Ontario Board of Inquiry
Giansaroop Persaud and Devinder Bhardwaj Complainants
v.
Consumers Distributing Ltd., Cliff St. Pierre and Gary Dassy Respondents
Before: Ontario Board of Inquiry, Peter A. Cumming
Comm. Decision No.: 399a
Appearances by: Dennis Brown, John Zarudny and G. Sanson, Counsel for the Ontario Human Rights Commission Barbara G. Humphrey, Lee Shouldice and G. Anand, Counsel for the Respondents Consumers Distributing Ltd. and Cliff St. Pierre Kalmen Goldstein, Counsel for the Respondent Gary Dassy
COSTS — costs arising from poor investigation of complaint by human rights commission — INTERPRETATION OF STATUTES — "frivolous," "trivial" and "vexatious"
Summary: The Board of Inquiry declines to order costs against the Ontario Human Rights Commission in the complaint of Persaud v. Consumers Distributing Ltd. The Board of Inquiry dismissed this complaint and found that Mr. Persaud made his complaint in bad faith.
Section 41(4) of the Code provides that costs can be awarded to a respondent where a complaint is trivial, vexatious or made in bad faith, or where it has caused undue hardship to the person complained against.
The Board of Inquiry finds that in order to make an award of costs, it must be satisfied: (a) that the complaint was trivial, frivolous or made in bad faith or that it caused undue hardship and (b) that the Commission was aware, or would have been aware had it exercised due diligence, that the complaint was trivial, frivolous or made in bad faith.
In the circumstances of this complaint, the Board of Inquiry finds that the Commission did not know that Mr. Persaud had made his complaint in bad faith. The Commission had good reason to believe that discrimination had occurred and could not have been expected to uncover Mr. Persaud's bad faith through its investigation since it was only uncovered through the extensive cross-examination under oath which occurred at the hearing.
The Board of Inquiry also finds that there was no undue hardship to the respondents. The corporate respondent contributed to the creation of a workplace atmosphere which made it vulnerable to this fraudulent claim.
For all these reasons, the Board of Inquiry declines to award costs in this case.
[See also reasons for decision (1991), 1990 CanLII 12507 (ON HRT), 14 C.H.R.R. D/23 (Ont. Bd.Inq.) and related case on evidence Consumers Distributing Co. v. Ontario (Human Rights Comm.) (1987), 1987 CanLII 4055 (ON HCJ), 8 C.H.R.R. D/3901 (Ont. Div.Ct.).]
Cases Cited
Adams v. Bata Retail (1988), 1988 CanLII 8868 (ON HRT), 10 C.H.R.R. D/5954 (Ont. Bd.Inq.): 12
Hyman v. Southam Murray Printing (No. 3) (1984), 1984 CanLII 5039 (ON HRT), 5 C.H.R.R. D/2254 (Ont. Bd.Inq.): 11
Lamers v. Pacific Building Maintenance Ltd. (1991), 1991 CanLII 7919 (SK HRT), 14 C.H.R.R. D/235 (Sask. Bd.Inq.): 8
Ouimette v. Lily Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19 (Ont. Bd.Inq.): 16
Parks v. Christian Horizons (No. 2) (1992), 1992 CanLII 14224 (ON HRT), 16 C.H.R.R. D/171 (Ont. Bd.Inq.): 17
Persaud v. Consumers Distributing Ltd.(1991), 1990 CanLII 12507 (ON HRT), 14 C.H.R.R. D/23 (Ont. Bd.Inq.): 1
Pham v. Beach Industries Ltd. (1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 (Ont. Bd.Inq.): 4, 11
Legislation Cited
Manitoba
Human Rights Code, S.M. 1987–88, c. 45, C.C.S.M. c. H175, s. 45(2): 7
Ontario
Human Rights Code, 1981, S.O. 1981, c. 53: 3
s. 4(2): 20
s. 40(6): 2, 18
s. 40(6)(a): 11
s. 40(6)(b): 11
Saskatchewan
The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 30(1): 8
Authorities Cited
Black's Law Dictionary, 5th ed. (St. Paul Minn.: West Publishing Co., 1979): 4
Watson, G., W. Bogard, & A. Hutchinson et al., Canadian Civil Procedure, 3d ed. (Toronto: Emond Montgomery Publications Ltd., 1988): 9
INTRODUCTION
[1] My reasons for decision and order in this matter can be found in (1991), 1990 CanLII 12507 (ON HRT), 14 C.H.R.R. D/23. I have been asked by the parties to provide a supplementary decision restricted to the issue as to whether an order for costs is to be made against the Commission. My decision makes no reference to this issue, although as submission and arguments were made by the respondents on this specific issue, my decision should have expressly dealt with this issue as well. I did direct my mind to this issue in rendering my decision and exercised my discretion by not awarding any costs. However, my decision is silent as to my reasons for doing so.
THE ISSUE
[2] The issue to be dealt with in this supplementary decision relates to the application of s. 40(6) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, as amended (now s. 41(4), R.S.O. 1990, c. H.19). The question arises as to the allocation of costs when a complaint was made in bad faith by a complainant, however, the Human Rights Commission was unaware of this until, at the earliest, the true situation unfolded at the Board of Inquiry. It is the responsibility of the Commission to ensure that every attempt is made to reveal the true facts of a case and determine their validity. This is the purpose of the required investigation performed by the Commission prior to making a request for a board of inquiry to review the situation. It is therefore reasonable to expect that a diligent investigation be pursued, before the case is presented to a board of inquiry.
THE LAW
i. Historical Background
[3] The Ontario Human Rights Code, 1981, S.O. 1981, c. 53 as amended (hereafter the "Code") was introduced as a measure to recognize and provide for the equal and inalienable rights of every individual member of our society, and to protect these rights from all and any forms of discrimination. Section 40(6) of the Code (now s. 41(4), R.S.O. 1990, c. H.19) provides the following:
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. [Emphasis added.]
It is difficult to interpret the intended scope of this provision, as little has been written about the issue of costs in this regard. Hansard, which outlines Legislative Assembly debates, provides no discourse with respect to s. 40(6) and its intended function. Its purpose must therefore be determined through an analysis of the wording of the provision itself.
[4] Black's Law Dictionary provides definitions for the following terms referred to in this provision, as quoted by Chairperson H.A. Hubbard in Pham v. Beach Industries Ltd.(1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 at D/4021 [para. 31790]:
FRIVOLOUS An answer is "frivolous" where it appears from bare inspection to be lacking in legal sufficiency, and, where in any view of the facts pleaded, it does not present a defense. Any pleading is called "frivolous" when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent.
"Frivolous pleas" are those which are so clearly and palpably bad as to require no argument to convince the court thereof, and which would be pronounced by the court indicative of bad faith in the pleader on a mere inspection.
A frivolous demurrer has been defined to be one which is so clearly untenable, or its insufficiency so manifest upon a bare inspection of the pleadings, that its character may be determined without argument or research.
A "frivolous appeal" is one presenting no justiciable question and so readily recognizable as devoid of merit on face of record that there is little prospect that it can ever succeed.
A sham plea is good on its face, but false in fact; it may, to all appearances, constitute a perfect defense, but is a pretense because false and because not pleaded in good faith. A frivolous plea may be perfectly true in its allegations, but yet liable to be stricken out because totally insufficient in substance.
TRIVIAL Trifling; inconsiderable; of small worth or importance. In equity, a demurrer will lie to a bill on the ground of the triviality of the matter in dispute, as being below the dignity of the court.
VEXATIOUS Without reasonable or probable cause or excuse.
These definitions should be applied in interpreting the meaning and purpose of s. 40(6).
[5] The provision provides a discretionary power to the board of inquiry to determine when costs should be awarded. The wording clearly indicates that the board has the option, and therefore may or may not choose to award costs in any given case. As to whom costs should be awarded, there is no discretion within this section. Section 40(6) concerns itself only with a respondent, and his/her recovery of costs. It outlines the specific situations in which costs may be awarded to a respondent and it is only in such circumstances that the board may or may not do so. As for the complainant being awarded costs, such relief is not provided, but his/her costs in effect are borne by the public as the Commission, a government agency, has carriage of the case to introduce the evidence in support of the complaint.
[6] The Ontario provision is different from provisions in other provincial and federal human rights legislation. Of those that account for the issue of cost allocation at all, most provide very general provisions, allowing for substantial discretion in the hands of the board of inquiry. The federal, Newfoundland, Alberta, British Columbia, Saskatchewan and Quebec legislation all permit a board of inquiry to make any order that it considers appropriate. There is no distinction made between allocations to the complainant and to the respondent. There is also no outline of specific circumstances deserving of such an order. A board of inquiry, under these provisions, may therefore order costs to be awarded in whatever instances it believes are deserving.
[7] It is only the Manitoba legislation that, like the Ontario Code, specifies the necessary circumstances for the awarding of costs. The Manitoba Human Rights Code, C.C.S.M. c. H175, S.M. 1987–88, c. 45 provides in s. 45(2) that an order for the payment of costs may be made if one of the parties to the adjudication makes a complaint or reply that is frivolous or vexatious, or prolongs the adjudication of the complaint or reply through conduct that is frivolous or vexatious. Given the differences between the Ontario Code and the legislation in other Canadian jurisdictions, the case law in such other jurisdictions is not helpful in resolving the issue at hand.
[8] In a Saskatchewan case, Lamers v. Pacific Building Maintenance Limited (1991), 1991 CanLII 7919 (SK HRT), 14 C.H.R.R. D/235, the complaint was dismissed for lack of credibility and the respondent was awarded costs. The Saskatchewan Human Rights Code [S.S. 1979, c. S-24.1], s. 30(1), provides that the board of inquiry has the discretion to award costs where appropriate. There are no restrictions as to whom and when these awards may be made. As such, the respondent was able to recover its costs without proving that the complaint was trivial, frivolous, vexatious or in bad faith, or that any undue hardship was suffered by the respondent. Such criteria, however, must be met under the Ontario legislation for costs to be justifiably awarded.
[9] Canadian civil procedure has opted for a general rule of indemnity. It allows for those costs, reasonably incurred throughout the litigation of the dispute, to be recovered by the successful party, provided that his/her conduct was appropriate throughout the procedure (G. Watson, W. Bogard, A. Hutchinson and R. Sharpe, Canadian Civil Procedure, 3d ed. (Toronto: Emond Montgomery Publications Limited, 1988) at 264–65). Here again, discretion is given to the adjudicator to determine to whom and when costs should be awarded. However, this is only applicable to cases pursued under a civil suit.
ii. Complaints Made in Bad Faith
[10] In the case at hand, the complainant Persaud made a complaint in bad faith. Knowing there was no justification to his claim, the complainant concealed his motives from the Human Rights Commission in hopes of attaining some monetary benefit. The true story only unfolded at the Board of Inquiry, the Commission being ignorant of the truth until that point, and even then the truth was dependent upon the Board's findings with respect to the complainant Persaud's credibility. The Commission may even have had a different view from the Board's as to credibility at the conclusion of the inquiry, although I doubt this very much given the evidence at the inquiry.
[11] The respondent in this case is requesting an award of costs. Should the Commission be required to pay costs if the truth was unknown to it prior to conclusion of the inquiry?
In the Ontario case Hyman v. Southam Murray Printing (1984), 1984 CanLII 5039 (ON HRT), 5 C.H.R.R. D/2254, the complaint was dismissed and the respondent requested costs to be awarded. The submission of the respondent's counsel was that the investigation of the Commission was grossly inadequate and that the entire proceeding was frivolous and vexatious. The Board of Inquiry held that although the conduct of the Commission appeared to be questionable, there was no evidence of this brought before the Board. As well, the complaint itself was not frivolous nor vexatious in the eyes of the complainant. The complainant appeared to have sincerely believed in his claim (p. 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.
A second Ontario case to be considered is Pham v. Beach Industries Limited, supra. The Board of Inquiry dismissed the complaint and awarded costs to the respondent. It held that the complaint was in bad faith, the complainant being clearly aware of its falsity. As well, the Commission acted irresponsibly in pursuing the complaint and submitting the "biased report of an improperly appointed investigating officer" (at p. D/4021, para. 31795). In contrast to the present case, the Commission in Pham should have been aware that the allegations were false, yet still proceeded with bringing the case to the Board. The Board of Inquiry awarded costs, not simply because the complaint was in bad faith, but also as compensation for the undue hardship suffered by the respondent, as a result of the false allegations. However, Chairperson Hubbard expressly held that an operative reason for exercising his discretion to award costs under both of paras. 40(6)(a) and (b) was that the Commission had improperly discharged its responsibilities (p. D/4023, para. 31810 and D/4024, paras. 31811 and 31812).
[12] In the Ontario case Adams v. Bata Retail(1988), 1988 CanLII 8868 (ON HRT), 10 C.H.R.R. D/5954, the respondent requested a recovery of costs because it was felt that the Commission was selective with its investigation. The Board of Inquiry held that although the Commission did fail to provide evidence both favourable and unfavourable to the respondent, drawing inferences that limited the scope of the investigation, the respondent would not be awarded costs. The reasoning was that the circumstances were not sufficiently clear that the complaint could be found trivial, frivolous, vexatious or made in bad faith.
[13] In the present case, I make it clear in my decision that the complaint was made in bad faith, and this was known to the complainant Persaud all along. The question that must then be addressed is whether the Commission performed a complete and proper investigation of the facts of the case prior to the inquiry. If there is sufficient evidence proving that an unsatisfactory attempt was made by the Commission to determine the true facts and validity of the case, costs should be awarded.
[14] In my view, should the Commission be found to have perform[ed] its investigation with reasonable care, costs should not be awarded. The Commission should not be penalized for an unjustifiable claim advanced in bad faith by a complainant brought to the board of inquiry, where there is no fault on its part.
[15] Although my finding on costs must be based upon a consideration of the law as of the date of my decision, I note that boards of inquiry decisions subsequent to my decision in this matter have followed the same approach as set forth in the cases above-referred to.
[16] In Ouimette v. Lily Cups Ltd.(1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19 at D/34, para. 72, Chairperson Baum awarded costs, having found that the complaint was trivial and frivolous, and that the Commission was aware of the "absence of facts necessary to prove the allegations of the complaint."
[17] In Parks v. Christian Horizons (1992), 1992 CanLII 14224 (ON HRT), 16 C.H.R.R. D/171, Chairperson Errol P. Mendes declined to award the respondents their legal costs, having "concluded [that] the Commission has not [acted] irresponsibly in supporting the complaints . . ." (at D/174, para. 30).
[18] In my opinion, s. 40(6) is properly interpreted as requiring two criteria to be met in determining whether a respondent should be awarded costs. First, the board must find that the complaint made was trivial, vexatious, frivolous or in bad faith; or that alternatively that [sic] there was undue hardship inflicted on the respondent in the given circumstances. Second, in exercising the board's discretion, it must be determined as to whether the Commission was aware, or should reasonably have been aware after an investigation with due diligence, that the complaint was trivial, vexatious, frivolous or in bad faith.
[19] In the instant case, I found that the complaint was made in bad faith by the complainant Persaud. Thus, the first criterion is met.
However, given all the evidence, I believe the Commission itself was at all times exercising good faith and pursuing the matter in accordance with its responsibilities and mandate. The facts were complicated and extensive. In particular, the misconduct of the respondent Garry Dassy to the Bhardwaj complaint (and Mr. Dassy was a main character in the Persaud complaint although not a named respondent thereto) suggested at the outset that the corporate respondent might well be indifferent to racial harassment in its warehouse. Almost 50 percent of the work force of 243 persons at the warehouse were from visible minorities. There had been a history of severe labour problems. The evidence suggested that historically Consumers' senior management had treated its work force with disrespect and with little concern for their welfare. While the historical problems seem to have been largely rooted in labour problems, I had the benefit of hindsight after some 50 volumes of evidence and 155 exhibits in having come to that conclusion.
[20] It is understandable that the Commission would have concerns about the racial overtones that were thrown up in this history and by the complainants Bhardwaj and Persaud. Indeed, my decision found that there was a breach of s. 4(2) of the Code by Mr. Dassy with respect to Mr. Bhardwaj. He was found guilty of racial harassment. The same Mr. Dassy was at the centre of the factual circumstances surrounding Mr. Persaud's termination of employment and, because of this, it was easy and convenient for Mr. Persaud to allege discrimination because of race.
[21] Mr. Sean Floyd, leader of the union at the time, in his evidence suggested that there may have been some historical problems at Consumers in respect of management's dealings with employees of visible minorities. There was some evidence of racial name-calling in the workplace as well as racial graffiti in the washrooms. There were five human rights complaints made with respect to the respondent's workplace pre-1980, although the Commission proceeded only with one. In the 1980s, there were five more complaints, including the two before this Board of Inquiry. Of the other three, two were withdrawn or rejected and the third was settled. A term of the settlement in the latter situation provided that a race relations committee was to be established, but nothing was done, although it seems in hindsight this was as much because of the indifference of the union as because of Consumers' management. Ms. Guttentag, an investigator for the Commission, made an "impressionistic snapshot" on her part in investigating the alleged race relations problems at Consumers. Her contribution to the overall investigation was somewhat superficial. However, considering all the evidence, I do not think she could have discerned the truth even after an extensive investigation. The factual situation was complex and much turned upon findings of credibility under oath. From the Commission's standpoint, a board of inquiry was the only reasonable means to resolve the truth in respect of complaint.
[22] For all the reasons given above as to why costs should not be awarded under s. 40(6)(a), I also find there is not "undue hardship" to the respondents within the meaning of s.204(6)(b) [sic]. The corporate respondent itself had contributed to the creation of a situation in its workplace that made it vulnerable to a fraudulent claim by someone like the complainant.
Given all the circumstances, in my view costs should not be awarded against the Commission.