Ontario Board of Inquiry
Richard Persad Complainant
v.
Sudbury Regional Police Force, Richard Zanibbi, D.B. McKay, Denis O'Neill, Inspector Watson, Inspector Lavoie and Doug Wuksinic Respondents
Date of Complaint: June 9, 1987
Date of Decision: July 31, 1992
Before: Ontario Board of Inquiry, M.L. Friedland
Comm. Decision No.: 456
Appearances by: Mark Hart, Counsel for the Commission Jack Braithwaite, Counsel for the Respondents
PROCEDURE — delay as abuse of process — stay of proceeding as remedy for undue delay in proceeding with complaint — COMPLAINTS — unreasonable delay in proceeding with complaint — CANADIAN CHARTER OF RIGHTS AND FREEDOMS — application of s. 7 (security of the person)
Summary: This is a board of inquiry decision on a preliminary motion made by the respondents to stay the proceedings because of the Ontario Human Rights Commission's delay in bringing on the hearing of the complaint.
The Board of Inquiry finds that s. 11(b) of the Canadian Charter of Rights and Freedoms, which entitles an accused person to a trial without unreasonable delay, and s. 7, which guarantees security of the person, are not applicable in human rights cases which are civil proceedings. These Charter provisions are only applicable in criminal cases where a person's liberty and security of the person are at stake.
In addition, the board of inquiry finds that while proceedings of a board of inquiry can be stayed pursuant to the Statutory Powers Procedures Act, this has been done in human rights cases only when it is determined that delay has made it impossible for a Board of Inquiry to discharge its duty to hear and decide on a complaint.
There is no evidence that it is impossible for the Board of Inquiry in this case to discharge its duty. Consequently the Board of Inquiry dismisses the motion.
Cases Cited
Bennett and British Columbia Securities Comm. (Re) (1991), 1991 CanLII 8199 (BC SC), 82 D.L.R. (4th) 129 (B.C.S.C.): 10
Cosyns v. Canada (Attorney General) (1992), 1992 CanLII 8529 (ON CTGDDC), 7 O.R. (3d) 641 (Div.Ct.): 10
Gale v. Miracle Food Mart (No. 2) (1992), 1992 CanLII 14232 (ON HRT), 17 C.H.R.R. D/495 (Ont. Bd.Inq.): 9, 12
Ghosh v. Domglas Inc. (No. 1) (1991), 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16 (Ont. Bd.Inq.): 10
Guthro v. Westinghouse Canada Inc. (No. 2) (1991), 1991 CanLII 13135 (ON HRT), 15 C.H.R.R. D/388 (Ont. Bd.Inq.): 12
Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577: 8
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.): 10
O.P.E.I.U., Local 267 v. Domtar Inc. (No. 1) (1988), 1988 CanLII 8877 (ON HRT), 10 C.H.R.R. D/5968 (Ont. Bd.Inq.): 12
R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, 59 C.C.C. (3d) 449: 7
R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.): 7
R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 581, 45 D.L.R. (4th) 235 (S.C.C.): 6
York Condominium Corp. No. 216 v. Dudnik (1991), 1991 CanLII 7224 (ON CTGD), 3 O.R. (3d) 360, 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 (Div.Ct.): 10
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: 4
s. 7: 5, 8
s. 11(b): 5
Ontario
Human Rights Code, 1981, S.O. 1981, c. 53: 6
s. 8: 7
s. 24(1): 5
s. 43: 7
Statutory Powers Procedure Act, R.S.O. 1990, c. S-22
s. 23: 4, 11
s. 23(1): 14
PRELIMINARY MOTION FOR A STAY OF PROCEEDINGS
1The respondents brought a preliminary motion to have the complaint stayed on the basis of unreasonable delay. The motion was heard by me at Sudbury on July 6, 1992.
2The complainant, Richard Persad, filed a complaint on June 9, 1987, against the Sudbury Regional Police Force and certain personal respondents alleging discrimination in employment on the basis of age, colour, race and ancestry. About a week later the complaint was served on the respondents. The Ontario Human Rights Commission proceeded with its investigation at a very slow pace. Eventually, a board of inquiry was requested and on April 27, 1992, the Minister appointed me to act as a board of inquiry to hear and decide the complaint.
3Counsel for the complainant frankly conceded that the delay in this case was solely the fault of the Commission. It was neither the fault of the respondents nor the complainant. The delay caused by the Commission, he acknowledged, could not be adequately explained.
4Counsel for the respondents sought a remedy for the delay under 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]; under s. 23 of the Statutory Powers Procedure Act (R.S.O. 1990, c. S-22); and under the common law.
THE CHARTER
5Sections 7 and 11(b) of the Charter were invoked and a remedy sought under s. 24(1). Section 7 provides:
- 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.
Section 11(b) provides:
- Any person charged with an offence has the right . . . (b) to be tried within a reasonable time.
And s. 24(1) provides:
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
6For s. 11(b) to apply, however, a person has to be "charged with an offence." A complaint under the Ontario Human Rights Code [S.O. 1981, c. 53] is not "an offence." It is not a criminal or quasi-criminal proceeding, nor is it a proceeding giving rise to penal consequences. As a result it is outside the scope of s. 11 (see Wigglesworth v. The Queen(1987), 1987 CanLII 41 (SCC), 45 D.L.R. (4th) 235 (S.C.C.)).
7Of course, if this had been a charge brought against the respondents for an offence under s. 43 of the Code (every person who contravenes [various provisions] is guilty of an offence and on conviction is liable to a fine of not more than $25,000), then s. 11(b) would clearly apply. In such a case, in the light of R. v. Askov(1990), 1990 CanLII 45 (SCC), 59 C.C.C. (3d) 449 (S.C.C.), and R. v. Morin(1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.), it would be difficult to argue that five years was not "unreasonable delay" which would lead to a stay of proceedings. But this is not a charge under s. 43. It is a complaint under s. 8 of the Act.
8Is s. 7 of the Charter applicable? In Irwin Toy Ltd. v. A.G. Quebec (1989), 1989 CanLII 87 (SCC), 58 D.L.R. (4th) 577 (S.C.C.) the Supreme Court of Canada held that s. 7 is not applicable to corporations and other artificial entities and the Sudbury Regional Police Force is clearly an artificial entity. Thus it cannot take advantage of s. 7.
9But can the individual respondents use s. 7 of the Charter in this case? Other Boards of Inquiry have not applied s. 7 to proceedings under the Human Rights Code. As Chairperson Backhouse stated in the recent Gale decision (Gale v. Miracle Food Mart, May 1992) [now reported 1992 CanLII 14232 (ON HRT), 17 C.H.R.R. D/495 at D/499, para. 20]:
[I]t appears that s. 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 and security of the person may be in jeopardy, and human rights proceedings which are essentially civil in nature.
10Other boards of inquiry and courts have taken a similar approach: see, e.g., Ghosh v. Domglas Inc. (November 1991, Hubbard [reported 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16]); Re Bennett and British Columbia Securities Commission (1991), 1991 CanLII 8199 (BC SC), 82 D.L.R. (4th) 129 (B.C.S.C.); Cosyns v. A.G. Canada (1992), 1992 CanLII 8529 (ON CTGDDC), 7 O.R. (3d) 641 (Div.Ct.); cf. Saskatchewan Human Rights Commission v. Kodellas(1989), 1989 CanLII 284 (SK CA), 60 D.L.R. (4th) 143 [10 C.H.R.R. D/6305] (Sask. C.A.). If punitive damages could be awarded under the Human Rights Code, then perhaps s. 7 would be applicable, but the Ontario Divisional Court has held that the award of punitive damages is not permissible under the Code (York Condominium Corp. v. Dudnik (1991), 1991 CanLII 7224 (ON CTGD), 3 O.R. (3d) 360 [1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406]).
Thus, I hold that s. 7 is not applicable in this case.
[STATUTORY POWERS PROCEDURE ACT](https://www.canlii.org/en/on/laws/stat/rso-1990-c-s22/latest/rso-1990-c-s22.html)
11The respondent argued that s. 23 of the Statutory Powers Procedure Act is applicable to stay proceedings because of delay. Section 23(1) provides:
23(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
12Earlier boards of inquiry have interpreted this section narrowly in the context of delay. In the Hyman case (Hyman v. Southam Murray Printing (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617), which has been followed by other boards (see Gale v. Miracle Food Mart (May 1992, Backhouse), supra; Gohm v. Domtar (1988), 1988 CanLII 8877 (ON HRT), 10 C.H.R.R. D/5968, Pentney); Guthro v. Westinghouse (August 1991, Gorsky) [now reported 1991 CanLII 13135 (ON HRT), 15 C.H.R.R. D/388]), Chairperson McCamus states (p. D/621 [para. 5619]):
[D]elay 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, by order of the Minister . . . 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 considerable time, unless the passage of time has made fulfillment of its task impossible.
13There is no evidence before me that such is the case here. It would be particularly unfair to deprive a complainant who has been without fault in bringing about the delay of potential compensation under the Code if the complaint is a valid one.
14A further argument is made by the respondents that the proceedings should be stayed on the basis of a common law power of abuse of process or on the basis of a common law right to fairness. In my view, these remedies are now subsumed in a case like this under s. 23(1) of the Statutory Powers Procedure Act.
Thus, the respondents' motion is dismissed.