to act as a board of inquiry with respect to this complaint (Exhibit No. 1). When the hearing initially commenced by way of conference call on May 12, 1991, counsel for the respondent raised an objection to my jurisdiction because of the lengthy delay between the filing of the initial complaint and the recommendation by the Human Rights Commission to the Minister that a board of inquiry be appointed. It was agreed initially that the objection to my jurisdiction would be argued as a preliminary motion. However, prior to the hearing, the respondent communicated his intention to judicial review. By consent, the hearing dates before me were adjourned and the respondent's judicial review application was transferred to the Divisional Court. The Ontario Attorney General intervened as of right in those proceedings. Because relief in the form of prohibition was sought, the Commission considered it proper, and the respondent agreed, to add both the complainant and the Board of Inquiry as parties to these proceedings.

7In his factum, the respondent argued that the Commission had lost jurisdiction in this complaint because of the delay and because of its failure in the initial stages of the investigation to endeavour to effect a settlement (Preliminary Exhibit No. P1, at para. 18). As well as offering constitutional argument on the motion, the Attorney General requested that it be quashed as premature. The Divisional Court ultimately decided that the motion was premature and directed the matter back to me as the Board of Inquiry (Order, Ontario Court of Justice [Divisional Court], File No. 488/91, March 2, 1992). In its endorsement, the Court expressed the view that the case was governed by the rule in Ressel v. The Board of Directors of Chiropractic (Ont.) (1990), 41 O.A.C. 321 and that it was the duty of the Board of Inquiry to decide in the first instance whether the complaint should be stayed or dismissed for delay (Oral Endorsement, Callaghan C.J.O.C., File 488/91, Released March 11, 1992 [1992 CanLII 14313 (ON CTGDDC), 17 C.H.R.R. D/198).

8A further conference call was held for the purpose of setting dates for the hearing of preliminary matters and the merits. Counsel for the respondent indicated his intention to bring the delay motion before me. At the same time, the respondent sought the leave of the Ontario Court of Appeal to appeal from the determination of the Divisional Court. Leave was not granted and, after some adjustment of counsel and dates, the hearing before me began on July 3, 1992.

9The respondent's application record in the Ontario Court of Appeal was filed with me as Exhibit No. 3, together with transcripts of cross-examination on the affidavits of Mr. Desmond Fitzmaurice, who had represented Mr. Latif in his later dealings with the Commission (Exhibit No. 6), Mr. Gary Speranzini, a human rights officer working with the Commission's legal unit (Exhibit No. 5), and Mr. Mark Frawley, the Director of Legal Services at the Ontario Human Rights Commission (Exhibit No. 4). This material, together with cited authorities, formed the factual and legal basis for the argument before me.

FACTUAL BACKGROUND

10In 1985, the complainant was employed by the corporate respondent, A-1 Collision and Auto Service. She alleges in her complaint, originally filed on July 16, 1985, and amended on July 24, 1990, that during her employment, the respondent, Mr. Mohammed Latif, subjected her to harassment because of her sex, to sexual solicitation and to reprisal for the rejection of that sexual solicitation (Exhibit No. 2). The complainant alleged that Mr. Latif subjected her on an almost daily basis to unwanted, sexually-oriented touching, remarks and gestures and that he had made suggestive remarks to her in telephone calls to her home when she was absent from work following a car accident. This complaint was amended on July 24, 1990, to include an allegation of reprisal for the rejection of sexual solicitation (Exhibit No. 3, tab 5: A5). The respondent was notified by the Commission of the complaint by later [sic] dated December 11, 1985. He provided his written response to the complaint on January 22, 1986 (Exhibit No. 3, tab 5: A2).

11A note in the Commission's file, dated March 5, 1986, indicates that Mr. Latif was asked about an alleged incident involving the complainant's successor, and a second note dated July 27, 1986, indicates that Mr. Latif was then available for a fact-finding conference (Exhibit No. 3, tab: 5A). Mr. Speranzini stated that a human rights officer conducted an initial investigation in 1985, 1986 and through 1987 (Exhibit No. 5, at p. 21). This may have been an overgenerous characterization of an investigation that appears to have proceeded at a snail's pace, or not at all, for extended periods during those years. A letter enclosing the first case summary and requesting any [sic] reply, was sent to Mr. Latif on January 25, 1988, by the Regional Manager of the Toronto West Region of the Commission. There is a dispute about when this case summary was received. Certainly there was no reply to it from Mr. Latif at that time.

12At some point thereafter, the file was transferred to the legal service unit of the Commission. During July 1989, Ms. Mollie Kermany, a law clerk with the legal unit, conducted searches of A-1 Collision and Auto Service with the Ministry of Consumer and Commercial Relations in order to attempt to locate Mr. Latif and the business. During May 1991, Ms. Kermany conducted a second corporate search with the Ministry of Consumer and Corporate Relations which revealed that the business had been dissolved on March 5, 1990, for the default in compliance with the Corporations Tax Act (Exhibit No. 3, tab 6).

13Ms. Kermany also contacted Bell Directory Assistance to obtain an up-to-date telephone number for Mr. Latif and was advised that there were no listings. Mr. Speranzini subsequently confirmed that there were no Toronto telephone directory listings for "M. Latif" in the years 1987, 1988, and 1989 (Exhibit No. 3, tab 7: M). In January 1990, having been unsuccessful in these and other efforts to locate Mr. Latif, Ms. Kermany requested the assistance of a tracing agent to locate Mr. Latif's address and telephone number. The tracing agent wrote to her on January 26, 1990, with the requested information.

14At some point prior to July 6, 1990, a decision to amend the complaint was made by counsel in the legal unit. At this time, the complaint had not yet gone before the Commissioners for their consideration as to whether to recommend the appointment of a board of inquiry (see Exhibit No. 3, tab 7: J; I). On July 6, 1990, a letter informing him of the amendment to the complaint was sent to Mr. Latif at the address located by the tracing agent. The letter originated from the Toronto West regional office. The letter was returned with the word "moved" written on it.

15At that point, Mr. Speranzini was asked to confirm Mr. Latif's address. He called the telephone number given by the tracing agent and reached Mr. Latif's wife. He left a message for Mr. Latif to call him back. On July 13, 1990, Mr. Latif made two calls to the Commission. First, he telephoned the Toronto West office to say that he had heard nothing from the Commission since the complaint was served. Secondly, he telephoned Mr. Speranzini, and was informed that the complaint was still ongoing and had been amended (Exhibit No. 3, tab 7). Mr. Speranzini has no notes of that telephone call, but recalled that Mr. Latif "wanted to be involved" (Exhibit No. 5, at pp. 9–10). Mr. Fitzmaurice in turn recalled that Mr. Latif had said to him, "I thought this was over" and also expressed surprise that, "not having heard from the Commission for a long period of time which was from 1986 to 1990, that . . . it was still ongoing" (Exhibit No. 6, at pp. 12, 17).

16On July 25, 1990, Mr. Speranzini served the amended complaint upon Mr. Latif, and provided him with a copy of the initial investigation report (referred to as a case summary). By letter dated August 10, 1990, Mr. Fitzmaurice wrote to Mr. Speranzini detailing the respondent's dissatisfaction with the Commission's investigation of the case (Exhibit No. 3, tab 5: 7) and with the extensive delay.

17After this revived contact with Mr. Latif, a renewed and conscientious investigation of the allegations was undertaken by Mr. Speranzini. Witnesses identified by the respondent as potentially relevant were interviewed and contentious incidents were reconsidered (and in one case, withdrawn). At least one of the respondent's witnesses had been contacted by the initial investigator (Exhibit No. 3, tab 7, at p. 6). The case summary was twice revised (October 29, 1990, and January 10, 1991) to reflect changes in the evidentiary basis for the allegations and denials, and the positions of the various witnesses.

18The respondent stated to Mr. Fitzmaurice that during the time since receiving notice of the complaint against him, his detailed recollections of events had become vague, and company records no longer existed (Exhibit No. 3: tab 5, at p. 4; Exhibit No. 6, p. 6). No direct evidence from Mr. Latif was placed before me. Mr. Speranzini deposed that the witnesses he spoke to had clear recollections of their experiences at A-1 Collision and Auto Service during the relevant period and remembered the complainant (Exhibit No. 3, tab 7 at p. 7). It appears that all witnesses remain available. The Commission received affidavits from several witnesses indicating an unwillingness to remain involved. There was some debate about whether these affidavits amounted to substantive retractions (Exhibit No. 3, tab 5: A8). This matter would need to be weighed at the hearing on the merits.

19Each revised case summary was sent to the respondent, who was invited on both occasions to reply. During this period the Commission endeavoured to settle the complaint, albeit unsuccessfully. Thereafter, the case material was referred to the Commissioners. Mr. Latif was advised by letter dated March 26, 1991, that the Commissioners had decided to recommend appointment of a board of inquiry with respect to the grounds of discrimination based on harassment and sexual solicitation.

20The Commission provided evidence that during the period when the complaint was filed and investigated, Commission officers carried a caseload of up to 100 files per officer. In the view of the Commission this pressure had built during the 1980s as a result of a steady increase in inquiries and complaints arising from expansion of the Code [Human Rights Code, 1981, S.O. 1981, c. 53], greater awareness of human rights, greater social stresses, and broader interpretations of the Code. The heavy caseload, in turn, resulted in delay in processing some of the complaints waiting to be investigated or otherwise dealt with. Major initiatives to reduce backlog at the Commission, were outlined by Mark Frawley. He indicated that they are having a positive effect on the speed of handling complaints (Exhibit No. 3, tab 8; Exhibit No. 4, at p. 19 ff).

21The Commission concedes that the period of time required to investigate the complaint was excessive in fact, if not in law. The Commission also accepted that the responsibility for the delay lay mostly with the Commission. No effort was made to justify the delay in this case. Counsel for the Commission added, and it is not disputed, that the complainant was not responsible for any of the delay which occurred (Transcript, Vol. 1, at pp. 105, 188, 189, 192). Finally, the respondent does not assert or rely upon any delay after the appointment of the Board of Inquiry (Transcript, Vol. 1, p. 16).

ISSUES

221. Would proceeding with a hearing in which the complaint against the respondent will be determined by a board of inquiry pursuant to the Code, infringe the respondent's rights under s. 7 of the Canadian Charter of Rights and Freedoms (the "Charter") which provides that "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice"?

2. Would proceeding with the hearing be in breach of the principles of natural justice?

3. If the answer to either 1 or 2 is "yes," should the proceedings be stayed indefinitely as an abuse of the process of the Board of Inquiry, pursuant to s. 23 of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484 ("S.P.P.A."), or of [sic] s. 24 of the Charter?

ANALYSIS

Issue 1: Would proceeding with a hearing in which the complaint against the respondent will be determined by a board of inquiry pursuant to the Code, violate the respondent's rights under [s. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec7_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

23An analysis of s. 7 of the Charter involved two steps. It must first be found that there has been a deprivation of protected interests in "life, liberty or security of the person" and secondly, that the deprivation is contrary to the principles of fundamental justice (R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387 at 401). There is no freestanding Charter right to be treated in accordance with the principles of fundamental justice.

A. Life, Liberty and the Security of the Person in Remedial Human Rights Proceedings

24In support of the applicability of s. 7 rights to the protection of life, liberty or security of the person in this proceeding, the respondent cited Re Kodellas and Saskatchewan Human Rights Commission (1989), 1989 CanLII 284 (SK CA), 60 D.L.R. (4th) 143 [10 C.H.R.R. D/6305] (Sask. C.A.), Douglas v. Saskatchewan Human Rights Commission, 1989 CanLII 4657 (SK QB), [1990] 1 W.W.R. 455 (Sask. Q.B.), and Nisbett v. Manitoba (Human Rights Commission), [1992] M.J. No. 178, April 10, 1992 (Man. Q.B.). In each case, complaints of sexual harassment were made pursuant to human rights legislation, delay was experienced in bringing the complaints to adjudication, and the respondents applied to have the proceedings against them stayed on the basis of alleged infringement of s. 7 of the Charter. In each case, stays were granted.

25In Kodellas, supra, nearly four years had passed prior to the appointment of a board of inquiry to hear two complaints of sexual harassment. Chief Justice Bayda characterized the allegations against Kodellas as complaints of "sexual harassment and assault." The nature of the allegation and its "quasi-criminal" characterization assumed considerable significance in his subsequent reasoning, as did his view that remedial human rights proceedings were analogous to criminal and penal proceedings with respect to the application of s. 7 of the Charter. He commented that "for the purpose of determining the effect upon "security of the person," he saw "no logical distinction of substance" between pending criminal accusation and a pending accusation in (at p. 152 [D/6308, para. 44799]):

. . . penal (i.e. quasi-criminal) proceedings under s. 35(2) of the Code, of discrimination based upon sexual harassment and sexual assault. It is but a small step from there to find that for the same purpose no distinction of substance can be made between an accusation in a penal proceeding under the Code and an identical accusation in remedial proceedings under ss. 27 to 33 of the Code. Whether they occur in a criminal context, or in the context of a penal proceeding such as that provided for in the Code, or in the context of remedial proceedings . . . the "vexations and vicissitudes" will invariably "include stigmatization of the [alleged discriminator], loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction." This is so because the hurt to the alleged discriminator emanates from the accusation, not from the type of proceedings in which the accusation is made.

26In this statement, Bayda C.J.S. drew upon comments made by Lamer J. in R. v. Mills(1986), 1986 CanLII 17 (SCC), 29 D.L.R. (4th) 161. That case considered delay in a criminal law context. In Lamer J.'s view, the concept of security of the person encompasses protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation" and the forms of prejudice outlined in the enumerated factors, "cannot be disregarded or minimized when assessing the reasonableness of delay" (at pp. 218–19).

27That Bayda C.J.S. considered that it was the effect of being accused of egregious personal conduct for a prolonged period of time that was central to his approach in Kodellas, supra, was made even clearer when he continued (ibid. [D/6308, para. 44799):

[I]t matters not a whit to all of the relevant actors — the public, the persons who are the source of the hurt, those who are indirectly affected by the hurt . . . and the alleged discriminatory . . . whether the accusation is made in one procedural forum or another. What matters is the fact of the accusation.

Mr. Justice Wakeling, in a separate concurring decision, emphasized that Kodellas had a right "to obtain a hearing within a reasonable time, so as to prevent him from being held in a state of uncertainty and concern for his reputation over such a prolonged period" and a right "not to be prejudiced, to a relevant degree, in his ability to present a defence to these serious allegations" (at pp. 199–200). Mr. Justice Vancise opined that a proceeding before a board of inquiry is (at p. 178 [D/6319, para. 44858]):

. . . a formal judicial process with all of the attending exigencies of a criminal or quasi-criminal trial . . . Indeed, because the civil standard of proof applies to these proceedings, it can be argued that he is in a worse position than he would have been in had he been [sic] charged with the criminal offence of sexual assault . . . He is subject to the same vicissitudes and vexations as a result of these pending proceedings . . . He is left in a state of uncertainty, but nevertheless, the allegations hang over his head . . . In those circumstances, the stigmatization in the community at large and in the Greek community in particular, the resultant disruption of family life, the anxiety, the damage to his dignity and self-esteem, have been or could be a deprivation to the security of the person as contemplated by s. 7.

Although separate reasons for decision were offered by each judge in Kodellas, their approaches were similar. They all concluded that the prospective holding of a hearing after such extensive delay would affect the respondent's self-respect and dignity and, in so stigmatizing him, could infringe s. 7 of the Charter.

28In their emphasis on the type of the accusation and their de-emphasis on the penal context of a proceeding or consequence, the judges in Kodellas, supra, departed from the more established understanding that s. 7 rights arise in light of the [sic] either the possible consequences of a proceeding to an individual, or the nature of the proceedings. Kodellas appears to craft a third route into s. 7 of the Charter which focusses on the subject matter of the allegations and "whether the kind of misconduct in question is such that its allegation would cause a normally sensitive person accused of it to suffer from the kind of distress the Court of Appeal described" such that, if the process is unreasonably prolonged, s. 7 is infringed (see Ghosh v. Domglas, Ont. Bd.Inq., Nov. 22, 1991, at pp. 18, 11 [now reported 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16 at D/22, para. 42]). Kodellas was followed in Douglas, supra, and Nisbett, supra.

29In Douglas v. Saskatchewan Human Rights Commission, supra, Mr. Justice Lawton granted a respondent's motion for a stay of proceedings before a board of inquiry with respect to a complaint of sex discrimination because of sexual harassment. A delay of two years and seven months had elapsed from the filing of the complaint to the scheduling of a hearing before a board of inquiry. Mr. Justice Lawton followed the reasoning in Kodellas, supra, and accepted that s. 7 of the Charter was applicable. He utilized the criteria set out in that case and found establish [sic] that the delay in the case before him was unreasonable.

30In Nisbett v. Manitoba (Human Rights Commission), supra, a three-year period had elapsed from the filing of a complaint of sexual harassment and the appointment of a board of adjudication. Some of the delay was attributable to adjudication being deferred pending the disposition of a sexual assault charge arising out of the same allegations. The judge considered the responsibility for the delay, and the alleged prejudice to the respondent resulting from the delay. He decided that there was unreasonable delay, and went on to consider the alleged violation of s. 7 of the Charter. He concluded that (at p. 7):

. . . the anxiety, the strain on family life, the disruption of [Dr. Nisbett's] professional practice, the quest for evidence of similar conduct from former employees, the damage to his personal dignity and professional standing, the loss of self-esteem, and the continuing uncertainty as to the final outcome of the proceedings do amount to a deprivation of the security of the person as guaranteed by s. 7 of the Charter in a manner which offends the right to have the complaints of sexual discrimination determined within a reasonable time.

31Unsurprisingly, the respondent sought to use this Kodellas, supra, route to establish a point of entry to s. 7 Charter rights. The appropriate starting point for the inquiry would then become whether the admittedly lengthy delay was inconsistent with fundamental justice. The Commission, on the other hand, sought to convince me that the Kodellas approach should not be adopted. The Commission submitted that the approach taken in Kodellas was overly broad and indefinite, and was inconsistent with the weight of authority on [the] scope of s. 7 of the Charter. The Commission accepted that a respondent in a remedial human rights proceeding may experience stress and anxiety, but submitted that this was insufficient, of itself, to give rise to s. 7 rights.

32Sexual harassment, counsel for the respondent argued, is a particularly egregious form of discrimination and is one of the very few examples of conduct which is labelled discrimination under the Code which is also a criminal offence. Counsel for the respondent acknowledged that, if the allegations were proven on the balance of probabilities, they would certainly be sexual harassment and might also be properly characterized as sexual assaults (Transcript, Vol. 1, p. 20). Counsel also noted that sexual harassment was the underlying ground of complaint in each of Kodellas, supra, Douglas, supra, and Nisbett, supra. Particular stress and stigmatization of wrong-doing within the community was said to arise in connection with allegations of this nature, whether raised in connection with allegations of this nature, whether raised in the context of a criminal proceeding or a proceeding under the Code. The stigmatization is in the nature of a dignitary interest, the uncertainties of the outcome, the difficulties which arise within the community and within one's family as a result of such allegations when they go on for extended periods of time unresolved (Transcript, Vol. 1, p. 32).

33It is true that an allegation of sexual harassment is a serious form of discrimination, but, as the Commission pointed out, allegations of any type of discrimination are serious. In its submission, with which I agree, it would be unhelpful to single out any one ground as particularly egregious or stigmatizing. It is not clear that allegations of other forms of discrimination are viewed as being somehow less egregious or more tolerated. I also note that little guidance is given by the Kodellas court, supra, as to why another "small step" should not be taken to extend concern from complaints of conduct, of like gravamen to criminal offences, to any other complaint under human rights legislation (see concerns expressed in Ghosh, supra, at 18 [D/22, para. 42]).

34Moreover, the ground of sexual harassment in the Code, while undoubtedly incorporating conduct which could amount to the criminal offence of sexual assault, is a much broader concept. Its scope and application have developed in a distinct human rights context. As pointed out by the Commission, the focus in human rights proceedings is on the nature of a practice and its effect or impact on the complainant. A board of inquiry does not determine "guilt" but rather assigns responsibility for a discriminatory act or practice. For these reasons alone, I believe that it is unwise to readily analogize grounds of complaint in human rights legislation with conduct controlled by the criminal law and to apply protections developed in the criminal law context to other contexts. As pointed out by the Supreme Court of Canada in Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326 at 1355, "[a] right or freedom may have a different meaning in different contexts."

35The Commission made extensive submissions to the effect that remedial human rights proceedings differ significantly from criminal proceedings and that I should proceed cautiously in taking the "small step" advocated by the Kodellas court, supra, from accusations in a penal proceeding and those in remedial proceedings under human rights legislation. The Commission referred to distinctions between the import of a criminal charge and the laying of a human rights complaint, and the differing privacy concerns, role of the Commission, potential sanctions and coercive power in the human rights context. I agree that remedial human rights proceedings differ in material ways from criminal proceedings and that these distinctions require more careful consideration than that given by the judges in Kodellas.

36Unlike a criminal charge which is laid only after a police investigation, a human rights complaint may be filed as of right. While the Commission attempts to settle disputes informally prior to the filing of a formal complaint, it is only after a formal complaint has been filed that an investigation takes place. The investigation is non-partisan and aimed at identifying what took place and ultimately endeavouring to settle the matter in a non-adversarial manner. Unlike the laying of a criminal charge, the filing of a human rights complaint implies no suspicion on the part of a public body, of wrongdoing.

37Further, the identity of both complainants and respondents in a human rights investigation cannot be disclosed by the Commission because it is bound by the Freedom of Information and Protection of Privacy Act, 1987 [S.O. 1987, c. 25] (the "Privacy Act"). The educative and conciliatory duties of the Commission may well be fostered by the protection of confidentiality. This situation is quite different with respect to criminal charges. Generally, the identity of an accused person is not protected and publicity may well follow the charge. This publicity is part of the overall concern with ensuring an open and public criminal justice system. It has been noted, however, that such openness may create a tension with an equally fundamental interest, the presumption of innocence. Lamer J. pointed out in Mills, supra, that (at 219):

[t]he need for protecting the security interest of the individual accused arises from the nature of the criminal justice system and of our society. We have long recognized the need for an open and public criminal system as a vital means of ensuring respect for the integrity of the process. We also acknowledge the necessity of a free and unrestricted press. As a practical matter however, the impact of a public process on the accused may well jeopardize or impair the benefits of a presumption of innocence . . . The repercussions and disruption will vary in intensity from case to case, but they inevitably arise and are part of the harsh reality of the criminal justice process.

This points out again the importance of the particular context of proceedings.

38The role of the Commission in investigating and conciliating complaints of discrimination is a third difference between remedial human rights proceedings and criminal law proceedings. The Commission does not "prosecute" the respondent. Human rights complaints [are not] prosecutions "by the state for a public offence involving punitive sanctions" (Dudnik v. York Condominium Corporation No. 216 (No. 2) (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325 at para. 41 [D/332]). In Commodore Business Machines and Minister of Labour (1984), 1984 CanLII 2017 (ON HCJ), 14 D.L.R. (4th) 118 [1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833], the Ontario Divisional Court held that a respondent before a human rights tribunal is not "charged" with an offence (see also MacBain v. Canadian Human Rights Commission(1984), 1984 CanLII 5379 (FC), 11 D.L.R. (4th) 202 [5 C.H.R.R. D/2214]).

39Ms. Blight noted that the Code contains the possibility of penal proceedings insofar as it renders violation of an order of a board of inquiry, interference with execution of a warrant or investigation under the Code, or contravention of rights guaranteed under Part I of the Code, an offence subject to provincial offences prosecution with the consent of the Attorney General (Code, s. 44). I note that, in his affidavit, Mark Frawley stated that to the best of his knowledge, s. 44 has never been used (Exhibit No. 3, tab 8). However, there is clearly scope for penal proceedings arising out of the Code. Moreover, pursuant to s. 41(4) of the Code, the board of inquiry may make an order requiring a person to impose sanctions to prevent the continuation or repetition of harassment. There is no suggestion that the proceedings against Mr. Latif are penal in nature.

40A fourth distinction between criminal and remedial human rights proceedings lies in the powers of a board of inquiry. A board of inquiry has no power to fine, or incarcerate respondents. Board orders are compensatory in nature rather than punitive. Ms. Pike put it colourfully when she commented that "dreading jail would be a different thing than dreading the outcome of a human rights proceeding" (Transcript, Vol. 1, p. 139). It is well-established that human rights legislation is remedial, not punitive and is directed to dealing with the "consequences of conduct rather than with punishment for misbehaviour" (Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at 547, 549 [7 C.H.R.R. D/3102 at D/3105, D/3106]; see also Robichaud v. The Queen(1987), 1987 CanLII 73 (SCC), 40 D.L.R. (4th) 577 at 581–82 [8 C.H.R.R. D/4326 at D/4329–D/4330] (S.C.C.)). I note that in Kodellas itself, supra, Bayda C.J.S. cited Pasqua Hospital v. Harmatiuk(1987), 1987 CanLII 981 (SK CA), 42 D.L.R. (4th) 134 at 149 [8 C.H.R.R. D/4242 at D/4249, para. 33345], to the effect that "to construe a compensatory order . . . designed to relieve a victim of the effects of discrimination as seriously hurting the body or mind of the discriminator, would be to stretch the concept of ”˜life, liberty or security of the person' well beyond the breaking point."

41The respondent nevertheless suggested that the Commission had itself suggested that its investigations could lead to proceedings involving a risk of penalty or sanction, in submissions before the Information and Privacy Commissioner of Ontario. The Privacy Act which is administered by the Privacy Commissioner, permits access to information but exempts documents prepared in the process of "law enforcement," defined in s. 2(1)(b) as meaning "investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings." Ms. Blight cited Order 178 and Order 200 of the Privacy and Information Commissioner. In Order 178, June 12, 1990, Assistant Privacy Commissioner Wright rejected a request for access to Commission investigation documents. He found that the investigation of the complaint qualified as "law enforcement" and that disclosure of the documents could interfere with the investigation (at p. 4). In Order 200, October 11, 1990, a similar request was made and was similarly unsuccessful before Assistant Commissioner Wright.

42In response, Ms. Pike directed my attention to Order 208, December 4, 1990. In this case, a request had been made for access to intake documents, written statements, interview notes and the investigation file of the Commission with respect to a specific sexual harassment complaint. Access was denied by the Freedom of Information and Privacy Co-ordinator, and an appeal was taken from that decision. The appellant argued that the documents were not exempted from access because the processes of the Commission were not "law enforcement." He argued that the proceedings were only remedial and compensatory in nature and that the investigation could not result in a penalty or sanction. The Commission resisted disclosure of the information, arguing that investigations by the Commission are methods of law enforcement which could result in penalty or sanction. Assistant Privacy Commissioner Wright agreed with the Commission. But he based his decision on a broad interpretation of the term "sanction" within the Privacy Act as including the possibility of a restitutionary order. The question of "penalty" was not considered.

43What Order 208 clarifies is that the meaning being given to "sanctions" for the purposes of the Privacy Act is much broader than that traditionally associated with criminal sanctions. It appears to encompass the possibility of any remedy at all being ordered. Clearly, investigations undertaken by the Commission are pursuant to a statutory obligation to ensure compliance with legislation. I further accept that the sanctions and penalties in a human rights proceeding are quite different and are motivated by different objectives than those which operate in the criminal process.

44A related point of distinction has to do with the potential for coercive power and control to be exercised over the conduct of a criminal accused, as opposed to an alleged discriminator. While a criminal accused can be subjected to pre-trial custody or stringent bail conditions which have a disruptive effect on personal life, the Commission has no power to affect the behaviour of a respondent pending determination of a matter before a board of inquiry. No doubt, a human rights proceeding may cause embarrassment and inconvenience within one's family and community. But, in my view, this falls far short of the kind of disruption associated with criminal proceedings.

45In my view, these points establish that a respondent in a remedial human rights proceeding is not jeopardized with respect to interests in life, liberty or security of the person by the potential consequences or by the nature of the proceedings and that in the absence of the Kodellas, supra, point of entry to s. 7 of the Charter, respondents such as Mr. Latif have no recourse under that section. I agree with Professor Backhouse, who commented in Gale v. Miracle Food Mart; Ontario Human Rights Commission v. United Food Workers International Union, Locals 175 and 633 (Ont. Bd.Inq., C. Backhouse, May 8, 1992) [unreported], that (at p. 10):

. . . it appears that section 7 of the Charter has no application to remedial proceedings under the Code. There is a fundamental distinction between criminal and quasi-criminal proceedings, in which a person's life, liberty or security of the person may be in jeopardy, and human rights proceedings, which are essentially civil in nature.

These points also suggest that the allegation of misconduct should not be abstracted from its context in the nature of the proceedings in which it is made. That context plays an important role in constituting the meaning and potential scope of risks to life, liberty or security of the person.

46It is true that s. 7 rights are not limited only to the criminal context. In Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123 (the Prostitution Reference case), Lamer J. pointed out that the regulatory or administrative proceedings may attract s. 7 protection in certain circumstances, where (at pp. 1175–76):

. . . what is at stake . . . is the kind of liberty and security of the person the state typically empowers judges and courts to restrict. In other words the confinement of individuals against their will, or the restriction of control over their minds and bodies, are precisely the kinds of activities that fall within the domain of the judiciary as guardian of the justice system.

The judge recognized that "the increasing role of administrative law in our modern society" provides the state with an opportunity to regulate a myriad of activities and areas that affect individuals including human rights. He expressly declined to determine the extent to which s. 7 of the Charter can be invoked in the realm of administrative law, but a consistent concern is evident in his statements with protecting individuals against coercion, physical restraint, and required compliance enforced by the risk of punishment.

47In light of such guidance by the Supreme Court, the Commission submitted that the possible consequences and nature of the proceedings against Mr. Latif could not be said to inflict "hurt" to the respondent that is identical to that experienced by an accused person in a criminal matter (see R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103 at 119–20). The Commission urged me to accept instead, that "[t]his is not a case where it is the state which is either restricting or has the potential to restrict the petitioners' security of the person by interfering with, or removing from them, control over their physical or mental integrity (Re Bennett v. B.C. Securities Commission (1991), 1991 CanLII 8199 (BC SC), 82 D.L.R. (4th) 129 (B.C.S.C.) at 183).

48The respondent nevertheless submitted that the nature of the allegation and delay in resolving it interfered with Mr. Latif's rights to mental integrity. In the Prostitution References, supra, Lamer J. reiterated that s. 7 of the Charter extended to "overlong subjection to the vexations and vicissitudes of a pending criminal accusation." Stigmatization of an accused may "deprive him of the rights guaranteed by s. 7," as might "state interference with bodily integrity and serious state-imposed psychological stress" (at p. 1174). Similarly, in R. v. Morgentaler (No. 2), 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385, Madame Justice Wilson commented that "the right to ”˜security of the person' . . . protects both the physical and psychological integrity of the individual" (at 485). This form of interference with mental integrity clearly extends to stress occasioned by loss of control over decision making and the threat of criminal action.

49Drawing again on Kodellas, supra, Ms. Blight advocated a broad understanding of "mental integrity" which would encompass "human negative feelings" or the diminished self-perception or reputation of the alleged discriminator. He stated [Bayda C.J.S.] (at p. 156 [D/6309, para. 44804]:

. . . the human negative feelings wrought by an accusation of discrimination of the type made against Mr. Kodellas and by the resulting formal proceedings which follow such an accusation fall into the category of "serious hurt" . . . and fall within the definition of "stigmatization" contemplated by Lamer J. and within the definition of "psychological trauma" contemplated by Wilson J. [in Morgentaler].

50As such, he adopted and developed his earlier statements in R. v. Beare, 1987 CanLII 4888 (SK CA), [1987] 4 W.W.R. 309 that the right to "life, liberty and security" extends beyond the body to the "dignity and worth of the human person" and includes the right not to be "seriously hurt in mind and body and not to be unduly restricted in the enjoyment of the body and the mind and its attributes" (ibid., Headnote).

51Beare, supra, involved a s. 7 challenge to legislation which permitted the police to fingerprint an accused person. The Saskatchewan Court of Appeal took a broad approach to dignitary interests in s. 7 of the Charter and found that the section had been infringed. The case was appealed to the Supreme Court of Canada and the decision upheld. In Bayda C.J.S.'s view "it is fair to say that the grounds [given by the Supreme Court] do not affect this appeal" (Kodellas, supra, at 156 [D/6309, para. 44805]).

52However, it seems that the Supreme Court's reasons very much impinge on the approach advocated by the Court of Appeal to s. 7 of the Charter. The Supreme Court of Canada rested its finding on the degree of coercion and possible punishment for non-compliance which was part of the fingerprinting requirement. La Forest J., speaking for the Court, stated [Beare, supra, at 401–2]:

The Court of Appeal . . . found that the impugned provisions constituted an infringement of the right . . . because fingerprinting offends the "dignity and self-respect" of at least those persons who because of their self-perception or the perception of the community would feel demeaned by being thus treated. In short, the majority thought that being subjected to fingerprinting was to be treated like a criminal. This approach appears to be overbroad and indefinite and to introduce an undesirable notion of differentiation among those subjected to the procedure. For my part, I prefer the more specific finding of Cameron J. that the impugned provisions infringe the rights guaranteed by section 7 because they require a person to appear at a specific time and place and oblige that person to go through an identification process on pain of imprisonment for failure to comply.

Bayda C.J.S. was aware of the Supreme Court's reasons in Beare, when he came to decide Kodellas, supra. I find it difficult to agree with Bayda C.J.S. that the Supreme Court's reasons did not affect the views he expressed in the Court of Appeal with respect to the scope of dignitary interests in s. 7 of the Charter.

53Other cases also suggest that the stress of being a respondent in a human rights proceeding is not comparable to the stress referred to by the Supreme Court in R. v. Morgentaler, supra, as attracting s. 7 protection. In MacBain v. Canadian Human Rights Commission, supra, a respondent brought actions seeking an interlocutory injunction or order of prohibition preventing a human rights tribunal from continuing with an ongoing hearing. A (former) employee had laid a complaint alleging sex discrimination, including humiliation, insult and intimidation by MacBain. Following an investigation in which it concluded that the allegations had been substantiated, the federal Commission had decided to appoint a tribunal. MacBain argued that this process raised a reasonable apprehension of bias against him and that the legislation authorizing it infringed his rights under s. 7 of the Charter. In his oral decision, Mr. Justice Collier stated that with respect to the Charter argument, he was not "persuaded that the right to ”˜life, liberty and security of the person' includes the interference with one's good name, reputation or integrity" (at p. 212 [D/2219, para. 18732]). To the same effect is Mehta v. MacKinnon(1985), 1985 CanLII 5261 (NS SC), 67 N.S.R. (2d) 112 [1985 CanLII 3117 (NS SC), 6 C.H.R.R. D/2861] (see also R. v. X. (1983), 1983 CanLII 1954 (ON HCJ), 3 D.L.R. (4th) 253; Downes v. Minister of Employment and Immigration (1986), 4 F.T.R. 215).

54In Re Bennett v. B.C. Securities Commission, supra, William and Russell Bennett petitioned the Court to [sic] for a stay of a hearing against them. They were suspected of insider trading, as a result of which the British Columbia Securities Commission conducted an investigation and began an administrative hearing. The petitioners claimed that the delay from the time when the proceedings began in January 1989 until the Securities Commission ultimately set the matter down for hearing for February 1991, had subjected them for an overlong period to the "vexations and vicissitudes of a pending . . . accusation" (at pp. 173–74). William Bennett further argued that it should be inferred that he was being subjected "to the stigmatization of yet again being accused, to an almost unprecedented loss of privacy, to significant stress and anxiety, including the disruption of his family, his social life, his work and to significant additional legal costs" (at p. 174).

55Melnick J. noted that the consequences of any adverse finding against the petitioners in a Securities Commission proceeding would be purely economic. He stated that s. 7 has no application where the potential consequences are economic. After reviewing relevant case law, including Kodellas, supra, and the Prostitution Reference, supra, Melnick J. concluded that (at pp. 182–83):

. . . Kodellas notwithstanding, the weight of authority is against the application of section 7 of the Charter to the specific administrative proceedings under s. 144 of the Securities Act . . . This is not a case where there will be any consequences to the petitioners' physical liberty or security. Nor does the evidence before me establish that any of the petitioners' mental integrity is being, or will be, affected.

In Melnick J.'s view, s. 7 "is not meant to protect the rights of these petitioners who are involved in a regulatory, inquisitorial process, the consequences of which do not impact on their physical liberty and security of the person" (at pp. 182–83).

56I should also note that, in my view, the Kodellas approach, supra, may open the (back) door to claims of harm to economic rights which can be recast as protected "dignitary rights." It is by now well established that purely economic interests are not protected by s. 7 of the Charter. Undoubtedly stress, anxiety, or stigmatization may be experienced by persons who are subject to a disciplinary hearing which could result in the loss of a licence to practise their professions. But, in Ontario, courts have rejected the argument that the right to practise a profession or calling is within the ambit of that section (see Feldman v. Law Society of Upper Canada, Ont. Div.Ct., December 9, 1987 [unreported]; Guthrie v. Ontario Association of Architects (1988), 29 O.A.C. 146; R. v. Quesnel(1985), 1985 CanLII 165 (ON CA), 53 O.R. (2d) 338; see also the Prostitution Reference, supra). It might be added that in Bennett, supra, Melnick J. was prepared to accepted [sic] that a right to practise a profession may be protected within s. 7 of the Charter, citing Wilson v. B.C. (Medical Services Commission) (1988), 1988 CanLII 177 (BC CA), 53 D.L.R. (4th) 171 (see also Harvey v. Law Society of Newfoundland, [1992] N.J. No. 18, January 23, 1992, Nfld. S.C., Hickman C.J.T.D.). Nevertheless, he was not prepared to apply s. 7 of the Charter.

57In my opinion, the nature of the allegation is not sufficient to bring the respondent within the life, liberty or security interests protected by the Charter. This alternative route into protected security interests, suggested in Kodellas, supra, overshoots the purpose of s. 7 of the Charter and could lead to great uncertainty and introduce vague and indefinite concepts into the analysis. I find the reasoning in Kodellas to be unpersuasive and prefer the parameters established by Lamer J. in the Prostitution Reference, supra, when he stated (at 1173–74):

The interests protected by s. 7 are those that are properly within the domain of the judiciary. Section 7 and more specifically ss. 8–14 protect individuals against the state when it invokes the judiciary to restrict a person's physical liberty through the use of punishment or detention, when it restricts security of the person, or when it restricts other liberties by employing the method of sanction and punishment traditionally within the judicial realm.

58I conclude therefore that the nature of the allegation and the stigma that may be associated with it and be compounded by extensive delay, in a remedial human rights proceeding, is not sufficient to raise an interest within s. 7 of the Charter. As neither the consequences [n]or [the] nature of the proceedings attract such an interest either, I find that the respondent has not passed the threshold of bringing himself within s. 7 of the Charter.

B. Fundamental Justice

59Because I have concluded that the respondent does not have s. 7 rights at stake in these proceedings, it is unnecessary to go on to assess whether the delay involved in this case is contrary to the principles of "fundamental justice" and hence an infringement of that section. However, as the point was fully argued, I will address some aspects of this question, focussing on the issue of prejudice to the respondent and the appropriate test in remedial human rights proceedings.

60In Kodellas, supra, Bayda C.J.S. and Vancise J.A. suggested that several factors should be taken into account when determining whether delay is unreasonable. These factors include whether the delay was prima facie unreasonable, the reason or responsibility for the delay, the adequacy of institutional resources, the prejudice or impairment caused to the alleged discriminator by the delay, and prejudice to society by not having expeditious hearings.

61With respect to "prejudice" to the alleged discriminator, Vancise J.A. included impairment of the ability to make full answer and defence and as well, "the effect of the delay on the wrongdoer, including the anxiety caused by the uncertainty and the disruption to family and social relationships" (at p. 180 [D/6320]). Later, he commented (at p. 182 [D/6321, para. 44868]):

It is not necessary that there be actual prejudice to the wrongdoer as a result of the delay. Delay which causes or is likely to cause prejudice by impairing the ability to mount a full answer and defence is a relevant consideration. Actual prejudice is a major factor to be considered in this context.

In the result, he found that Mr. Kodellas had "demonstrated actual prejudice to his ability to mount a fair answer and defence caused by the unexplained and unreasonable delay in proceeding" with the complaints against him (at p. 182 [D/6321, para. 44868]). Bayda C.J.S. set his task as assessing the actual prejudice to Mr. Kodellas. He considered Mr. Kodellas's assertions that he was unable to locate potential witnesses and that their recollections may have faded during the period of delay. The justice stated that he was not overly impressed with the efforts made to locate the potential witnesses, but he was prepared to find that some actual prejudice had been shown (at pp. 159–60 [D/6315–D/6316]).

62In Douglas, supra, Lawton J. commented that evidence given by the respondent to support a claim of prejudice to him was vague and weak. However, he was "satisfied that [the respondent] had been or could have been prejudiced in mounting a full answer and defence" and that "although Douglas has failed to indicate actual prejudice, he has satisfied me that there is a potential of prejudice. That is enough" (at p. 464). In Nisbett, supra, Dureault J. stated that "the court has to consider and weigh the actual prejudice which the applicant considers was caused by the delay" (at p. 5). The evidence tendered in support does not appear to have been particularly cogent: the respondent was "not confident of being able to locate" witnesses, and "did not know whether, by reason of the passage of time, they would be able to give evidence" (ibid.). The judge appears to have accepted that if evidence was not available on the adjudication of that part of the complaint, it would amount to "a grave prejudice," but it is unclear whether the judge was satisfied that this was actually the case. The judge appears to have been much more concerned with the nature of the allegation, the inactivity, and the fact that criminal proceedings had been undertaken concurrently.

63Ms. Blight, after reviewing this case law, submitted that potential prejudice in the form of a reduced chance of a fair hearing and personal disruption was sufficient. She acknowledged that in this case, the respondent's submission is "merely potential prejudice" (Transcript, Vol. 1, p. 46). She pointed out that the potential prejudice alleged was similar to that in Kodellas, supra, Douglas, supra, and Nisbett, supra: disruption to personal life, inability to locate potentially relevant witnesses and fading recollections.

64The Commission pointed out that no direct evidence of personal disruption had been put before me and noted that Mr. Fitzmaurice had reported that Mr. Latif was surprised to hear from the Commission because he thought the matter was over. This, it was submitted, undermined any inference that Mr. Latif was experiencing a great deal of anxiety and disruption. I am unwilling to infer the disruption alleged by the respondent but in any case, do not place a lot of weight on this point. I am much more concerned with prejudice to the respondent's ability to mount a full answer and defence.

65In Akthar v. Canada (M.E.I.), 1991 CanLII 13611 (FCA), [1991] 3 F.C. 32, the Federal Court of Appeal rejected a claim that delay in processing a refugee status application infringed s. 7 of the Charter. The Court held that the applicants were not in the same legal position as criminally accused persons because they were not charged or claimed against by the state in any way, but were making claims against the state. The Court continued (at p. 41):

Even in criminal cases, it is now clear that the mere fact of the passage of time will not justify a court in finding that there has been a denial of justice without taking into account all the other circumstances.

Reference was made to the Supreme Court of Canada decision in W.K.L. v. Canada, May 16, 1992 [unreported], in which Stevenson J. stated:

Does the Charter now insulate accused persons from prosecution solely on the basis of the time that has passed between the commission of the offence and the laying of the charge? In my view it does not . . . Pre-charge delay is relevant under ss. 7 and 11(d) because it is not the length of the delay which matters but rather the effect of that delay upon the fairness of the trial (see also Morin v. The Queen, S.C.C., March 26, 1992).

In Akthar, the Federal Court of Appeal went on [to] express the opinion that (at p. 42):

. . . any claim in a non-criminal case to Charter breach based on delay requires to be supported either by evidence or at the very least by some inference from the surrounding circumstances that the claimant has in fact suffered prejudice or unfairness because of the delay.

I note that even in Kodellas, supra, there is some ambivalence about whether actual or potential prejudice is required. I conclude on balance, that evidence supporting actual prejudice is required.

66To that end, I find the oft-cited decisions in Meissner v. 506756 Ontario Ltd. (1989), 1989 CanLII 9068 (ON HRT), 11 C.H.R.R. D/94, and Hyman v. Southam Murray Printing (No. 1)(1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 to be of continuing assistance in setting an appropriate standard of prejudice in remedial human rights proceedings. In Meissner, the Board of Inquiry pointed out (at D/95 [para. 6]):

It is clear from the preamble and scope of the Code that the public interest is central to the legislation. The public interest includes and transcends the interests of complainants and respondents. At the core of the public interest is the vindication of those rights identified by the Code as human rights.

In Hyman, the Board of Inquiry said (at D/621 [para. 5619]; see also Ghosh v. Domglas, supra; Gale, supra, at 13):

[W]hile unreasonable delay might be a factor to be taken into account in refusing or fashioning a remedy . . . or in weighing the persuasive . . . force or credibility of testimony or other evidence, delay in initiating or processing a complaint should not be considered a basis for dismissing the complaint at the outset of the proceedings before a board of inquiry unless it has given rise to a situation in which the board of inquiry is of the view that the facts relating to the incident in question cannot be established with sufficient certainty to constitute the basis of a determination that a contravention of the Code has occurred. Having been assigned . . . a statutorily defined task of undertaking an inquiry to ascertain certain facts, the board of inquiry should proceed to attempt to do so, notwithstanding the passage of time, unless the passage of time has made fulfillment of its task impossible. In the absence of such, admittedly unlikely circumstances, the proper course, in my opinion, is for the board of inquiry to proceed . . .

67Having reviewed the material placed before me, I do not find that actual prejudice has been established by the respondent. Certainly what suggestions of potential prejudice exist, fall far short of rendering impossible a fair hearing. It is an open question as to whether or not the recollections of witnesses have faded. The purported retraction by one of the Commission's witnesses appears to be only a retraction of the making of a statement rather than of its content. That witness appears to have a clear, if not absolute, recollection of events. In any case, as he is a witness for the Commission, loss of his evidence would prejudice only the Commission. It is entirely possible that company records for A-1 Collision no longer exist, but their relevance was asserted in relation to locating former employees as potentially relevant character witnesses. It is not clear that their evidence would supplement the character evidence already available to the respondent from witnesses identified by him and interviewed by Mr. Speranzini. The respondent identified only two relevant witnesses in his support [sic] to the Commission and himself stated that there was only one witness to the alleged incidents (Transcript, Vol. 1, pp. 204–5; Exhibit No. 6, at p. 7). There is an extraordinarily unclear reference to possible evidence in relation to an insurance claim but I cannot make any assessment of the nature, role, or importance of any such evidence, or even that it exists at all. There is no evidence of witnesses being unavailable to give evidence before the Board of Inquiry.

68For all of these reasons, had a s. 7 right been established, I would find that the argument as to prejudice to the respondent had not been sustained and that there was no breach of fundamental justice. For completeness, I note that as the corporate respondent has been dissolved, the effect of a stay in relation to the individual respondent would leave the complainant with no effective recourse or remedy.

Issue 2: Would proceeding with the hearing be in breach of the principles of natural justice?

69In Motorways Direct Transport Ltd. v. Canadian Human Rights Commission, Federal Court, Trial Division, File T-29-91, April 22, 1991 [now reported 1991 CanLII 13186 (FC), 16 C.H.R.R. D/459], Madame Justice Walsh issued a writ of certiorari to quash a decision made by the Canadian Human Rights Commission to proceed with an investigation of a complaint. The application was based on delay by the Commission in undertaking the investigation. The judge accepted that evidence showed that the applicant had suffered severe prejudice by reason of the delay. Being a corporation, no rights under s. 7 of the Charter could be asserted (see Irwin Toy v. Quebec, 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927 at 1004). Walsh J. referred to the criteria for assessing delay which were set out in Kodellas, supra, and stated (at p. 16 [D/469, para. 26]):

Without relying on section 7 of the Charter, however, it appears to me that the criteria set out in Kodellas as to what is an unreasonable delay are also applicable in considering the duty of fairness.

She applied this criteria and concluded that natural justice would be breached should the delayed investigation continue.

70The respondent relied upon Motorways, supra (and Harvey, supra), to support the proposition that unacceptable delay deprived him of his inalienable right to make a full answer and defence to the complaint against him and constituted a breach of natural justice.

71I do not find the reasoning in Motorways, supra, to be particularly helpful. In Ghosh v. Domglas, supra, Board of Inquiry Hubbard expressed concerns with which I agree (at p. 10 [D/19–D/20, para. 27]):

With all respect, I have some difficulty in reconciling [the argument of Walsh J. in Motorways] with Kodellas. Although a corporation cannot avail itself of the rights conferred by s. 7 of the Charter, there does not appear to be any reason to refuse to extend to it the protection afforded by the rules of natural justice. If that is so, the question then becomes whether the unreasonable delay (at least as it is determined by the Kodellas criteria) is per se a breach of . . . natural justice and therefore, independently of s. 7, constitutes a basis on which to stay the proceedings, or it is not. If it is, it seems odd that the Court of Appeal in Kodellas refused to stay the proceedings against the corporate respondent despite the breach of natural justice which (ex hypothesi) it must have found. If it is not, then the argument is impaled upon the invalidity of its first premise.

The distinction between a s. 7 inquiry and an inquiry into natural justice appears to be significantly blurred in Walsh J.'s reasoning in Motorways. I prefer to find, as submitted by the Commission, that the requirements of natural justice extend to issues of procedural unfairness with respect to any decisions or proceedings by the Commission.

72The respondent was informed of the complaint against him. He was sent material on which decisions might be taken and was given the opportunity to reply. There is evidence of considerable input by the respondent prior to the final investigation report being submitted to the Commissioners. I think there is no sustainable suggestion of procedural unfairness by the Commission. Fairness required that the respondent know the case against him and it is clear that he did. In the result, I would find that there has been no breach of the requirements of natural justice.

DECISION

73As the answer to both issues 1 and 2 is "no," I need not go on to consider whether the proceedings should be stayed indefinitely as an abuse of the process of the Board of Inquiry, pursuant to s. 23 of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484 ("S.P.P.A.") or s. 24 of the Charter. In my decision they should not. The complaint should not be stayed or dismissed for delay and the respondent's motion is dismissed. The hearing on the merits of the complaint will go forward.