Findlay v. Mike's Smoke and Gifts (No. 1), 1993 CanLII 16430

Findlay v. Mike's Smoke and Gifts (No. 1)

1993-04-27

Ontario Board of Inquiry

Pat Findlay and Marty McKay Complainants

v.

Mike's Smoke and Gifts and Soon Hwan Kim, Jug Mart and Four Star Variety Respondents

Dates of Complaints: April 13 and 15, 1988 Date of Decision: April 27, 1993 Before: Ontario Board of Inquiry, Ruth Hartman, Loretta Mikus and Frederick Zemans Comm. Decision No.: 513

Appearances by: Reva Landau, Counsel for the Complainant P. Findlay Geri Sanson, Counsel for the Ontario Human Rights Commission Walter Fox, Counsel for the Respondent Mike's Smoke and Gifts Peter Israel, Counsel for the Respondent Four Star Variety Aubrey Golden, for Playboy Enterprises Inc. Sheila Block and E. Polak, for the Canadian Civil Liberties Association

PARTIES — BOARDS OF INQUIRY/TRIBUNALS — authority of board/tribunal to order added parties — definition and rights of added parties — added parties distinguished from amici curiae — intervener status for amici curiae and for interested party — PUBLIC INTEREST — party status in sex discrimination inquiry supports public policy

Summary: This is a preliminary decision in the case of complaints made by P. Findlay and M. McKay. These complaints allege that the respondents discriminate against women with respect to public services by displaying and selling pornographic magazines in neighbourhood convenience stores.

Because of the nature of the inquiry, the Board of Inquiry gave notice of the hearing and invited persons or organizations with an interest in the issues raised by this complaint to apply for interested party status. A total of thirty-one applications were received from organizations with a variety of perspectives and interests in the case including the Women's Group Against Pornography, the Ontario Korean Businessmen's Association, and the Canadian Writers' Union.

The Board of Inquiry decides that the Code does not allow the applicants to be given full party status, which would include the right to present evidence and cross-examine witnesses. The Board of Inquiry finds, however, that the applicants can and should be granted intervener status with the right to make argument and submissions after the evidence and testimony of the parties is entered.

The Board leaves open the possibility that interveners may be allowed to present evidence after the parties have presented their case, should there be issues that have not been adequately explored.

[Ed. Note: See also 1993 CanLII 16454 (ON HRT), 21 C.H.R.R. D/15, 1993 CanLII 16461 (ON HRT), 21 C.H.R.R. D/19 and 1994 CanLII 18437 (ON HRT), 21 C.H.R.R. D/42.]

CASES CITED

American Airlines, Inc. v. Canada (Competition Tribunal) (1988), 1988 CanLII 9456 (FCA), 33 Admin. L.R. 229 (F.C.A.): 13

Leshner v. Ontario (No. 1) (1991), 1991 CanLII 13134 (ON HRT), 16 C.H.R.R. D/175 (Ont. Bd.Inq.): 13

Simms v. Ford Motor Co. of Canada (June 4, 1970), (Ont. Bd.Inq., Krever) [unreported]: 14

Sinclair v. Peel Non-Profit Housing Corp. (No. 2) (1989), 1989 CanLII 9069 (ON HRT), 11 C.H.R.R. D/342 (Ont. Bd.Inq.): 13, 16

LEGISLATION CITED

Ontario

Human Rights Code, 1981, S.O. 1981, c. 53 s. 38: 10 s. 38(1): 8 s. 38(2): 9 s. 38(3): 9

Rules of Civil Procedure r. 13: 7, 11 r. 13.02: 18

AUTHORITIES CITED

Muldoon, Paul and David Scriven "Intervention as Added Party: Rule 13 of the Ontario Rules of Civil Procedure" (1985) 6 Advocates' Q. 129: 7

Scriven, David and Paul Muldoon, "Intervention as Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure" (1985–86) 6 Advocates' Q. 448: 7, 12

INTERIM DECISION

1A board of inquiry was appointed on January 12, 1993, by the Minister of Citizenship, the Honourable Elaine Ziemba, in respect of complaints against three variety stores and one individual alleging that by displaying and selling certain magazines in stores that offer a general service to the public create[s] an environment which is hostile to and discriminates against women. The complainants allege that their right to equal treatment with respect to services, goods and facilities has been infringed because of their sex, in violation of ss. 1 and 8 [of] the Human Rights Code, S.O. 1981, c. 53, as amended.

2At the preliminary hearing, held on February 8, 1993, it was agreed by all parties present and their counsel that a notice of hearing inviting applications for interested party status with respect to this Inquiry would be advertised in the Ontario press. It was further agreed that the notice would contain the substance of the complaints and be reviewed by the parties or their counsel prior to publication.

3Notice of hearing was published as follows:

ONTARIO HUMAN RIGHTS BOARD OF INQUIRY

Notice of Hearing

Notice is hereby given that a Board of Inquiry has been appointed pursuant to s. 38(1) of the Ontario Human Rights Code to hear a group of complaints alleging infringement of the right to equal treatment with respect to services, good[s] and facilities, without discrimination [on] the basis of sex, in violation of section 1 and 8 of the Code.

The complaints alleges [sic] that the display and sale of magazines described as "pornographic" and as featuring a "stereotypical and demeaning portrayal of women" in neighbourhood convenience store offering a general service to the public, creates a negative and hostile environment for women and discriminates against women.

Notice is hereby given to any person or organization which may have an interest in the issues raised by these proceedings, that they may apply to the Board of Inquiry for interested party status by sending notice of their application to the Registrar by Thursday, March 18th, 1993. Applications must set out, with reasons, why status should be granted and the degree of participation sought. Each applicant will be given the opportunity to present their application orally to the Board at the hearing on April 1st, 1993, commencing at 10 o'clock in the morning at Hearing Room #1, 151 Bloor Street West, 10th Floor (Ontario Highway Transport Board), Toronto. After hearing oral submissions by the applicants and other parties to these proceedings, the Board will rule on the applications for interested party status.

Written applications for interested party status, and requests for further information regarding this hearing, should be addressed to Daniel E. Pascoe, Registrar, Boards of Inquiry Office, 150 Eglinton Avenue East, Suite 205, Toronto, Ontario M4P 1E8; (416) 314-0005 (telephone); (416) 314-0025 (fax).

4On or before March 18, 1993, twenty-seven applications were received by the Registrar and at the April 1 hearing, three further applications for interested party status were presented. Thus, a total of thirty-one individuals, groups or corporations requested the right to participate in this Inquiry. Many applicants requested the opportunity to testify on behalf of the complainants and the Commission. Organization[s] such as PorNo, Women's Group Against Pornography, Canadian[s] Concerned About Violence in Entertainment, Coalition for the Safety of our Daughters, and Canadians for Decency are groups concerned about the issue of pornography and have requested an opportunity to present either oral or written submissions stating their opinions or research about the issues before this Inquiry. Similarly, there were applications from groups such as the Canadian Printing Industries Association, the Book & Periodical Council, the Canadian Booksellers Association, the Periodical Writers Association of Canada, and the Writers' Union of Canada who wished to participate and to present oral or written argument to strengthen the respondent's case.

5A number of applicants for interested party status requested the right to take a more active role in the Inquiry. Playboy Enterprises Inc. applied to be added as a party to the proceedings. During his oral submission, Playboy's counsel agreed that amicus curiae standing would be a more appropriate role for his client. As well, the Canadian Civil Liberties Association requested amicus curiae standing including the right to participate in legal argument and to call evidence and to cross-examine witness[es], when considered appropriate. Metrac — Metro Action Committee on Public Violence Against Women & Children — asked for similar rights to participate in support of the complainants and the Commission. The Ontario Korean Businessmen's Association applied in writing and were represented on April 1, by Mr. Harry Kim. Mr. Kim expressed concern about the Korean small business people that are respondents in this Inquiry and asked for Association to have the right to take an active role in these proceedings.

6Counsel for all the parties to the complaint and the Commission agreed that important public policy issues appear to be at stake in this hearing and that all the applicants for interested party status have a serious interest in the outcome of these proceedings. What role should the applicants for interested party status be permitted to play? All parties to the Inquiry agreed that the applicants should be allowed to participate in an appropriate fashion. None of the parties or the Commission objected to the participation by any of the applications, but cautioned the Board that intervener participation should be clearly defined so as to assist in the determination of the issues before this Inquiry and [sic] but not to unduly prolong the proceedings.

7There are, in general, two categories of intervention. One is intervention as an added party and the other as an amicus curiae or friend of the court. The two types of interveners are analysed in two helpful early articles on the topic: Paul Muldoon and David Scriven "Intervention as Added Party: Rule 13 of the Ontario Rules of Civil Procedure" (1985) 6 Advocates' Q. 129 and David Scriven and Paul Muldoon, "Intervention as Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure" (1985–86) 6 Advocates' Q. 448. The authors are dealing with the Ontario Rules of Civil Procedure but what they say is equally applicable to tribunals such as this Board of Inquiry. They state (at p. 132):

The primary distinguishing feature between intervention as added party and as amicus, however, is the nature and extent of rights afforded to the successful applicant. The intervenor as added party is usually afforded all the rights and liabilities as possessed by the original parties to the proceeding. For example, those rights could include, inter alia, the right to file pleadings, present evidence, examine and cross-examine at trial, and argue and appeal an adverse ruling. An intervenor, as friend of the court, on the other hand, is granted a much different status. Technically speaking, an amicus is not a "party" before the court, but a "friend" for the purpose of rendering assistance to the court. As such, it is the court which determines the entire extent of the right afforded to the amicus which at a minimum would include the right to present written or oral argument. While the two type[s] of interventions are similar in that both provide a procedure for a "stranger" to become involved in the action, they serve different functions.

8This is not an appropriate case for adding any of the applicants as parties to the proceedings. Section 38(1) of the Human Rights Code, 1981 specifies the purpose of a board of inquiry:

38(1) The board of inquiry shall hold a hearing,

(a) to determine whether a right of the complainant under this Act has been infringed;

(b) to determine who has infringed the right and

(c) to decide upon an appropriate order under section 40.

9The Human Rights Code, 1981 sets out in s. 38(2) who may be parties before a board of inquiry:

38(2) The parties to a proceeding before a board of inquiry are:

(a) the Commission, which shall have the carriage of the complaint;

(b) the complainant;

(c) any person who the Commission alleged has infringed the right;

(d) any person appearing to the board of inquiry to have infringed the right;

(e) where the complaint is of alleged conduct constituting harassment under subsection 2(2) or subsection 4(2) or of alleged conduct under section 6, any person who, in the opinion of the board knew or was in possession of facts from which he or she ought reasonably to have known of the conduct and who had authority to penalize or prevent the conduct.

Parties can be added under subsection 3:

38(3) A party may be added by the board of inquiry under the clause (2)(d) or clause (2)(e) at any stage of the proceeding upon such terms as the [board] consider[s] proper.

10None of the applicants for interested party status should be made parties in the sense contemplated by s. 38. Only Playboy Enterprises Inc. requested full party status. Playboy's counsel agreed during the April 1 hearing that s. 38 does not provide for it or for that matter for any of the other applicants to be made full parties to these proceedings.

11If the applicants are not entitled to party status within s. 38, can they nonetheless be given intervener status as amicus curiae? Rule 13 of the Ontario Rules of Civil Procedure provides:

13.02 Any person may with leave . . . and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

12Canadian courts are fairly receptive to amicus curiae applications in "public interest" matters. Muldoon and Scriven set forth the criteria for a court's consideration (supra, p. 467):

(1) as a general rule, amicus interventions should be looked upon more favourably in cases involving matters of public interest than cases where only private rights are concerned.

(2) the characterization of "matters of public interest" should be made in a liberal and common sense fashion with the understanding that while on one hand almost every decision of the court affects the public in one way or another, any issues, even those couched in terms of private litigation, carry with them significant implications for the development and implementation of public policy and the public rights.

(3) as a general rule, interventions should be permitted only where the proposed applicants can demonstrate that they have a significant commitment to the matters that are represented in the issue presented, and

(4) as a general rule, interventions should be favourably considered where the issue to be argued is more likely to be understood in terms of the practical implications or impact or where the intervenor may bring to the exposition of the problem or to its solution a dimension or argument or experience or understanding which the court may find useful.

13Professor Martin Friedland in Sinclair v. Peel Non-Profit Housing Corporation (1989), 1989 CanLII 9069 (ON HRT), 11 C.H.R.R. D/342 allowed a number of groups to have intervener status as amicus curiae and to have limited rights of participation in an inquiry pursuant to the Ontario Human Rights Code. Similarly, the recent three-person tribunal in Leshner v. Ontario (1991), 1991 CanLII 13134 (ON HRT), 16 C.H.R.R. D/175 denied the request of the Great West Life Assurance Company to be added as party. The Board did allow the government's insurer for health and dental plans to have intervener status as a friend of the Board, to render assistance to the Board by way of argument. Reference was made by Professor Friedland in the Sinclair decision to Chief Justice Iacobucci's decision in the Federal Court of Canada in relation to the competition tribunal in American Airlines Inc. v. Competition Tribunal (1988), 1988 CanLII 9456 (FCA), 33 Admin. L.R. 229 at 237:

Courts and tribunals are masters of their own procedures. As a part of this principle, Courts have also been recognized as having an inherent authority or power to permit interventions basically on terms and conditions that they believe are appropriate in the circumstances.

14Professor Horace Krever, as he then was, in a human rights hearing, Simms v. Ford Motor Co. (1970) [unreported], refused to allow applicant unions to be added as parties, but stated:

In the result, I ruled that, at the termination of the evidence and after the parties had been given an opportunity [sic] make their submissions, the unions might be permitted to make representations . . . by way of submissions. The Board would have then have [sic] had the benefit of additional representations at a minimal cost in terms of time and pursuit of issue that were not entirely germane to the allegations contained in the complaint.

15Allowing all the applicants for interested party status full rights of participation would clearly lengthen the hearing (which will be a long one without the interveners) and might unduly shift the focus of the inquiry to matters that the interveners are interested in pursuing. These issues, while important, may be extraneous to the interests of the parties. Full participation to all the groups requesting interested party status would be unfair to the parties. Further, it is not clear at this stage what the issues will be in this potentially complex inquiry.

16We agree with Professor Friedland in the Sinclair decision, supra, where he states [at D/344, paras. 12–13]:

Inquiries under the Human Rights Code, 1981 by their nature involve serious allegations of discrimination that are very important to the complainant and the respondent, quite apart from the Commission's interest in the proceedings. The immediate parties, subject to the chair's rulings, should have control of the conduct of the case.

For example, appeal courts will normally be more inclined to allow interveners than trial courts. Royal Commissions and references, by their very nature, seek wide input from many organizations and interest groups. Inquests may be in a similar position. In each case the question is: what type of participation would be helpful to the tribunal in fulfilling its mandate.

In this case, the applicants for interested party status have considerable resources and empirical data with respect to many of the issues that may be canvassed and have demonstrated a serious interest in the outcome of the case. We recognize that the issues we may potentially consider could have an important effect on public policy in Ontario. We would find it helpful to have the views of all the applicants at the conclusion of the case on the issues upon which we shall be called upon to determine.

17Written submissions can therefore be made by all the applicants for interested party status at the conclusion of the case and prior to the final arguments by the parties. At that time we will determine whether we would find it helpful to have oral argument from any individual or group on some parts of the submissions. If any of the applicants for interested party status wish to make written submissions with respect to any preliminary matters before this Inquiry, we are prepared to receive same and to determine whether we would find it helpful to have one or more interested parties participate in the oral argument with respect to a particular preliminary issue.

18We leave open the possibility that we will permit interested parties to call evidence at the conclusion of the Commissions' and complainants' cases and at the conclusion of the respondents' cases, if we conclude at that time that issues that we may have to deal with have not been adequately explored, and if the calling of further evidence will not prejudice the position of the parties. We note that Rule 13.02 of the Ontario Rules of Civil Procedure provides that a friend of the court may be given leave to intervene in civil litigation only by way of argument. Human rights inquiries should similarly restrict the participation of non-parties. We would rather encourage the interveners given amicus curiae standing to contact one of the parties to the Inquiry or counsel to the Human Rights Commission to discuss the possibility of giving evidence. We appreciate the interest shown by members of the public in this Inquiry and believe that this decision will effectively address the needs of the parties and of the applicants for interested party status.