Ontario Board of Inquiry
Alan Shreve Complainant
v.
Corporation of the City of Windsor and Jerry Hancock Respondents
and
Ontario Human Rights Commission Commission
Date of Complaint: August 13, 1986 Date of Decision: June 25, 1992 Before: Ontario Board of Inquiry, Robert W. Kerr Comm. Decision No.: 452
Appearances by: Alan Shreve, on his own behalf Mark Hart, Counsel for the Commission Patrick Brode, Counsel for the Respondent Corporation Leonard P. Kavanaugh, Counsel for the Respondent Jerry Hancock
PROCEDURE — adjournment to seek judicial review — BOARDS OF INQUIRY/TRIBUNALS — authority to rule in the first instance on questions within its jurisdiction — authority to rule on Charter issue — PUBLIC INTEREST — public policy, board/tribunal to proceed expeditiously as
Summary: This is a preliminary decision on a motion to adjourn a hearing before a board of inquiry pending judicial review of an application of one of the respondents.
The Board of Inquiry finds that the test to be applied is the "balance of convenience." The Ontario Human Rights Commission argues that the legal issues are best decided at first instance by the Board of Inquiry in any case, and therefore the Board should not adjourn. The Board declines to decide on the issue of its jurisdiction to rule on the legal issues presented in the judicial review application. It does not find that it lacks jurisdiction to deal with any of the issues; it does find, however, that some of the issues are appropriate ones for court determination since Charter questions are raised.
The Board finds, further, that the impact of the Board's decision on the complainant and the respondent is relatively equal. There is no assurance that either party can be adequately compensated in the event that the Board rules one way on the adjournment request, and the ultimate outcome of the case goes the other way.
In this circumstance, the Board finds that the public policy that a Board of Inquiry should proceed expeditiously is decisive. The requested adjournment has the potential of greatly increasing the length of time between the appointment of the Board and its decision. For this reason, the Board declines to grant the adjournment.
Cases Cited
F.W.T.A.O. v. Ontario (Human Rights Comm.) (1988), 1988 CanLII 4794 (ON HCJ), 10 C.H.R.R. D/5877 (Ont. Div.Ct.): 13
Latif v. Ontario (Human Rights Comm.) (1992), 1992 CanLII 14313 (ON CTGDDC), 17 C.H.R.R. D/198 (Ont. Ct. (Gen.Div.)): 13
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. 15: 15
Ontario
Human Rights Code, R.S.O. 1990, c. H.19: 10
s. 39(1): 21
s. 41(4): 28
s. 41(5): 21
s. 42(3): 12
DECISION ON MOTION FOR ADJOURNMENT
1The hearing of this matter commenced by way of a conference call on May 14, 1992, originally intended for the purpose of scheduling dates for the actual hearing. For the purpose of the conference call, counsel for both respondents entered appearances on a "without prejudice" basis. They advised me of their intent to initiate applications for judicial review of the proceedings prior to the appointment of the Board which, if successful, could have the effect of nullifying proceedings before the Board. The appearances of the respondents before me on the motion for adjournment were on the same "without prejudice" basis.
2I interpret the "without prejudice" qualification on the appearances of the respondents essentially as a notice and precaution that the appearances were not to be construed as any waiver of their rights for [the] purpose of their judicial review applications or for the purpose of any other objections that they might raise to the proceedings before the Board in this matter. For the record, I would simply note that, on the one hand, I regard the "without prejudice" condition on the appearances of the respondents as proper and effective for the intended purpose while, on the other hand, in the proceedings before me these appearances should be treated in the normal way for all other purposes.
3During the conference call, the respondents requested an adjournment pending the outcome of their intended applications for judicial review. It was my view that the issues entailed in such a motion for adjournment were too complex to be adequately addressed during the conference call. In addition, given the limited original purpose of the conference call, it would not have been fair to deal with such an issue on that occasion.
4I proposed to the parties that we schedule a one day hearing at an early date to deal with the question of adjournment. This took place on June 18, 1992. In the meantime, a judicial review application has been initiated by the respondent Hancock. Counsel advised during the June 18 hearing that a similar application has also been initiated on behalf of the respondent corporation, although formal notice of this has not been served upon me as of the time when I am writing this decision.
5At the June 18 hearing, the proceedings dealt with a motion for adjournment pending the outcome of the judicial review application of the respondent Hancock. This motion was supported by counsel for the respondent corporation. It is to be anticipated that the judicial review applications of both respondents will ultimately be dealt with together so that for practical purposes such an adjournment would also cover the disposition of the respondent corporation's application. It is further my understanding that the issues raised by the judicial review application of the respondent corporation are not sufficiently different from those raised by the respondent Hancock to affect my decision on the motion for adjournment. The motion for adjournment proceeded on the basis of the respondent Hancock's application for judicial review and is decided on that basis.
6Based on the submissions before me, I conclude that there are two aspects to the question of whether I should grant an adjournment in a case such as this. While the submissions of counsel were not in complete agreement as to how the legal standard should be framed, I do not see any difference in substance between the proposed formulations of the standard. The real dispute before me was over the application of the standard in the circumstances of this case.
7The first aspect of the legal standard relates to the legal merits of the judicial review application. It is not, of course, for me to decide the merits of that application in ruling on an adjournment. The test is whether there is a substantial issue that is appropriate for court determination. If there is, an adjournment may be appropriate to allow that issue to be decided in court prior to further proceedings by a tribunal such as this Board of Inquiry. Whether an adjournment will actually be granted in such a case depends on the second aspect of the test.
8The second aspect of the test involves a weighing of the justice and convenience as between, on the one hand, continuing the tribunal proceedings while the matter is before the courts and, on the other hand, delaying the tribunal proceedings pending the court decision. This is sometimes referred to as a "balance of convenience" test, while counsel for the Commission submitted that the correct test is whether an adjournment is just and convenient in light of the public policy in the statute. In my view, the public policy in the statute is one of the matters to be taken into account in any balancing of convenience in such a case. Thus, I do not think there is any real difference in application as between "balance of convenience" and "just and convenient in light of the public policy of the statute."
9With respect to the first aspect of the test, counsel for the Commission submitted that the judicial review application of the respondent Hancock was without sufficient merit to justify an adjournment. In part this went to the substantive merits, that is, whether the claims made in the application had any chance of success, but to a larger extent it involved the question of whether these issues were best decided by such court proceedings or by me in the course of these proceedings.
10Counsel for the Commission submitted that, under the scheme of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, issues arising in the course of a human rights complaint, once it is referred to a board of inquiry, are best dealt with by the board of inquiry and that the appropriate route to take such issues to judicial determination is by appeal from the board of inquiry decision. Against this, counsel for the respondent Hancock submitted that the present wording of the Code, in contrast to the wording prior to 1982, confers no general jurisdiction on a board of inquiry to decide questions of law and, hence, the issues of law in the judicial review application were not within my jurisdiction.
11In the event that the proceedings before me continue, I may face the question later whether I have jurisdictions to deal with particular legal issues similar to those raised by the judicial review application. I would prefer to decide any such question in the context of a specific issue and on the basis of fuller [sic] submissions than were made to this question on the motion for adjournment. Since I find it unnecessary to actually decide my jurisdiction on such questions in order to rule upon the motion for adjournment, I have not decided this jurisdictional question at this time.
12At the same time, I should make clear that I am by no means persuaded at this stage that I lack such jurisdiction. For one thing, while the former specific reference to the jurisdiction of a board of inquiry on questions of fact and law no longer appears in the Human Rights Code, s. 42(3) of the present Code still authorizes an appeal from a board of inquiry on any question of law or fact. This surely implies some jurisdiction in a board to decide such questions in the first instance.
13The judicial review application of the respondent Hancock raises a large number of legal issues. With respect to some of these issues standing by themselves, I would likely be persuaded by the submissions of counsel for the Commission that there is no substantial issue appropriate for court determination. For example, Latif v. Ontario Human Rights Commission (unreported Ont. Div.Ct. decision, March 11, 1992) [now reported 1992 CanLII 14313 (ON CTGDDC), 17 C.H.R.R. D/198] supports the conclusion that I would be in just as good, if not indeed better, position compared to the Divisional Court to deal in the first instance with the question of whether the delay in the processing of this complaint by the Commission had caused such prejudice to the respondents that the complaint should be dismissed. Similarly, F.W.T.A.O. v. Ontario Human Rights Commission (1988), 1988 CanLII 4794 (ON HCJ), 10 C.H.R.R. D/5877 (Ont. Div.Ct.), sufficiently clarifies the law as to the Commission's general obligation of fairness that this question now might be more conveniently dealt with by a board of inquiry in the first instance.
14With respect to many other issues in the judicial review application, however, I have no hesitation in concluding that, although I might well be able to deal with the same issues as a matter of jurisdiction, these are substantial issues which are appropriate for court determination. This applies in particular to the Charter aspects of the application.
15A human rights board of inquiry is established to bring a certain expertise in human rights issues to the adjudication of complaints. Apart from the possible transferability of this expertise to claims under s. 15 of the Charter [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], a board of inquiry can claim no similar competence with respect to Charter issues. Courts, on the other hand, are involved in Charter issues almost on a daily basis.
16Further with respect to remedy, the most that I could do to address a violation of the Charter rights of the respondent Hancock, if such occurred, is to dismiss the human rights claim of the complainant. If a court can provide no other remedy than this, in my view, our legal system is deficient.
17I would observe that there is no logical inconsistency in this case between the claim of the complainant that his human rights were violated by the respondent Hancock and the claim of the respondent Hancock that his Charter rights have been violated by the Human Rights Commission in its processing of that complaint. I cannot conceive of any way that it would be possible to accommodate both of these claims within a board of inquiry proceeding. A court, however, may be able to devise such a remedy.
18This leaves, however, the question of whether an adjournment pending such court proceedings is just and convenient, or supported by the balance of convenience, taking into account the public policy of the Human Rights Code. It is here that the decision becomes a difficult one.
19Looking first at the policy of the Code, there are two factors that seem particularly relevant in this case. First, there is the general objective of the Code to advance the cause of human rights. The process of public inquiry as the ultimate recourse to resolve a complaint of discrimination is one of the mechanisms to achieve this objective. Moreover, since it has been established that no general cause of action based on discrimination lies to the courts, a board of inquiry proceeding may be only remedial process available to a person whose human rights have been violated if the Human Rights Commission is unable to obtain a settlement of the matter. This argues in favour of having a board of inquiry proceed to a determination of the merits once appointed.
20On the other hand, the Charter is the supreme law of Canada. There is no reason to believe the Legislature intended proceedings under the Human Rights Code to operate in limitation of the Charter rights of those involved. Thus, the general objective of the Human Rights Code does not outweigh the claim of the respondent Hancock to protection of his Charter rights.
21The second policy consideration carries more weight. It is clear from ss. 39(1) and 41(5) of the Code that, once a board of inquiry is appointed, it should proceed expeditiously to conduct an inquiry and reach a decision. While it is my experience that these time constraints probably cause more delay than they avoid by complicating the process of appointing a board of inquiry, nonetheless the intent of the Legislature seems obvious.
22There is no doubt that an adjournment by me pending determination of a judicial review application will significantly extend the time involved in bringing this matter to an inquiry and decision. Apart from the time it takes for the Divisional Court to reach a decision, there is the possibility of appeals to higher courts. If the judicial review application is successful, of course, this delay will be moot but, should my appointment be upheld, the effect of the requested adjournment could extend the overall length of these proceedings by months or years. On the other hand, if I deny the adjournment, at least this phase of the process can be carried out with some regard to the legislative concern for expedition.
23Other factors to be weighed are the impact of adjourning, or proceeding, on the parties. The relevant interests here are those of the complainant and the respondents.
24The complainant personally submitted that the delay already encountered in this matter was none of his doing and has been a source of great frustration to him. This was not disputed. The impact of this upon the complainant is potentially most serious. This is particularly so because the requested adjournment would place the prospect of a resolution of the complaint into the unforeseeable future, whereas the delay up to this point may have been made somewhat bearable by the consideration that a resolution was always potentially just around the corner.
25Further, the requested adjournment would postpone any resolution of the complainant's rights indefinitely for the purpose of considering issues which are essentially irrelevant to those rights. As already noted, there is no logical inconsistency between the claims of the complainant and the respondent Hancock that their rights have been violated. The complainant is likely to find it extremely difficult to understand why the rights of the respondent Hancock deserve priority of consideration.
26There is equally no question as to the serious impact of proceeding with this complaint on the respondent Hancock. He will be subject, in the absence of an adjournment, to the cost, financial and emotional, of a hearing which is unlikely to be pleasant. If he is entitled to the relief requested in his judicial review application because of a violation of his Charter or other rights, this cost will have been undeserved.
27In purely material terms, the respondent appears to have more at stake in the proceedings before me than the complainant. The complainant has the assistance of the Commission in the carrying of the complaint, while the respondent bears the responsibility for any legal representation of his position. On the other hand, if the complainant wishes to be assured of legal representation of his interests in the judicial review application, the cost of legal counsel will fall on his shoulders. The possibility that he may not incur such a cost, whether as a matter of choice or because he is unable to do so, does not diminish the significance of this in the balance.
28On the compensation side of the ledger, to the extent that the respondent Hancock suffers hardship as a result of legal costs in this case, there is the possibility of a remedy by way of costs under s. 41(4) of the Code. That is only available in the event that the complaint is dismissed at some stage by me, however. There is certainly no assurance that the respondent Hancock can be adequately compensated for the impact on him if I deny the adjournment and he is later successful in his judicial review application.
29With respect to the complainant, he can presumably be compensated in purely financial terms in the event that I grant an adjournment and yet he is ultimately successful. I doubt, however, whether financial compensation can ever be adequate recompense for the frustration he will have experienced in the interim.
30In the final analysis, as between the impact upon the complainant and that upon the respondent Hancock, the balance of justice and convenience is relatively equal. There is no assurance that either can be adequately compensated in the event that I rule one way on the adjournment request and the ultimate outcome of the case goes the other way.
31To this point, I have not considered the impact on the respondent corporation. Financially, the impact is comparable to that on the respondent Hancock. Since a corporation has no feelings, the element of emotional cost is not present. Thus, I find the impact on it to be rather less than that upon the respondent Hancock. In the overall question of balance, I do not think the number of parties on either side makes any difference. The overall balance in terms of impact on the parties, therefore, remains as I have weighed it between the complainant and the respondent Hancock, that is, relatively equal.
32In the result, I find the public policy that a board of inquiry should proceed expeditiously to be decisive. In other respects the balance is relatively equal. The requested adjournment has the potential of greatly increasing the length of time between my appointment and decision, however. For that reason, I will not grant this adjournment.
33The statute does not, of course, compel this result since there are no actual time limits on the period from the initiation of the hearing to its conclusion. In denying the adjournment, I am exercising my discretion in light of what I interpret to be the legislative intent.
34I realize that the effect of this decision may be that two separate proceedings involving this matter will be going on at the same time. This does not, however, give rise to most of the normal objections to duplication of proceedings. The rights at issue in the two proceedings are quite separate. I have already noted that the two claims are not logically inconsistent with each other. In the event that the claim of both the complainant and the respondent Hancock are justified, it may be that the only way both can be adequately remedied is by such separate proceedings, given the respective jurisdictions of courts and boards of inquiry. This would, of course, necessitate some court remedy other than an order prohibiting the proceedings before me.
35At the same time, I hasten to add that the possibility does exist that, as a board of inquiry, I ought to dismiss the complaint on the basis of submissions the same as or very similar to those to be made by the respondent in their applications for judicial review. My comments as to how those issues might be decided are intended only within the context of my consideration whether these judicial review applications involve substantial issues which are appropriate for court determination, and whether, if they do, I should adjourn these proceedings sine die. I have not addressed my mind to how I should actually decide such issues if they are presented to me for decision.
36The motion for adjournment sine die is denied. At the close of the hearing, I adjourned the hearing to November 23, 1992, subject to my decision on the motion for adjournment. In light of my decision, the adjournment to November 23, 1992, is confirmed. The parties will receive notice of the venue and hour of the hearing on that date in due course.