A-1 Collision and Auto Service v. Hall (No. 1), 1992 CanLII 14286

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

1992-07-31

Ontario Board of Inquiry

Anita Hall Complainant

v.

A-1 Collision and Auto Service and Mohammed Latif Respondent

Date of Complaint: July 24, 1990

Date of Decision: July 31, 1992

Before: Ontario Board of Inquiry, T. Brettal Dawson

Appearances by: Cathryn Pike, Counsel for the Ontario Human Rights Commission Russell Juriansz, S. Margot Blight and Paul Schabas, Counsel for the Respondents

BOARDS OF INQUIRY / TRIBUNALS — EVIDENCE — access to settlement negotiation documents by board/tribunal prior to hearing — resignation of board/tribunal — JURISDICTION — loss of jurisdiction due to reasonable apprehension of bias — PUBLIC INTEREST — encouragement of settlement of complaint as public policy

Summary: This is a decision by a Board of Inquiry appointed to hear and decide a complaint against Mohammed Latif on the issue of apprehension of bias. The apprehension of bias arises because, in the course of judicial proceedings, the Board became apprised of the contents of settlement negotiations between the Commission and Mr. Latif.

Mr. Latif brought a motion in the Ontario Court (General Division) to prevent the Board of Inquiry from proceeding on the grounds that the Commission had caused a lengthy delay because of its handling of the case and had also initially failed to endeavour to settle the complaint (Latif v. Ontario (Human Rights Comm.)). The Divisional Court found this motion premature and referred the matters back to the Board of Inquiry for its initial decision. In the course of these judicial proceedings, however, the Commission presented evidence that settlement negotiations were undertaken and it included in court documents the contents of the settlement discussions. The documents were transmitted as a matter of courtesy to the Board of Inquiry, T. Brettell Dawson, and read by her.

Before the Board of Inquiry the respondent now argues that the Board should not hear and decide the complaint because she has been privy to information about settlement discussions which the Code indicates clearly should not be before a Board.

Ms. Dawson decides to step aside as the Board of Inquiry in this case. She finds that there is a strong public policy interest in encouraging settlements and that this policy goal can only be reinforced if adjudicators are not privy to information disclosed during settlement discussions. The Board finds that there are times when a Board of Inquiry could properly have access to information flowing from settlement negotiations, such as when the parties agree to waive the right to keep settlement discussions confidential, or when the existence of a settlement is directly in issue.

In this case, the Board finds that it was not necessary to reveal the contents of the settlement discussions in order to satisfy the court that efforts to settle were made. The Commission could have established that the efforts were made without revealing the details of them.

The Board grants the respondent's motion and steps aside as the Board of Inquiry.

[Ed. Note: See also related decisions Hall v. A-1 Collision and Auto Service (No. 2) (1992), 1992 CanLII 14233 (ON HRT), 17 C.H.R.R. D/204 (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

Daintrey (Re), Ex parte Holt, [1893] 2 Q.B. 116: 22

Field v. New South Wales (1957), 99 C.L.R. 285: 20

Gritton v. T.C.C. Beverages Ltd. (August 14, 1989), (Ont. Bd.Inq., Gorsky) [unreported]: 23

Guthro v. Westinghouse Canada Inc. (No. 1) (1990), 1990 CanLII 12503 (ON HRT), 15 C.H.R.R. D/158 (Ont. Bd.Inq.): 23

O.P.E.I.U., Local 267 v. Domtar Inc. (No. 5) (January 20, 1988), Comm. Decision No. 331 (Ont. Bd.Inq., Hubbard) [unreported]: 29

Sinclair v. Peel Non-Profit Housing Corp. (No. 1) (1989), 1989 CanLII 9075 (ON HRT), 11 C.H.R.R. 341 (Ont. Bd.Inq.): 25

William Allan Real Estate Co. v. Robichaud (1986), 17 C.P.C. (2d) 138: 17

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.): 18

York (County) v. Toronto Gravel Road and Concrete Co. (1882), 3 O.R. 584; aff'd (1885), 1885 CanLII 12 (SCC), 12 S.C.R. 517: 17

Legislation Cited

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

s. 29: 16

s. 33(1): 13, 16

s. 41(3): 13

s. 41(5): 31

Rules of Civil Procedure, r. 49.06(2): 14

Authorities Cited

Keene, Judith, Human Rights In Ontario (Toronto: Carswell, 1992): 33

Sopinka, John, The Law of Evidence in Canada (Toronto: Butterworths, 1992): 19

INTRODUCTION

1The individual respondent, Mr. Mohammed Latif, has brought a preliminary motion requesting that I step aside as the Board of Inquiry with respect to this complaint because of the disclosure to me of the substance of settlement negotiations between him and the Human Rights Commission (the Commission). I should note that the corporate respondent is no longer in existence having been dissolved on March 5, 1990, for default in complying with the Corporations Tax Act. It is taking no part in these proceedings. References to the respondent in these reasons, then, refer to the individual respondent only.

2It is not disputed that detailed settlement information was put before me by the Commission, albeit in documents prepared in the context of a judicial review application made by the respondent to the Divisional Court. Nor is it disputed that I have in fact read this information. What is in issue is whether my knowledge of the settlement discussions renders it inappropriate for me to continue to act as a board of inquiry with respect to the merits and accordingly, whether I should step aside from so doing. This motion, and indeed the disclosure of the settlement information, arises out of a complex factual background which has arisen to this stage of the complaint. For clarity and convenience, I will briefly outline this factual background.

FACTUAL BACKGROUND

3In 1985, the complainant was employed by the corporate respondent, A-1 Collision. She alleges in her complaint, originally filed on July 16, 1985, and amended on July 24, 1990, that during her employment, the individual 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). On 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, counsel for the individual respondent raised an objection to my jurisdiction to act as a board of inquiry 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.

4It was agreed that this objection to jurisdiction because of delay would be argued at the outset of the hearing as a preliminary motion. Prior to the hearing, however, the respondent communicated his intention to abandon this motion before me and to proceed directly to the Ontario High Court on the matter. By consent, the hearing dates before me were adjourned and the respondent's application for judicial review with respect to delay was transferred to the Ontario Divisional Court. The Ontario Attorney General intervened as of right in the Divisional Court 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.

5The respondent argued that the Commission had lost jurisdiction in this complaint because of its delay and because of its failure in the initial investigation to endeavour to effect a settlement (Respondent's Factum, Preliminary Exhibit No. 1, at para. 18). As well as offering constitutional argument on the motion, the Attorney General requested that the respondent's motion 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 in the first instance.

6A 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. A preliminary indication was also given that a motion requesting me to step aside might be brought. Contemporaneously, 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.

7In the course of the proceedings before the Divisional Court and the leave application to the Court of Appeal, the respondent and the Commission each prepared written arguments and assembled application records in support. A range of documentary material, including copies of the original and amended complaints, various versions of the Commission's case summary with respect to the complaint and correspondence, were part of these application records. A number of affidavits were also included and at least two of these affidavits were the subject of cross-examination in preparation for the substantive argument of the motion before the Divisional Court. The Commission served me with copies of its application records and factums. I also received copies of the respondent's factums.

8Counsel agree that, as a general principle and professional courtesy, the transmission of this kind of material to me, and my perusal of it, was appropriate.

9At the commencement of the hearing in person before me on July 3, 1992, the respondent argued his motion on delay. The 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. Fitzmaurice, who had represented Mr. Latif in his later dealings with the Commission (Exhibit No. 4), and Mr. Speranzini, a Human Rights Officer working with the Commission's legal unit (Exhibit No. 5). These affidavits were included in the Court of Appeal application record and had been present in the parties' Divisional Court application records. Ms. Blight, as counsel appearing for the respondent, stated that no objection was taken to me hearing this motion and considering the material placed before me in support of it.

10Ms. Pike, as counsel for the Commission, expressed some reservation with respect to the inclusion of the affidavit of Mr. Speranzini and the transcript of his cross-examination on it. Her concern was based on the respondent's alternative motion that the disclosure of this particular material to me constituted grounds for me to step aside should the complaint not be stayed for delay. This reservation was withdrawn when I indicated that I had read the Commission's application record, including Mr. Speranzini's affidavit and, as such, new material was not being put before me.

11By letter dated July 16, 1992, I communicated to the parties my decision that the complaint should not be stayed for delay and I dismissed the respondent's motion on delay. I indicated that my written reasons for this decision would follow in August.

12When the hearing continued on July 28, 1992, Mr. Juriansz, as counsel for the respondent, brought a motion that I should step aside as a matter of public policy because of the disclosure of settlement information to me in Mr. Speranzini's affidavit.

13Unlike the motion respecting delay, which if successful would have resulted in a stay of the complaint, should I step aside as being unable to continue to exercise my powers as a board of inquiry, the commission may request that the Minister appoint a new board of inquiry (Human Rights Code, R.S.O. 1990, c. H.19, s. 41(3); the "Code"). I should point out that I refrain from detailing the nature of the settlement disclosure contained in Mr. Speranzini's affidavit and pursued in cross-examination on it to avoid causing any future problems. Suffice it to say that significantly more was related than simply that the statutorily mandated efforts at settlements (Code, s. 33(1)) were undertaken.

ANALYSIS

Public Policy

14The respondent argues that the disclosure of the substance of the settlement discussions offends against an over-riding public policy of ensuring the confidentiality of settlement discussions in order to promote settlement. Mr. Juriansz pointed out that settlement negotiations are generally subject to privilege and are not compellable or admissible evidence at a hearing. This public policy is said to rest on the importance of encouraging the settlement process and avoiding litigation. An illustration of the strength of this policy in civil litigation was given by reference to rule 49.06(2) of the Ontario Rules of Civil Procedure which provides:

where an offer to settle is not accepted, no communication respecting the offer shall be made to the court at the hearing of the proceeding until all questions of liability and the relief to be granted, other than costs, have been determined.

Mr. Juriansz argued that the possibility of disclosing unsuccessful settlement negotiations to the decision maker would have a chilling effect on the willingness of respondents to participate in the settlement process required in the Code. He argued that any offer to settle can be seen to implicitly involve some admission, and even where liability is explicitly denied, a public perception of wrong-doing may arise. In his submission, the public policy to foster settlement is a matter of general principle which should not be subject to determination in individual cases.

15In reply, the Commission argued that the public policy interest in encouraging settlement is not identical in civil and human rights proceedings. I understood the Commission's argument to be that, in civil law, it was necessary to create incentives and protections to encourage parties to enter into settlement negotiation. However, in the human rights context, where there is a statutory obligation to pursue settlement, the same system of protections and incentives to ensure settlement is considered, is not required. The parties will "come to the settlement table" in any case. The Commission, of course, accepted that under the Code it has a duty to endeavour to effect settlement.

16I do not agree with the Commission in seeking to distinguish civil and human rights litigation in this way. While it is true that there is a statutory obligation to seek settlement in s. 33(1) of the Code, I do not take this to weaken the protection given to settlement negotiations. The inclusion of a statutory obligation emphasizes the importance placed upon conciliation and settlement and the avoidance of litigation in the human rights context. The Commission has a public interest function to promote human rights in Ontario and is to act in a non-partisan manner during the investigation and settlement process. Moreover, the conciliation and settlement efforts of the Commission, arguably, are as much part of the Commission's function to promote and [sic] understanding and acceptance of, and compliance with the Code, as they are to avoid litigation (see Code, s. 29). I think it is also axiomatic that the success of settlement negotiations depends on the quality of participation by the parties to them. As the possibility of an adversarial proceeding before a board of inquiry always exists should settlement fail, participants would be most reserved if anything they propose or admit during settlement discussions could be introduced in the board of inquiry proceedings.

17The principle of exclusion of settlement discussions has been long established in Canada. In York County v. Toronto Gravel Road and Concrete Co. (1882), 3 O.R. 584; aff'd (1885), 1885 CanLII 12 (SCC), 12 S.C.R. 517, Proudfoot J. said:

The rule I understand to be that overtures of pacification, and any other offers or propositions between litigating parties, expressly or impliedly made without prejudice, are excluded on grounds of public policy.

And, in William Allan Real Estate Co. v. Robichaud (1986), 17 C.P.C. (2d) 138, Campbell J. held that the privilege arises if the communication is made for the sake of buying peace or to effect a compromise, without more: "what sensible [person] would attempt settlement if it could be used against [them]" (at 141).

18In the human rights context, obiter statements made by an Ontario Board of Inquiry in Dudnik v. York Condominium Corporation No. 216 (No. 2) (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325, at para. 69 are to a similar effect. The Board stated:

The objective of conciliation and settlement of the Code would be compromised if discussions and knowledge gained in that process could be [ . . .] divulged at a subsequent hearing. It is in the public interest that discussions as to conciliation and settlement take place and the Code requires the Commission's officers to "endeavour to effect a settlement" . . .This possibility is maximized if the discussions in the conciliation and possible settlement stage are without prejudice.

Accordingly I accept the general principle that settlement negotiations should not be disclosed when a matter proceeds to a hearing applies in human rights proceedings.

19Of course, exceptions to it exist, for example where there is fraud or coercion (See Dudnik, at para. 70; J. Sopinka, The Law of Evidence in Canada (Toronto: Butterworths, 1992). The prohibition on the decision maker becoming aware of the content of settlement discussions may also be waived. It also seems clear that in some circumstances consideration of the information by the decision maker may be necessary. In any of these situations, I would accept the propriety of settlement negotiations being before me.

Evidence in the Hearing

20The Commission made a second argument, which if accepted would take this situation outside of the scope or application of the evidentiary or public policy concerns. Ms. Pike argued that no evidence arising from the settlement negotiations would be in issue in the hearing. Nor would any attempt be made to base Mr. Latif's liability under the Code, if any, from express or implied admissions which may have arisen in the settlement negotiations. I note that in Field v. Commissioner for Railways for New South Wales (1957), 99 C.L.R. 285, the Australian High Court commented that the form of privilege by which settlement negotiations are excluded, is directed against the admission in evidence of express or implied admissions.

21In Ms. Pike's submission not only was this information not sought to be admitted in evidence, but no harm or prejudice would result to the respondent from it having become known to me in another manner. She pointed out that the information was made available only to resist a preliminary objection as to jurisdiction. It was made available in separate proceedings — i.e. the judicial review proceedings. The Commission suggested that I could "bracket" or disregard the information with respect to settlement and that it should have no impact on my determination of any issue of liability or remedy.

22An analogy was made to a voir dire, or other situations where a decision maker must make a determination of admissibility when a claim of privilege is made. In these contexts, a decision maker will often be required to consider the disputed evidentiary material and, if he or she decides that it is indeed irrelevant or inadmissible, must subsequently put it out of his or her mind. Re Daintrey, Ex parte Holt, [1893] 2 Q.B. 116 is authority, if one is needed, for the proposition that a decision maker may look at a document and its contents for the purpose of deciding the question of its admissibility.

23Another similar situation arises where the existence of an agreed settlement is in issue. In Guthro v. Westinghouse Canada Inc., Ontario Board of Inquiry (M.R. Gorsky), August 21, 1990, Decision 416A [now reported 1990 CanLII 12503 (ON HRT), 15 C.H.R.R. D/158], the respondent moved that the Board of Inquiry find that a settlement binding on the Commission, the complainant and the respondent had been concluded. Extensive evidence about the alleged settlement was introduced and discussed in the decision. In the result, the Board held that no binding settlement had been concluded. Subsequently, he went on to determine the complaint on its merits without any objection arising from his having considered settlement information. Likewise in Gritton v. T.C.C. Beverages Ltd., Ontario Board of Inquiry (M.R. Gorsky), August 14, 1989, the existence of a concluded settlement was first considered by the Board of Inquiry with detailed reference to the purported terms of settlement. Again, a finding was made that no binding settlement had been entered into and that the hearing should proceed on the merits.

24The respondent sought to distinguish Guthro and Gritton, supra, on the basis that the issue in those cases was the existence or not of a settlement and discussion of the settlement was necessary to the proceeding. The content of the alleged settlement was brought before the Boards by the respondents. The information was not brought forward without consent. And, no objection was taken in either case to its disclosure — that is, no claim of privilege (or its breach) was raised.

25Mr. Juriansz recognized that other documents placed before me, arising from the delay motion, contain extensive and potentially prejudicial background information on the investigation of the complaint. This is an inevitable consequence of Boards being asked to enquire into preliminary controversies such as delay (see Sinclair v. Peel Non-Profit Housing Corp. (No. 1)(1989), 1989 CanLII 9075 (ON HRT), 11 C.H.R.R. 341). Such material, while leaving the decision maker less than entirely "fresh" with respect to the evidence in the complaint, is nevertheless properly before a Board. It is also information which the Board of Inquiry should disregard when proceeding to the hearing of evidence and the determination of liability on the basis of that evidence.

26However, Mr. Juriansz urged that the settlement negotiations were of a different character and were protected by public policy which severely restricts their disclosure. In his view, there must be a good and sufficient reason for this kind of material to be released to a decision maker.

27I must say I have considerable sympathy for the Commission's argument that the settlement material related only to preliminary matters in the Divisional Court and would not be in issue before me at the hearing of the merits. It was not being introduced to establish express or implied admissions. There is no question of the Commission asserting that, because Mr. Latif had participated in settlement negotiations, he may be taken to have admitted that the complaint against him has merit. And it is true that the material was not made available to me in the course of evidence before me. No real objection has been made that my ability to decide the merits fairly has been compromised or that an apprehension of bias on my part has arisen as a result of me seeing this material.

28The issue comes down, as Mr. Juriansz urges, to the strength and scope of the public policy issue at stake. The fact remains that this information was made available to me. It was made available to me as a party to the judicial review proceedings but also, indivisibly, in my capacity as the Board of Inquiry. Moreover, the judicial review proceedings, while separate proceedings, arose from the complaint which I have been charged by the Minister to hear and those proceedings were part of the process of adjudicative resolution of the complaint.

29In Gohm v. Domtar Inc., Ontario Board of Inquiry (H.A. Hubbard), January 20, 1988, Document 331, an issue arose as to whether a board of inquiry should withdraw. The Board held an appointment in respect of another complaint against the same respondent, albeit in different employment in a separate location. That "first" complaint was in the process of being settled and one of the conditions of the settlement was that its terms not be disclosed to the Board of Inquiry in Ms. Gohm's complaints.

30The Board of Inquiry noted that the apprehension had been raised in the minds of counsel negotiating the settlement, that anyone who had been privy to the terms of settlement of the "first" complaint might be biased thereby in considering Ms. Gohm's complaint; hence the condition of non-disclosure. The Board of Inquiry also noted that in the process of approving of the proposed settlement, he would have to consider its terms. Thus, as the Board of Inquiry was the same person in each case, he was faced with a dilemma.

31As he had not seen the terms of the settlement at the time of writing, he could not assess whether there would be a reasonable apprehension of bias. Yet, because he considered it incumbent upon him to avoid jeopardizing the settlement of the "first" complaint, he exercised his discretion under s. 41(5) [then section 40(5)] of the Code to declare himself unable to continue to act as a board of inquiry.

32Now, it is clear that Professor Hubbard was concerned with the possibility that a reasonable apprehension of bias might arise in that case, and he was concerned to avoid prejudicing the settlement of a complaint. As such, the case has no direct relevance. But, what I notice about it and why I refer to it, is that Professor Hubbard chose to withdraw even though he had not yet seen the terms of settlement, even though those terms of settlement related to a separate complaint, and even though he could not assess whether the terms of settlement would have any possible prejudicial effect in the complaints made by Ms. Gohm. Moreover, the terms of settlement in the "first" complaint would clearly not have been in issue or in evidence in the Gohm complaints.

33Professor Hubbard's approach was entirely sensible given its context, but it also indicates caution with respect to the issue of knowledge of settlement discussions by boards of inquiry and great respect for the public policy of encouraging settlement where possible. I also note that in the recently published second edition of her book, Human Rights In Ontario (Toronto: Carswell, 1992), Judith Keene goes so far as to remark (at p. 260):

When the parties are convened at a conciliation meeting, they are advised that conciliation is commencing and that everything they say at this stage is privileged. No evidence discovered in the course of conciliation is ever led before a Board.

34Accordingly, I believe it would be unwise for me to rely too heavily on a distinction between my coming to know about the content of settlement discussions as "evidence" in the substantive hearing for the purpose of establishing "admissions" to the prejudice of the respondent, and my coming to know about the content of settlement negotiations in other ways and in the preliminary stages of the proceedings in which I am involved. I believe it is more sound to accept the general principle that disclosure of settlement negotiations at any stage of the proceedings (in the absence of fraud or coercion) should occur only where there is waiver of privilege (consent), where admissibility is in issue, where the existence of a settlement is directly in issue, or disclosure is otherwise necessary.

35While I am confident that I could bracket the settlement information (which is in any case quite ambiguous), I do not believe that I should do so independently of the context in which that information was made available to me. That is, I believe I should do so only if there was a good and unavoidable reason for me to have seen the settlement information.

36Thus, I must go on to consider the respondents' argument and the Commission's denial, that the disclosure of the information to me was unilateral and unnecessary and is grounds for me to step aside.

Unilateral and Unnecessary Disclosure

37The respondent argued that the communication of the settlement discussions to me was unnecessary. He emphasized that the privilege from disclosure rested in Mr. Latif, who did not consent to its release nor impliedly waive his privilege. Rather Mr. Juriansz suggests that the Commission took away this privilege by "blurting out" settlement details without consultation, consent, or justification.

38The Commission argued, in reply, that disclosure of the settlement information was made necessary by arguments raised by the respondent in his Divisional Court application. Having thus himself put settlement negotiations in issue, it should not lie in the mouth of the respondent to complain that details were disclosed.

39In the Divisional Court, the respondent argued that the Commission had lost jurisdiction because of a failure to pursue settlement. Certainly, the first version of the case summary indicated that "for practical reasons it was not felt to be worth the effort which it would entail to try to engage the respondent in settlement discussions." Had this been the final case summary, it could be speculated that such a statement would invite the argument that jurisdiction had been lost. Of course, the investigation had not then been completed and subsequent efforts at settlement rectified the potential problem without loss of jurisdiction.

40Ms. Pike argued, however, that because the respondent made the argument, it was necessary for the Commission to detail the efforts it made toward settlement and so lay an evidentiary basis to satisfy the Divisional Court that the Commission was not in breach of its statutory obligations. She argued that a terse statement asserting that settlement negotiations had taken place would likely have been insufficient to lay this evidentiary basis. I certainly agree that some response to the respondent's argument was required.

41Mr. Juriansz emphasized that his objection to the disclosure of the substance of the negotiations was not limited only [to] details of proposals but the fact that proposals might have been made, entertained, or responded to — in short, to the whole course of interaction and disposition in the negotiations. He argued that the detail provided was not necessary to establish that the Commission had fulfilled its statutory obligations. In his view, it would have been sufficient to have indicated that discussions took place.

42I tend to agree with Mr. Juriansz on this point. What was in issue was the fact of whether settlement discussions had taken place and not their substance. It would have been possible for dates of meetings or correspondence relating to settlement to have been given together with the rider that the details of what transpired were subject to privilege. It would then have been open to the respondent to dispute the fact of settlement negotiations having taken place or having been attempted. To the extent that the Commission may have been trying to show Mr. Latif's position with respect to the delay in the investigation, this too could have been done, albeit carefully, without detailing the course of negotiations.

43Ms. Pike expressed concern that if I decide to step aside in this situation, it would open a door to respondents wishing to unmeritoriously "get rid" of boards of inquiry. She suggested that all respondents would need to do would be to bring a judicial review application claiming default in efforts to settle a complaint, to which the Commission would be required to respond with details of the settlement process undertaken. The associated result would be disqualification of the decision maker.

44I believe this concern could be addressed in two ways. First, only rarely will it appear on the face of a case summary that efforts at settlement were not made. Only rarely should the issue arise in even a threshold manner. Secondly, I believe the response by the Commission to such an argument can be restricted to the fact of efforts to settle and need not include their content. The actual details might bolster the Commission's argument by indicating how creative and strenuous the efforts were — but I do not think this would be required to satisfy the Code requirements.

CONCLUSION AND DISPOSITION

45Having considered the arguments put before me, I have reached the conclusion that I must exercise my discretion to step aside. The disclosure of the substance of the settlement negotiations to me has rendered me unable to continue to act with respect to the hearing of the merits in this case. To do so would be contrary to public policy and would indeed deprive the respondent of his right, which he has not waived, to a decision maker who does not know the content of settlement negotiations.

46I make this decision with great reluctance. But I have concluded that the release of the information to me was both unilateral and unnecessary. I hope that the Commission will speedily exercise its discretion to request the Minister of Citizenship to appoint a new board of inquiry. I will write to the Minister informing her of my decision to withdraw and outlining the reasons for so doing. I should add that I believe that all references to the content of settlement negotiations should be removed from documents before the Board. Special consideration should be given to availability of the transcript of oral argument on this motion.

47In closing, I would like to emphasize that I believe that the Commission acted in a way that it considered legally necessary. In my decision I take a more cautious and restricted view than that taken by the Commission. I intend no criticism of the Commission, but I do hope that this situation need not arise in the future.