Jerome v. DeMarco (No. 3)

1993-05-21

Ontario Board of Inquiry

Mr. Jerome Complainant

v.

Dr. Paul DeMarco Respondent

Date of Decision: May 21, 1993

Before: Ontario Board of Inquiry, H.A. Bassford

Comm. Decision No.: 438A

Appearances by: M. Kaye Joachim, Counsel for the Ontario Human Rights Commission Harvey Strosberg and Edward Ducharme, Counsel for the Respondent

COSTS — costs arising from poor investigation of complaint by human rights commission — costs arising from respondent's bad faith in bringing complaint — INTERPRETATION OF STATUTES — definition of "bad faith" and "vexatious" — plain meaning rule

Summary: This is a decision regarding costs which follows a ruling of the Board of Inquiry which found that Dr. Paul DeMarco did not discriminate against Mr. Jerome by refusing to offer him dental services because he has AIDS.

In an earlier ruling, the Board of Inquiry found that Mr. Jerome claimed that he was refused service; he was offered dental services at the end of the day, rather than at the time of his initially scheduled appointment. The check-up and cleaning was postponed for health reasons because it was necessary for Dr. DeMarco to do the cleaning himself rather than the hygienist doing it. Because of increased susceptibility to periodontal disease, persons with AIDS require deeper cleaning which may involve curettage and local anesthetic. This cannot be done by a hygienist. Because Dr. DeMarco had previously scheduled appointments throughout the day, he was not available to do the cleaning himself until the end of the day.

Pursuant to s. 41(6) of the Ontario Human Rights Code, costs can be awarded when a complaint is dismissed where the Board of Inquiry finds that the complaint was trivial, frivolous, vexatious or made in bad faith; or undue hardship was caused to the person complained against.

The Board of Inquiry finds that Mr. Jerome acted in bad faith during the course of pressing his complaint. Dr. DeMarco claims that one of the ways in which Mr. Jerome acted in bad faith was by publicizing the complaint for politically motivated reasons. The Board of Inquiry finds that the mere fact of publicity is not evidence of bad faith. However, the Board of Inquiry finds that Mr. Jerome did act in bad faith because he did not tell the truth with respect to a point central to the complaint, that is that Dr. DeMarco did offer to treat him at the end of the day.

The Board of Inquiry finds that the Commission did not act in bad faith, but it did fail to investigate the complaint fully. The combination of Mr. Jerome's lack of veracity and the Commission's failure to investigate completely caused undue hardship to the respondent.

The Board of Inquiry awards costs on a solicitor-client basis to cover costs directly associated with the process of this Board of Inquiry. The total is not to exceed $80,000. If the parties are unable to agree on the amount, the Board of Inquiry will decide on disputed items.

[Ed. Note: See also (No. 1) (1991), 1991 CanLII 13178 (ON HRT), 15 C.H.R.R. D/335 and (No. 2) (1992), 1992 CanLII 14238 (ON HRT), 16 C.H.R.R. D/402 (reasons for decision).]

Cases Cited

Hyman v. Southam Murray Printing (No. 3) (1984), 1984 CanLII 5039 (ON HRT), 5 C.H.R.R. D/2254 (Ont. Bd.Inq.): 7

Jerome v. DeMarco (No. 2)(1992), 1992 CanLII 14238 (ON HRT), 16 C.H.R.R. D/402 (Ont. Bd.Inq.): 1, 48, 63, 65

Johnson v. East York Board of Education (No. 2) (1991), 1991 CanLII 13131 (ON HRT), 17 C.H.R.R. D/175 (Ont. Bd.Inq.): 75

Ouimette v. Lily Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19 (Ont. Bd.Inq.): 75

Pham v. Beach Industries Ltd. (1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 (Ont. Bd.Inq.): 7, 71, 75

Legislation Cited

Ontario

Human Rights Code, 1981, S.O. 1981, c. 53

s. 1: 1

s. 8: 1

s. 33: 43

s. 37: 1

s. 40: 4

s. 40(6): 2

s. 40(6)(a): 3

s. 40(6)(b): 3

Authorities Cited

Black's Law Dictionary, 5th ed. (St. Paul Minn.: West Publishing Co., 1979): 8

Keene, Judith, Human Rights in Ontario, 2d ed. (Toronto: Carswell, 1992): 4

1. INTRODUCTION

1This inquiry involves a complaint made by Mr. Jerome (the complainant) against Dr. Paul DeMarco (the respondent). The complaint, dated March 29, 1990, alleges discrimination in services on the basis of handicap, contrary to ss. 1 and 8 of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, as amended. I was appointed as a board of inquiry by the Minister of Citizenship, the Honourable Elaine Ziemba, in accordance with s. 37 of the Code. The initial hearing took place over eight days, commencing by conference call on April 8, 1991, and concluding on December 11, 1991. Counsel agreed at that time that submissions on costs, if appropriate, could be heard at a later time. In my decision, which was released on March 12, 1992 [reported 1992 CanLII 14238 (ON HRT), 16 C.H.R.R. D/402], the complaint was dismissed. Upon subsequent request by counsel for the respondent, leave was granted to hear the question of costs. Hearings on this matter were held on October 8, November 16 and 17, 1992.

2. PRELIMINARY MATTERS

2Counsel for the respondent made submissions for costs under s. 40 of the Code. That section reads as follows:

40 (6) Where, upon dismissing a complaint, the board of inquiry finds that,

(a) the complaint was trivial, frivolous, vexatious or made in bad faith; or

(b) in the particular circumstances undue hardship was caused to the person complained against,

the board of inquiry may order the Commission to pay to the person complained against such costs as are fixed by the board.

3Counsel for the respondent argued that the complaint was vexatious and made in bad faith, and that undue hardship was caused to the respondent. The following general considerations shall apply in examining each of these claims. First, as both counsel agreed, the burden of proof lies with the respondent, and is to be decided upon the balance of probabilities. Second, the language of the Code is clearly disjunctive, so that a finding on behalf of the respondent with respect to any of the disjuncts would provide a threshold for the board to exercise its discretion. Third, the board has discretionary powers even after a finding under ss. 40(a) or (b), and must in that situation still consider the general circumstances of the case in deciding whether or not to award costs.

4A further preliminary consideration was brought by counsel for the Commission, who argued it is the Commission itself, as opposed to the complainant, which must act in bad faith in order to attract costs pursuant to s. 4[0]. This was based upon (1) the claim that since the Commission ultimately must pay any costs, it is the Commission's conduct upon which any award should be based, and (2) an appeal to Judith Keene, Human Rights in Ontario, 2d ed. (Toronto: Thomson Canada Limited, 1992), p. 381, wherein she says, " . . . an award of costs under the first test in subsection 41(4) [R.S.O. 1990] will be made only when the Commission has acted in a way that is completely unjustified, in bringing a complaint."

5Against this position counsel for the respondent argued that the plain language of s. 40 does not refer only to the Commission's bad faith. The section does not qualify ”˜bad faith' by adding "by the Commission" nor ”˜undue hardship' by adding "by the Commission," although it specifically mentions the Commission at the end of the section as being responsible to pay any awarded costs. Counsel's position was (Transcript, v. 10, p. 144), " . . . the basic rule of statutory interpretation is that you read the statute in its plain and ordinary meaning, and you only get in to questions of engrafting if you cannot accept the plain and ordinary meaning of the word."

6I am persuaded that the language of the section is clear as written and does not refer only to bad faith on the part of the Commission. The complainant makes the complaint and provides evidence with respect to it during the investigation. The Commission investigates the complaint and has carriage of it before a board of inquiry. Bad faith can occur on the part of the Commission or the complainant during this process, in which case the board may find the complaint was made in bad faith and may then exercise its discretion to order the Commission to pay costs as fixed by the board.

7Support for this conclusion can be found in Pham v. Beach Industries Ltd.(1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 (Ont. Bd.Inq.) [at D/4022] para. 31796, wherein the Board states,

. . . if the complaint contained allegations that were known to the complainant or the Commission to be false, then that complaint would certainly seem to have been made in bad faith.

Further, in deciding not to award costs in Hyman v. Southam Murray Printing (1984), 1984 CanLII 5039 (ON HRT), 5 C.H.R.R. D/2254 (Ont. Bd.Inq.), the Board states ([at D/2267] para. 19128),

In the absence of evidence that the complainant has brought forward a complaint in bad faith or frivolously and in the absence of evidence that the Commission has discharged its mandate irresponsibly, it is my view that it would be inappropriate to make an award of costs.

For the present purposes, the contrary of this is to be noted: that if the complaint had been brought forward in bad faith, an award of costs may be appropriate.

8Before proceeding to consider the arguments as to facts it is appropriate to define the relevant terms. The interpretations of the terms ”˜vexatious' and ”˜bad faith' are those which have been used by previous boards concerning questions of costs and are taken from Black's Law Dictionary.

Vexatious. Without reasonable or probable cause or excuse.

Bad faith. The opposite of "good faith," generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfil some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. Term "bad faith" is not simply bad judgement or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.

Good faith. Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual's personal good faith is concept of his own mind and inner spirit and, therefore, may not conclusively be determined by his protestations alone . . . Honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry. An honest intention to abstain from taking any unconscientious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or belief of facts which render transaction unconscientious. In common usage this term is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation.

The definitions of ”˜undue' and ”˜hardship' are taken from The Compact Oxford Dictionary.

Undue. Not in accordance with what is just or right; unjustifiable; illegal [going beyond what is appropriate, warranted or natural, excessive]; not appropriate or suitable.

Hardship. Quality of being hard to bear; painfully difficult; a condition pressing unusually hard . . .

3. ARGUMENT OF RESPONDENT

9Counsel for the respondent based his position upon the actions of both Mr. Jerome and the Commission. He argued in the case of Mr. Jerome that his actions collectively demonstrate bad faith, in that they show he was motivated by ill will, acted with dishonest intentions, and was attempting to obtain an unconscionable advantage. He argued in the case of the Commission (Transcript, v. 9, p. 109) "that it's [sic] conduct was woefully inadequate, that it's [sic] conduct was biased and not evenhanded."

(i) Mr. Jerome's Bad Faith

10Four general claims were made with respect to Mr. Jerome's putative bad faith. (1) Mr. Jerome made oral allegations to the media (Transcript, v. 9, p. 77) "that were defamatory per se, slanderous when they were made and libellous when they were published by the media." Because he is impecunious normal checks and balances don't apply, which in part explains his recklessness. (2) Mr. Jerome had a collateral political purpose. (3) Mr. Jerome saw this as an opportunity to make money. (4) Mr. Jerome did not care whether in his "scenario" he harmed Dr. DeMarco. In pursuing these objectives he attacked Dr. DeMarco (Transcript, v. 9, p. 93)

in a manner that does not have the aim of creation of a climate of understanding and mutual respect for the dignity and worth of Dr. DeMarco. To the contrary, . . . he sets out a concerted attempt to attempt to destroy Dr. DeMarco's reputation and practice.

The numerous facts claimed in defence of this position are listed below.

11(a) The fundamental premise of Mr. Jerome's complaint has been found to be false. Counsel for the respondent submitted that it was intentionally false, or at least recklessness in terms of Mr. Jerome's conduct.

12(b) Mr. Jerome, as his previous record of demonstration against U.S. policy not to admit persons with AIDS shows, had a political interest and was prepared to make a public political statement.

13(c) He enjoyed publicity, as testified to by Ms. Kissner, and as demonstrated by his demeanour when giving evidence under cross-examination.

14(d) Mr. Jerome got three names from Dr. DeMarco, but his first three calls were to the television station and the newspaper. The[n] he went to the College and then later in the afternoon told Dr. DeMarco he was going to sue him. This conduct shows that in the office he was leading Dr. DeMarco on.

15(e) Mr. Jerome claimed (Transcript, v. 2, p. 131) he had nothing to do with having Mr. Randy Williams (his companion) calling Dr. DeMarco at 4:20 that afternoon to arrange an appointment. Any reasonable person would believe that Mr. Williams was put up to this. Ms. Kissner also testified to this effect. Jerome also helped Williams with his complaint to the College. The lie and the attempt to put Williams up is evidence of bad faith.

16(f) Mr. Jerome admitted that he was "playing politics" with Dr. DeMarco. This is shown in v. 2, p. 114 of the Transcript:

Q. And so what you were going to do is you were going to play politics with him, weren't you? You've got a nice smirk on your face, tell me isn't that — this isn't funny.

A. No.

Q. Isn't that what you were going to do?

A. No, no. Yes, I did admit to him that if he wanted to play politics with this we would play politics with this in whatever medium way responsible. [sic, possible]

Q. And so "we" meaning you and Mr. Williams?

A. No, "we" meaning me.

Q. "Me". So you decided that you were going to play politics, and that's why you did what you did? You called CBET and the Windsor Star newspaper —

A. Oh, yes. Yes. That was a very calculated political move on my behalf.

Q. And you did that before you even met with the Human Rights Commission officer?

A. True.

The making of the statement to the press before coming to the Commission implies that "the application to the Commission is part of the political process that he intends to implement" (Transcript, v. 9, p. 90). This is to use the human rights process for a collateral purpose.

17(g) Mr. Jerome was attempting to gain revenge rather than to attempt to foster a climate of understanding or dignity or self-worth (Transcript, v. 9, p. 95), as shown in his testimony (Transcript, v. 2, p. 137).

Q. And let's talk about Dr. DeMarco's anxiety and upset. Do you think that he felt that he was put upon and that he had been centred out and that he had been treated unreasonably by being double-barrelled by you and Mr. Williams on the same day?

A. I could see where he could feel that way, yes.

Q. And that you had cranked up the pressure — you could see where objectively one could say you really orchestrated some degree of pressure that you brought to bear, you brought the newspapers and television and the College and your significant other all to bear within an afternoon, that's what you did.

A. Yes.

Q. You gave it back in spades to Dr. DeMarco, didn't you?

A. I was just following my options.

Q. You gave it back to him in spades, didn't you?

A. You could interpret it that way, yes.

18(h) Mr. Jerome lied to Mr. Mushega (the investigating officer) in representing that Ms. Kissner said Dr. DeMarco discriminated against another person with AIDS. This is found in Mr. Mushega's testimony (Transcript, v. 8, p. 108).

Q. Well, didn't Mr. Jerome tell you that Ms. Kissner had said that there had been another person who Dr. DeMarco had refused treatment?

A. From my notes, yes.

Q. Yes. And when you spoke to Ms. Kissner she denied telling Mr. Jerome that?

A. That's correct.

19(i) Mr. Jerome "tailored his evidence in chief." He said Dr. DeMarco wor[e] a mask while speaking to him, and it was only in cross-examination that he admitted the mask was off during part of the interview.

20(j) Mr. Jerome admitted that by going to the media he made mediation impossible (Transcript, v. 2, p. 98).

Q. And that you didn't await an opportunity to see whether or not someone could mediate this problem in an amicable fashion, you put that beyond the pail [sic], didn't you . . .

A. I have my rights to do what I wish.

[Q]. You have your rights to do what you wish, but I am suggesting to you, sir, that if you were attempting to do what you told us this morning that you said to Dr. Friedl, that you were trying to see if this could be settled amicably, that you were putting that as a — you were making that an impossibility.

A. That's for the other party to interpret, not mine.

21(k) Ms. Kissner, although sympathetic, thought Mr. Jerome was overreaching. In response to the question of whether Mr. Jerome was enjoying the publicity, she stated (Transcript, v. 2, p. 197), "I don't know if he was necessarily enjoying what was happening, I think he was enjoying confronting the issue, that he was in his — he has a lot of skills and he was enjoying using those skills."

Q. He was enjoying articulating in front of people?

A. Using his own self advocacy skills.

Q. And this was a perfect vehicle for him to demonstrate those skills?

A. I think he saw it that way.

Q. And he was exploiting it for everything it was worth?

A. That's a judgement I'm not prepared to make.

Q. Did you think he was at the time?

A. I think Jerome wasn't being as objective as he could have been.

This is "as nice a way as you can put the fact that [Mr. Jerome] was . . . ”˜attempting to obtain an unconscionable advantage' " (Transcript, v. 9, p. 102).

22(l) Ms. Kissner testified in cross-examination that Mr. Jerome had talked to her about the $500,000 he wanted. In re-examination she said she could not remember whether he actually said $500,000 to her, "but I do remember Jerome speaking to me about the possibility of a financial, you know, compensation for this situation (Transcript, v. 2, p. 198). This shows that Mr. Jerome felt "he was going to get an awful lot of money from this . . . and was trying to obtain an unconscionable advantage because this was his chance to score (Transcript, v. 9, p. 104).

(ii) The Commission's Bad Faith

23Counsel for the respondent also made a number of arguments designed to show that the Commission compounded Mr. Jerome's putative bad faith through its desire for its first AIDS decision in Ontario, and its inadequate investigation. They are as follows.

24(a) Mr. Mushega said AIDS was a priority, and that he was supposed to finish the investigation in ten days.

25(b) Mr. Mushega did not get expert opinion in this AIDS related case, but decided in a medical context, without medical evidence as to what was proper procedure. This is so even though Mr. Mushega testified that he didn't understand how HIV became AIDS or how AIDS manifested itself in the mouth.

26(c) Mr. Mushega did not disclose that Jerome lied.

27(d) Mr. Mushega's report on conciliation attempts were misleading. First, Dr. DeMarco had originally offered a settlement of $200, a letter of apology, to post the Code, and a letter of assurance that he would continue to treat AIDS patients. At this time Mr. Jerome wanted $10,000 (the maximum award under the Code) for mental anguish, 500 hours of community service, and a letter "capable of being used" (Transcript, v. 9, p. 110). Mr. Mushega reported in the case summary that Mr. Jerome wanted $1,500, to which he never agreed. Second, Mr. Mushega agreed that Mr. Jerome's publicity of the case changed the dynamics of settlement and made a resolution impossible (Transcript, v. 8, p. 108). But in his case summary he did not put this forward fairly. There he said (Exhibit 46, p. 10):

CONCILIATION ATTEMPTS

Attempts to settle this matter were unsuccessful. The officer, having shared the evidence with respondent's lawyer, was informed by the latter that:

(1) the respondent had not violated the Code;

(2) no apology or any damages would be considered by the respondent as a means of resolving this matter.

The complainant had suggested a letter of apology and a sum of about $1,500, in general damages for mental anguish, from the respondent as a means of resolving this matter.

This is misleading, giving an overall impression that the lawyer for the doctor is intransigent, and leaving out relevant matters about settlement attempts and publicity.

28(e) Mr. Mushega was not objective, and became an advocate for Mr. Jerome. First, he was not willing to see the case resolved unless Dr. DeMarco admitted that he breached the Code (Transcript, v. 9, p. 101). But settlements are made without admissions of liability (e.g., Pham v. Beach Industries Ltd., supra). In a credibility context, this does not make sense. Second, Mr. Mushega knew (Transcript, v. 8, pp. 101–2) that it was going to cost Dr. DeMarco more than $1,500 to go to a board of inquiry and, because of this, unreasonably attempted to use the instrumentality of the state to gain this amount for Mr. Jerome.

29(f) Mr. Mushega did not leave his office to investigate this case. He did not use his power to examine documents such as the appointment book. He did not interview staff. He demanded an admission of liability when he had not got all the facts. The case summary says, "The preponderance of the evidence obtained indicates that the complainant's medical condition (AIDS) was a factor in his being refused a service (dental treatment)." This presupposes an investigation which was not done.

30(g) The Commission never considered medical evidence about treatment, but only about universal precautions. On the first day of the hearing, April 1991, counsel for the Commission stated (Transcript, v. 1, p. 21):

The Commission's position is that the discrimination occurred because Dr. DeMarco refused to treat Mr. Jerome at the time of his scheduled appointment, and there will be variations on that theme. If you put it in the starkest terms of if all DeMarco did was suggest that the cleaning be as the last appointment of the day, which we do not — the position we do not subscribe to, the Commission's position would be yes, that would still be discriminatory.

On July 4, 1991, Dr. Hardie's report was delivered, which says (Exhibit 22, p. 33):

HIV patients who have symptoms of decreasing immunologic capacity do require additional care. It is essential to consult with the attending physician for an assessment of the immunologic tolerance of the patient, information on prescribed medications, an idea of the patient's prognosis and current physical and mental status. These details are pertinent to the development of a safe and effective dental treatment plan.

This should have been the end of the second prong of the case. Medical evidence is the kind of evidence to muster before starting with a complaint against a professional, and not to do it is bad faith. If the Commission leaves the matter that any delay is prima facie discrimination, and then puts the onus on the doctor, then the Commission could bring every dentist who sees an AIDS patient before a board.

(iii) Undue Hardship

31Counsel for the respondent argued that undue hardship occurred in three ways: emotionally, financially, and by being publicly humiliated. The emotional and physical trauma is seen in the evidence given by Dr. DeMarco Sr. He lost weight, became depressed, tense, unable to sleep, moved to his parent's residence, lost consciousness and collapsed on their kitchen floor. The financial hardship was caused by losing income by having to close his office the afternoon of the incident and in order to attend the hearing. He has also incurred about $70,000 in legal expenses. Dr. DeMarco had no choice in order to defend his reputation except to hire senior counsel. The public humiliation came through Mr. Jerome's publicity of the matter.

4. ARGUMENT OF COMMISSION

32Counsel for the Commission argued against many of the particular points put by counsel for the respondent, and also that the respondent's conduct in not participating with the Commission's proceedings is responsible for proceeding to a board, so that it is not appropriate to award costs. She argued that the Commission was correct, given the evidence available to it, in considering the question of infection control as primary. Counsel addressed, in order, the questions of the Commission's bad faith, the vexatiousness of the complaint and Mr. Jerome's bad faith.

(i) Commission's Bad Faith

33(a) The first indication the Commission had of the evidence ultimately accepted by the Board was during the respondent's case in chief.

34(b) The decision notes on p. 6 Mr. Jerome's evidence found in the Transcript (v. 2, pp. 16–19). These comments are consistent with Ms. Kissner's testimony, with what the officer testified Dr. DeMarco said to him, and consistent to Dr. DeMarco's written response. This testimony is that the conversation was around universal precautions, and Dr. DeMarco's waiting to treat until he received proper procedures from Ms. Kissner, the Medical Officer of Health or his governing body, that Dr. DeMarco was tired of having all the AIDS patients referred to him, and that he was worried that blood and saliva could be absorbed into the newly painted walls of his office. If Mr. Jerome felt insulted and outraged by such comments, he had an honest belief in that.

35(c) Mr. Mushega's notes (Exhibit 46, pp. 85–81 [sic]) show that in the first contacts the respondent seemed "to not be disagreeing with Mr. Jerome's claim of what happened that day (Transcript, v. 10, p. 18). The officer's position on settlement had to be based upon the information he was getting from the two parties. Based on this Mr. Mushega advised that while the offered apology need not admit a breach of the Code, it couldn't deny it (Exhibit 46, p. 52).

36(d) Rather than being the complainant's advocate, Mr. Mushega considered some of the complainant's demands unacceptable, and indicated this view to the respondent.

37(e) The first indication in the Commission's file that Dr. DeMarco's position was that there had been a deferment, other than an indefinite deferment until he got further treatment protocols from the College, was in a telephone call from Mr. Strosberg on May 3 (Exhibit 46, p. 36).

38(f) What made this case a priority was not the Commission's desire to get a precedent, but the terminal nature of the condition (Exhibit 46, p. 34).

39(g) In Dr. DeMarco's respondent questionnaire, he says he offered to do an examination at that time and to do the cleaning later, but he does not mention that somebody else came into the room, nor did he refer to the time sheets or the fact that he was in the middle of a crown procedure. This is evidence in support of his position, but he did not tell the Commission about it.

40(h) Mr. Jerome told Mr. Mushega that Ms. Kissner had informed him that another person had been denied treatment by Dr. DeMarco. Ms. Kissner told Mr. Mushega that she was not aware of any other AIDS patient who had been denied treatment. The Commission did not have evidence that Mr. Jerome lied, which it failed to disclose. "What you have is a potential inconsistency which wasn't followed up because it was on a collateral matter and it didn't seem to the officer to be significant at the time" (Transcript, v. 10, p. 34).

41(i) There is nothing improper in not having a fact finding conference; the officer has discretion. He had a detailed response from the complainant. There was no indication that "the respondent made any attempt or any objection to the nature of the investigation that was being conducted." As understood by Mr. Mushega, Dr. DeMarco's position was that he required a treatment protocol, and Mr. Mushega's opinion was that this was not supported by the evidence.

42(j) Even after the case summary there is an opportunity before a decision to request a board for respondents to make further submissions to the Commission. The letter of July 25, 1990, to Mr. Strosberg said (Exhibit 46, p. 7) "I have enclosed the report upon which the Commission's decision will be based. Any reply you may wish to make to this report will be sent to the Commission for review." The respondent did not reply.

43(k) A factor to consider in assessing whether a complaint is trivial, frivolous, vexatious or made in bad faith is whether the respondent ever requested the Commission to make a decision under s. 33 of the Code, which was not done in this case.

44(l) The allegation that the officer failed to put in the case summary that Mr. Jerome had initially requested $10,000, and that he had taken the case to the media is answered on two grounds. First, the offers were no longer on the table, so a settlement had not been effected, which is what was told the Commission. Second, all of these matters were within the knowledge of the respondent, who could have brought them to the attention of the Commission.

45(m) There was no ground to compel Mr. Mushega to get a medical opinion concerning possible medical reasons for delay, because the only asserted reason for postponement was related to infection control. Mr. Mushega did follow this question up, and did mention the infection control guidelines to the respondent's counsel.

46(n) At the start of the hearing, on April 26, 1991, Mr. Strosberg asked for Mr. Jerome's medical records, but only on a question of credibility, and not because of a claim that Dr. DeMarco needed to know about Mr. Jerome's medical status before being able to treat.

47(o) Counsel for the Commission's statement on April 26 that to postpone until the last appointment of the day would be discriminatory was based upon the evidence that the postponement was infection control, and not that "any postponement is ipso facto discriminatory" (Transcript, v. 10, p. 82).

(ii) Vexatiousness of Complaint

48Mr. Jerome had reasonable or probable cause to believe his rights had been infringed, so his complaint was not vexatious. In the decision the Chair found [at p. D/406, para. 22] that although he drew the wrong impression from Dr. DeMarco's wearing of gloves, masks, etc., his reaction was understandable. Further, the uncontradicted evidence of the conversation in the office about blood on the wall, reputation as an AIDS dentist, and Mr. Jerome's correct belief that current infection control guidelines, were sufficient to give Mr. Jerome reasonable cause for his belief. Finally, the finding of the Chair [at p. D/406, para. 23] was that the parts in which the conversation unfolded could have given rise to some confusion as to the intentions of Dr. DeMarco.

(iii) Mr. Jerome's Bad Faith

49(a) The argument with respect to vexatiousness applies here. Certain comments were made, and there was a reasonable basis for a belief in discrimination.

50(b) While the Board has evidence before it that Mr. Jerome went to the media, it does not have evidence about the details presented to the media. There is no evidence upon which the Board could judge "that Mr. Jerome made statements, what those statements were, whether they amounted to slander or libel (Transcript, v. 10, p. 53). Nothing in the evidence of Mr. Jerome indicates that improper statements were made that could amount to bad faith. Going to the press is not by itself evidence of bad faith, and to take it as being so "would unduly fetter the ability of people to deal with issues of discrimination" (Transcript, v. 10, p. 57).

51(c) The evidence referred to by counsel for the respondent suggesting that Mr. Jerome enjoyed himself with the press, which is somehow indicative of bad faith, is indicative of a different conclusion. Mr. Jerome had taken politically active stands with respect to people with AIDS, and this time he took up his own case. This supports that he had an honest belief that this was an appropriate way to deal with discrimination.

52(d) People can take action for many reasons (collateral purposes), but if one is [in] the honest pursuit of a human rights complaint, that negates a finding of bad faith. In any case the reference to Mr. Jerome's "playing politics" must be taken in the context of the discussion in the office, wherein Mr. Jerome was given reasonable grounds for believing that Dr. DeMarco was playing politics with him.

53(e) Mr. Jerome's involvement in the Williams complaint has nothing to do with whether he had grounds to pursue a human rights complaint. Nowhere did anyone indicate to the Commission that anything improper on Mr. Jerome's part was going on.

54(f) The allegation that Mr. Jerome's putting of the matter to the press made settlement impossible is wrong. First, Mr. Jerome did not agree to this as alleged. He said (Transcript, v. 2, p. 146), "That's for the other party to interpret, not mine." Second, people often settle cases after the matters have been taken to the press. The view that no settlement was possible was entirely the respondent's view.

55(g) A request for compensation, even if unreasonable, is not bad faith. If it were, almost every personal injury statement of claim would be struck out as bad faith.

(iv) Undue Hardship

(a) Emotional Hardship

56Dr. DeMarco Sr.'s letter is not a medical report. He was not treating his son in a professional capacity, so the letter is his hearsay observations of how Dr. DeMarco felt. It should be given weight in accordance with this. In other cases the personal respondent testified so the board was able to judge that person's demeanour.

Both the letter and cross-examination of Dr. DeMarco Sr., and common sense, make it clear that the proceedings of the College contributed significantly to whatever Dr. DeMarco was feeling.

(b) Financial Hardship

57First, the size of the cost of defending the proceeding cannot be use[d] to argue that it caused financial hardship. Costs follow the event in civil proceedings. Second, there is no evidence that Dr. DeMarco has incurred significant financial expenditures; the amount he eventually will be billed is not known. Third, a significant amount of the costs have to be given to the litigation before the Health Disciplines Board. Fourth, the amount caused by the respondent's having failed to participate earlier in the process must be considered.

(c) Hardship of Public Humiliation

58As argued with respect to Mr. Jerome's bad faith on this matter, the Board does not have evidence before it with respect to the media to be able to conclude whether or not the respondent suffered hardship in that area.

5. DECISION

(i) Vexatiousness

59Much of the evidence from Mr. Jerome about the conversation with Dr. DeMarco is uncontradicted. Specifically, this is the evidence with respect to Dr. DeMarco worrying about becoming known as an AIDS dentist, the question of aerosolized contaminated blood mixing with the unhardened paint, and the questions of the adequacy of universal precautions. Given this, there would be a reasonable belief on the part of Mr. Jerome that a delay, even if only to the end of the day, would be discriminatory. This is the substance of the second prong of the Commission's case. Accordingly, I agree with counsel for the Commission on this point, and find that the complaint was not without reasonable cause, and so not vexatious.

(ii) Bad Faith

60The question of bad faith is more complex. I am not persuaded by the questions of publicity or collateral purposes, as such, but believe that parts of Mr. Jerome's behaviour do severally constitute bad faith. Further, although the Commission has not been shown to have acted in bad faith, in some particulars the Commission did not discharge its mandate fully, which compounded the results of Mr. Jerome's bad faith.

61The mere fact of publicity is not evidence of bad faith. But should that publicity arise out of malice, a design to defraud or to seek an unconscionable advantage, then it would indicate bad faith. In this case the details of the publicity are not known, so it is impossible to say whether or not the actual publicity engendered is indicative of bad faith. Counsel for the respondent argued that Mr. Jerome sought publicity for collateral purposes, that he was politically motivated and desirous of gaining revenge. There is no question that Mr. Jerome had a political motivation (see (f) of the respondent's argument), but there is also evidence that he [w]as responding to what he reasonably saw as political motivation on Dr. DeMarco's part (see (d) of Commission's argument). Mr. Jerome did testify in cross-examination that he "cranked up the pressure" on Dr. DeMarco, and "gave it back to him in spades," by bringing the media to bear the afternoon of the scheduled appointment. This is indicative of malice, but it also occurs immediately after the incident, and must be seen with the emotions of that time in mind. So while Mr. Jerome's testimony is suggestive of bad faith in this respect, it is only that.

62The question of Mr. Williams' telephone call is relevant here. While Mr. Jerome testified he had nothing to do with Mr. Williams seeking an appointment, this does strain credulity, as seen in Ms. Kissner's testimony. In having Mr. Williams intercede at this time, Mr. Jerome is both seeking to add validity to his complaints, and to increase the pressure on Dr. DeMarco. This is indicative of bad faith.

63Looking at Mr. Jerome's veracity concerning Mr. Williams' telephone call to Dr. DeMarco leads to the important question of Mr. Jerome's general veracity. Mr. Jerome stated throughout that Dr. DeMarco had refused to treat him, rather than postponing that treatment to the end of the day. This was the basis of the first prong of the Commission's case. In the decision [at p. D/405, para. 21], I held that the balance of evidence was that Dr. DeMarco did offer to treat at the end of the day. This is all that was required for the purposes of deciding whether the Commission had proved this part of its case. But for the question of bad faith, it is important to look further at this matter. While an untruth on some points need not point to bad faith, a lack of veracity on a central matter does constitute bad faith.

64Mr. Jerome was probably untruthful with respect to Mr. Williams' telephone call. He was inaccurate with respect to the attire Dr. DeMarco wore during the interview, only in cross-examination admitting that Dr. DeMarco removed his mask part of the time. He informed Mr. Mushega that, according to Ms. Kissner, Dr. DeMarco had refused to treat another person with AIDS, which was later denied by Ms. Kissner. Taken individually each of these might be accepted as the result of confusion. But seen together they indicate a lack of veracity. Each incident is one which would have significantly strengthened Mr. Jerome's case.

65The question with respect to the events in the office is whether or not Mr. Jerome believed Dr. DeMarco had refused to treat, as opposed to offering to examine at that time and to do the scheduled cleaning at the last appointment of the afternoon. Counsel for the Commission suggested that the finding in the decision was that the conversation in the office unfolded in parts and could have given rise to some confusion as to the intentions of Dr. DeMarco. In fact, that section of the decision is dealing with the claim that Dr. DeMarco was acting in such a way as to discourage Mr. Jerome from becoming a patient. It says [at p. D/406, para. 23], "In such a case it would not be surprising if explanations about the postponement of treatment unfolded in parts and in response to questions." It concludes that Dr. DeMarco was not acting to discourage Mr. Jerome. In fact, Mr. Jerome, both in his testimony and in his written evidence, was very clear in his statement of what went on in the office, and disagreed with Dr. DeMarco's respondent questionnaire only concerning the question of the offer to treat. Based upon this fact, and upon the other questions of veracity above, I conclude that Mr. Jerome was not truthful on this point. I accordingly hold that he was guilty of bad faith in this matter.

66I agree with counsel for the Commission that Mr. Mushega did not act as an advocate for Mr. Jerome, given that he communicated to the respondent his view that some of the complainant's demands were unacceptable. Mr. Mushega could have better summarized and completed settlement discussions, but this was also an option available to the respondent. Further, I accept that what made this case a priority was the fact that AIDS is a terminal disease, rather than that the Commission was anxious to get a precedent. But there are two points at which the Commission failed to discharge completely its mandate.

67Whether it was clear before or not, it was clear at the time that Mr. Mushega received the respondent questionnaire that there was a very significant difference between the complainant and the respondent about the facts of the meeting in Dr. DeMarco's office. Yet it was on receipt of this document that Mr. Mushega decided not to go ahead with a fact finding conference. Nor did he go to Dr. DeMarco's office to question any of his staff about the meeting. Counsel for the Commission submitted that fact finding conferences are not required, but that the officer has discretion. Be this as it may in general, in the particular circumstances of this case, especially given that a conference had been scheduled, not to have the conference, or not to investigate further concerning the facts, was not to discharge adequately the Commission's duty to investigate.

68The second point has to do with the failure to seek professional opinion on the grounds for delay. Counsel for the Commission submitted that this was proper, since the only asserted reason for postponement was related to infection control. But in fact, at the first telephone call, Mr. Mushega notes that Dr. DeMarco "says he needs professional advice from his professional association with respect to current treatment procedure of aids [sic] patients" (Exhibit 46, p. 84). In the respondent questionnaire, Dr. DeMarco refers to the need for a "protocol for treatment" and "treatment protocol." In each of these instances, reference is made to treatment procedure or protocol rather than to infection control procedure or protocol. Responsible dentists will use universal infection control procedures when treating, but as has been made extremely clear during this hearing, treatment and infection control are two different things. There was discussion of infection control as the case developed, and perhaps because of this the Commission remained fixed upon infection control procedure and sought no advice about treatment procedure. Yet when professional advice was given in evidence, both by Dr. Hardie and by Dr. Nagle, the Board was told that postponement was appropriate for purposes of proper treatment. Matters of proper health care treatment are most usually highly technical matters about which it is imperative to have expert professional advice. By not seeking such advice in a situation in which it was clearly needed, the Commission acted less than adequately.

69With respect to neither of these points, however, has the Commission been shown to have acted in that state of mind contemplated by the term ”˜bad faith,' namely one "affirmatively operating with furtive design or ill will." Accordingly, while I am critical of the Commission with respect to these two points, I find that it did not act in bad faith.

(iii) Undue Hardship

70As was pointed out by counsel for the Commission, this Board does not have evidence before it of the content of the publicity in the press, radio and television. It thus cannot be determined whether there was undue hardship of public humiliation. I accordingly find there was not such a hardship.

71The evidence for emotional and physical hardship is found in the submission from Dr. DeMarco Sr. Counsel for the respondent has argued that Dr. DeMarco Sr. was not treating his son, and that his evidence should not be considered a medical report but rather hearsay, and should be so weighted. I believe his evidence falls on the borderline between these two alternatives. While Dr. DeMarco Sr. was not treating his son, his observations, which took place over some time, were those of a medical doctor and were related to health matters, so should be given more weight than hearsay. While counsel for the Commission is correct that the evidence of Dr. DeMarco himself would have been preferred, the evidence presented does show that Dr. DeMarco was suffering emotionally and physically as a result of the charges brought against him. The letter from Dr. DeMarco Sr. does indicate that part of the hardship was due to the proceedings before the College. In the absence of bad faith, it would not be shown that Dr. DeMarco was suffering undue hardship. However, the hardship which stems from the human rights proceedings is partially due to the bad faith found above, and so is undue. Support for this can be found in Pham v. Beach Industries Ltd., supra, at D/4024.

72Parallel reasoning applies with respect to undue financial hardship. Counsel for the Commission is correct that the mere fact of incurring large costs is not an undue hardship. It is also correct that the exact final amount he will be billed is not entirely clear. The costs are nonetheless considerable, and, because of the bad faith detailed above, must be considered undue hardship.

In sum, I find that Mr. Jerome acted in bad faith, which in the particulars of this case was exacerbated by the Commission's investigative failures, and that in consequence Dr. DeMarco suffered undue hardship.

6. AWARD

73Counsel for the Commission argued that even after a finding of bad faith, etc., the Board should not exercise its discretion to award costs because the respondent "declined to use the Commission's procedures of conciliation and investigation to deal with it. He chose to go to a board of inquiry and that's where he ended up" (Transcript, v. 10, p. 95).

74In my opinion this characterization does not succeed. The respondent did not impede the investigation, but rather responded to all requests for information. The failure to investigate by interviewing staff in Dr. DeMarco's office or by having a fact finding conference came as a result of a decision by Mr. Mushega, not the respondent. Dr. DeMarco refused to agree to a settlement without including a statement that he did not violate the Code. Given the finding of this Board, that is not an unreasonable demand. Finally, as counsel for the respondent stated, counsel for the Commission did not abandon the case upon hearing the facts upon which the Board made its finding, but at the end of the hearing still "vigorously pushed the Commission's position" (Transcript, v. 10, p. 98). This does not suggest that a more active stance in laying out the facts available to him would have saved the respondent the effort of defending himself before this Board. I accordingly shall exercise my discretion to award costs.

75Previous boards have awarded costs on a solicitor-client basis (Pham, supra; Johnson v. East York Board of Education (unreported Ontario Board of Inquiry decision dated July 5, 1991) [now reported 1991 CanLII 13131 (ON HRT), 17 C.H.R.R. D/175]; Ouimette v. Lily Cups Ltd.(1990), 12 C.H.R.R. D/4845 [sic] (Ont. Bd.Inq.)). Consistent with this, I order that the respondent be awarded costs on a solicitor-client basis. These costs will include all but only those costs directly associated with the process of this Board of Inquiry. The total will not, however, exceed $80,000, which is the amount requested by counsel for the respondent. If the parties are unable to agree to the amount so ordered, they should make brief written submissions to me as to those items upon which they cannot agree.