Ontario Blue Cross v. Ontario (Human Rights Comm.) (No. 1)
1993-03-16
Elizabeth Clinton
Complainant
Ontario Blue Cross
Respondent
Before: Ontario Board of Inquiry, Jeffry A. House
Comm. Decision No.: 510
Appearances by:
Elizabeth Clinton, on her own behalf
Catherine Bickley, Counsel for the Ontario Human Rights Commission
Janice Baker, Counsel for the York County Hospital
Art Craig, Counsel for Ontario Blue Cross
Dunbar Russell, Counsel for the Ontario Hospital Association and Gord Cunningham
COMPLAINTS — amendment to remove respondents — dismissal of complaint — PRODUCTION OF DOCUMENTS — particulars — PARTIES — removing respondents
Summary: The Board of Inquiry declines a preliminary motion to dismiss the complaints against the Ontario Hospital Association and Gord Cunningham. These respondents allege that they are named erroneously in the complaint. However, the Ontario Human Rights Commission argues that it is premature for the Board of Inquiry to decide which parties are liable for the alleged discrimination without hearing the evidence. The Board of Inquiry finds that the respondent hospital association and Gord Cunningham should know the essence of the case against them. It orders the Commission to provide appropriate disclosure to these parties within thirty days.
Legislation Cited
Canada
Ontario
- Human Rights Code, R.S.O. 1990, c. H.19
- s. 32: 4
- s. 39(2): 4
- Rules of Civil Procedure: 4
- Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 23(1): 8
1On April 1, 1993, Ms. Baker for the respondents Ontario Hospital Association and Mr. Gord Cunningham brought a motion that the case be dismissed against these two respondents on the basis that on the materials no case is disclosed against either of them.
2In support of the motion, an agreed statement of facts was filed as Exhibit C-4. That statement of facts identifies the Ontario Hospital Association (OHA) as "an organization providing a variety of services, including labour relations consulting support to hospitals during central collective bargaining." OHA staffpersons participate as part of the central negotiating teams for management, in proportions up to 25 percent of the negotiators, and act as spokespersons for the participating hospitals. OHA facilitates province-wide collective bargaining, although the province-wide system remains voluntary, and hospitals may choose not to participate. OHA does not sign any collective agreement, however, as this is done by a given hospital and representatives of the bargaining unit, in this case, the Ontario Nurses Association (O.N.A.).
It is also agreed that OHA does not administer any health plans.
3This last factor provides the basis for M[s]. Baker's motion. She asks me to note that in the complaint before me (Exhibit C-3), the only allegation concerning OHA and its president, Mr. Gord Cunningham, is set out in para. 3 of the complaint, and reads:
It is my understanding that the employee benefits plan provided by my employer is administered by the Ontario Hospital Association.
M[s]. Baker submits that since the agreed facts make it clear that this allegation is unfounded, and there is no other allegation against OHA, or Mr. Cunningham, I ought to dismiss the complaint against those two parties.
4Ms. Bickley for the Commission responds that I am required, by virtue of my appointment as a board of inquiry, to inquire into the complaints before me, and that it remains to be determined whether or not any individual party will be liable. She submitted that it would be premature to dismiss at this stage.
Section 39(2) of the Human Rights Code [R.S.O. 1990, c. H.19] set out the appropriate parties at an inquiry. That section reads as follows:
39(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 alleges 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 5(2) or of alleged conduct under section 7, any person who, in the opinion of the board, knew or was in possession of facts from which the person ought reasonably to have known of the conduct and who had authority to penalize or prevent the conduct.
I was provided with no case law on the point by either party. In my view, however, I ought not to dismiss at this point. First of all, I do not consider a complaint under the Human Rights Code to be strictly analogous to a statement of claim or notice of action under the Rules of Civil Procedure, nor to an indictment or information under the Criminal Code [R.S.C. 1985, c. C-46]. Rather, a complaint made under s. 32 of the Human Rights Code, once received, is to be investigated by the Commission, and, where it appears that the evidence "warrants an inquiry" and that the procedure is appropriate, the Commission may require the Minister to appoint a board of inquiry and refer the subject matter of the complaint to the board.
5In other words, even if the original complaint itself discloses no basis for finding a party liable, it may be that the evidence gathered by the Commission does so, and that it is on the basis of that evidence that the Commission alleges that a given party has infringed a right under the Code.
I do not, therefore, take the agreed statement of facts filed to exclude the possibility that the Commission has other evidence implicating the two parties, Mr. Cunningham and OHA, in an infringement of the Code.
6That being said, it would clearly be improper to require the two respondents to appear before a Human Rights Code board of inquiry without their having some notice of what it is each of them alleged to have done to infringe the Code. The mere fact that the complainant erroneously indicated in her initial complaint that it was her understanding that OHA administered the employee benefit plan cannot now provide a foundation for a prosecution under the Act.
7In my view, it would be an abuse of the process of this inquiry to allow the Commission to proceed without disclosing to OHA and Mr. Gord Cunningham the essence of the case against each of them, and on what basis the Commission now alleges that they are liable under the Code.
8Therefore, pursuant to s. 23(1) of the Statutory Powers Procedure Act [R.S.O. 1990, c. S.22], I order the Commission to provide appropriate disclosure as indicated to the parties named in Exhibit C-3, the complaint against the Ontario Hospital Association and Mr. Gord Cunningham. This disclosure is to be made as soon as is possible but, in any event, within thirty days of the receipt by the Commission of this decision.
For these reasons, the motion by M[s]. Baker to dismiss the case against the Ontario Hospital Association and Mr. Gord Cunningham is denied.