Simms v. Seetech Metal Products

1993-04-30

Ontario Board of Inquiry

Rosalind Simms Complainant

v.

Seetech Metal Products a division of Seeburn Metal Products Limited, Marilyn Fournier and Roger Tomlinson Respondents

Date of Complaint: September 18, 1987

Date of Decision: April 30, 1993

Before: Ontario Board of Inquiry, Peter A. Cumming

Comm. Decision No.: 515

Appearances by: Kaye Joachim, Counsel for the Ontario Human Rights Commission William G. Phelps, Counsel for the Respondent

PHYSICAL DISABILITY — wrist injury — PROCEDURE — delay as abuse of process — REASONABLE ACCOMMODATION — duty to accommodate short of undue hardship — reasonable accommodation principle inherent in prohibition against discrimination — BOARDS OF INQUIRY/TRIBUNALS — application of stare decisis doctrine — INTERPRETATION OF STATUTES — amendment

Summary: This is a decision on two preliminary motions to dismiss a complaint alleging discrimination because of handicap. Rosalind Simms alleges that her employment was terminated in 1986 by Seeburn Metal Products Limited because of a handicap, namely an injured wrist. The respondents argue that the complaint should be dismissed because of unreasonable delay and because at the time of Ms. Simms termination there was no obligation upon an employer to accommodate a person with a disability.

The Board of Inquiry reviews recent decisions that deal with the issue of dismissing a complaint because of delay. It finds that the reasoning of the Saskatchewan Court of Appeal in Kodellas v. Saskatchewan (Human Rights Comm.) and of the Federal Court in Motorways Direct Transport Ltd. v. Canada (Human Rights Comm.) has not been followed in Ontario. In Kodellas the Saskatchewan Court of Appeal dismissed a complaint of sexual harassment against an individual respondent on the grounds that the delay in bringing the complaint to a hearing caused a breach of the respondents' Charter right to security of the person. In Motorways, the Federal Court adopted similar reasoning. However, the Board of Inquiry finds that this reasoning should not be followed in Ontario until and unless an Ontario court rules otherwise.

The Board of Inquiry rules that this complaint should not be dismissed for delay because a fair hearing is still possible, the delay in this case does not constitute an abuse of process, and dismissing the complaint in these circumstances would be unfair to the complainant for whom the human rights complaint is the only recourse available.

The respondent also argues that the complaint should be dismissed because it turns on the issue of whether Ms. Simms was accommodated by the employer and it was not until 1988 that the Ontario Human Rights Code was amended to include a requirement that employers provide reasonable accommodation for persons with disabilities. Given this, the respondent contends that there was no requirement to accommodate in 1986 and the complaint should be dismissed.

The Board of Inquiry finds, however, that there was a duty to accommodate before the 1988 amendments. The amended Code states explicitly the requirement to accommodate, but interpreters of the pre-amendment legislation, under which this complaint will be decided, found that the duty to accommodate was inherent in the prohibition against discrimination on the basis of disability.

The Board of Inquiry declines to dismiss the complaint.

Cases Cited

• Allen v. Sir Alfred McAlpine, [1988] 2 Q.B. 299 (C.A.): 23
• Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 27
• Commodore Business Machines Ltd. v. Olarte (1984), 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833 (Ont. Div.Ct.): 13
• Crane v. McDonnell Douglas Canada Ltd. (1993), 1993 CanLII 16506 (ON HRT), 19 C.H.R.R. D/422 (Ont. Bd.Inq.): 15
• D'Amore Construction (Windsor) Ltd. v. Ontario (1991), 1992 CanLII 7505 (ON CTGD), 7 O.R. (3d) 762: 23
• Dennis v. Family and Children's Services of London and Middlesex (1990), 1990 CanLII 12499 (ON HRT), 12 C.H.R.R. D/285 (Ont. Bd.Inq.): 13
• Gale v. Miracle Food Mart (No. 2) (1992), 1992 CanLII 14232 (ON HRT), 17 C.H.R.R. D/495 (Ont. Bd.Inq.): 13
• Ghosh v. Domglas Inc. (No. 1) (1991), 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16 (Ont. Bd.Inq.): 17
• Guthro v. Westinghouse Canada Inc. (No. 2) (1991), 1991 CanLII 13135 (ON HRT), 15 C.H.R.R. D/388 (Ont. Bd.Inq.): 11
• Hall v. A-I Collision and Auto Service (No. 2) (1992), 1992 CanLII 14233 (ON HRT), 17 C.H.R.R. D/204 (Ont. Bd.Inq.): 15
• Humboldt Flour Mills Co. Ltd. v. Ewen (1984), 1984 CanLII 2431 (SK CA), 36 Sask. R. 81 (C.A.): 23
• Hyman v. Southam Murray Printing (No. 1) (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.): 9
• Kodellas v. Saskatchewan (Human Rights Comm.) (1989), 1989 CanLII 284 (SK CA), 10 C.H.R.R. D/6305 (Sask. C.A.): 14, 16
• Lampman v. Photoflair Ltd. (1992), 1992 CanLII 14284 (ON HRT), 18 C.H.R.R. D/196 (Ont. Bd.Inq.): 15
• Latif v. Ontario (Human Rights Comm.) (1992), 1992 CanLII 14313 (ON CTGDDC), 17 C.H.R.R. D/198 (Ont. Ct. (Gen.Div.)): 8
• Lutz v. Gray's Lakehouse Restaurant (1990), 1990 CanLII 12511 (ON HRT), 13 C.H.R.R. D/158 (Ont. Bd.Inq.): 12
• McMinn v. Sault Ste. Marie (City) Professional Firefighters Assn. (1986), 1986 CanLII 6521 (ON HRT), 7 C.H.R.R. D/3458 (Ont. Bd.Inq.): 8
• Mears v. Ontario Hydro (1983), 1983 CanLII 4713 (ON HRT), 5 C.H.R.R. D/1927 (Ont. Bd.Inq.): 12
• Meissner v. 506756 Ontario Ltd. (1989), 1989 CanLII 9068 (ON HRT), 11 C.H.R.R. D/94 (Ont. Bd.Inq.): 10
• Morin v. Noranda Inc. (1988), 1988 CanLII 8878 (ON HRT), 9 C.H.R.R. D/5245 (Ont. Bd.Inq.): 10
• Motorways Direct Transport Ltd. v. Canada (Human Rights Comm.) (1991), 1991 CanLII 13186 (FC), 16 C.H.R.R. D/459, 36 C.C.E.L. 201 (F.C.T.D.): 14, 17
• Munsch v. York Condominium Corp. No. 60 (1992), 1992 CanLII 14246 (ON HRT), 18 C.H.R.R. D/339 (Ont. Bd.Inq.): 12
• O.P.E.I.U., Local 267 v. Domtar Inc. (No. 1) (1988), 1988 CanLII 8877 (ON HRT), 10 C.H.R.R. D/5968 (Ont. Bd.Inq.): 8
• Shepherd v. Bama Artisans Inc. (1988), 1988 CanLII 8890 (ON HRT), 9 C.H.R.R. D/5049 (Ont. Bd.Inq.): 10, 13
• Shreve v. Windsor (City) (No. 2) (1993), 1993 CanLII 16462 (ON HRT), 18 C.H.R.R. D/363 (Ont. Bd.Inq.): 17, 21, 25
• Toronto (City) Board of Education v. Quereshi (No. 1) (1987), 1987 CanLII 8495 (ON HRT), 9 C.H.R.R. D/4527 (Ont. Bd.Inq.): 10, 13
• Walbar Machine Products of Canada Ltd. v. Ontario (Human Rights Comm.) (1980), 1980 CanLII 3911 (ON HRT), 1 C.H.R.R. D/228 (Ont. Bd.Inq.): 25
• Wright v. Rank City Wall Canada Ltd. (1990), 1990 CanLII 6791 (ON HCJ), 72 O.R. (2d) 44; aff'd 1990 CanLII 6658 (ON HCJ), 74 O.R. (2d) 224n (H.C.J.): 23
• York Condominium Corp. No. 216 v. Dudnik (No. 2) (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325 (Ont. Bd.Inq.): 13

Legislation Cited

Canada

• Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11
  • s. 7: 13, 23
  • s. 11: 13
  • s. 11(b): 14

Ontario

• Courts of Justice Act, R.S.O. 1990, c. C.43, s. 119: 23
• Human Rights Code, 1981, S.O. 1981, c. 53: 27
  • s. 7: 16
  • s. 10: 28
  • s. 16: 29
  • s. 16(1): 28
  • s. 16(1)(a): 29
  • s. 16(1)(b): 29
• Statutory Powers Procedure Act, R.S.O. 1990, c. S.22
  • s. 8: 25
  • s. 23: 23
  • s. 23(1): 8

THE COMPLAINT

1The complainant, Ms. Rosalind Simms, was employed for about ten years with the respondent corporation, Seeburn Metal Products Ltd. (hereafter "Seeburn"), in its division "Seetech Metal Products" at its factory in Tottenham, Ontario. There are about 450 employees with Seeburn at its Tottenham and Beaverton plants, with about 200 of those in Tottenham. Ms. Simms' employment was terminated on or about August 22, 1986. At the time she worked on a product line assembling "car window regulators." Her immediate supervisor was the individual respondent, Ms. Marilyn Fournier, and the individual respondent Roger Tomlinson was the assistant manager at the factory. Ms. Simms alleges in her complaint (Exhibit No. 2) that her employment was terminated because of a handicap, being an injured wrist, in contravention of the Human Rights Code, 1981, S.O. 1981, c. 53 as amended (hereafter the "Code").

2At the outset of the hearing, a preliminary motion was brought by the respondents, on two bases. First, respondents submit that at the relevant times for this complaint there was no duty to accommodate under the Code, the Code amended to provide for a duty to accommodate in April 1988. Alternatively, respondents submit that the complainant's initial injury was sustained in April 1985, while she was working on the "rodding line," and that in an attempt to accommodate her she was tried in other positions, but could not do the essential duties of any of the positions available. This alternative argument is dependent upon the evidence given at a hearing. However, if there was no duty to accommodate at law at the relevant times, the respondents submit that duty to accommodate cannot be an issue.

3Second, the respondents argue that the complaint should be dismissed because of delay. Respondents argue that by virtue of delay witnesses are not available, important documentation relating to production has been destroyed and recollections of witnesses are faded. They submit that to proceed with the hearing "would be an abuse of process." I shall deal with this second motion first.

PRELIMINARY MOTION TO DISMISS THE COMPLAINT DUE TO DELAY

4Respondent brought a motion at the outset of the hearing requesting an order dismissing the complaint (Exhibit No. 2) due to the delay in proceeding.

The complaint was filed September 18, 1987, the Board of Inquiry was appointed November 19, 1992, and the hearing commenced December 11, 1992.

5Ms. Simms contacted (Exhibit No. 17) the Ontario Human Rights Commission within a few days of her termination of employment August 22, 1986. Within three days of her dismissal she complained in writing (Exhibit No. 7) to her employer and sought redress. A meeting was held with Robert Poloz, at the time Director of Marketing of Seeburn at Tottenham, on November 13, 1986, pursuant to the collective bargaining agreement (Exhibit No. 8) at which time she was assisted in pressing her grievance by two co-workers, Peter Smith and Peggy Brown. She was told the next day by Robert Poloz that she would not regain her job. By a letter (Exhibit No. 8) dated February 11, 1987, she advised her former employer that she would be filing a formal complaint with the Human Rights Commission.

6The complaint (Exhibit No. 2) was filed September 18, 1987, and was sent to Seeburn's corporate counsel November 23, 1987 (Exhibit No. 9). A long investigative process ensued, lasting almost four years (Exhibit Nos. 10, 11, 12, 13, 14 and 15). Clearly, the length of time involved in the investigation of the complaint is regrettable; nevertheless, Seeburn was well aware that the complaint was being pursued.

7However, by a letter dated June 5, 1991 (Exhibit No. 6), Seeburn's counsel was advised that, due to a recent board of inquiry decision, "it appears that the condition upon which this complaint is based does not constitute a handicap as defined for the purposes of the Code . . . [and] as a result, it appears the complaint is not within the jurisdiction of the Commission." Nevertheless, the June 5, 1991, letter (Exhibit No. 6) made it clear that a final decision on the jurisdiction issue would be made by the Commission. By a letter (Exhibit No. 16) dated November 1, 1991, Seeburn's counsel was advised that the Commission's decision was to proceed further with its investigation. This Board of Inquiry was appointed November 19, 1992 (Exhibit No. 1), by the Minister of Citizenship.

8The Board has jurisdiction by reason of s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 to decide in the first instance whether a complaint should be stayed or dismissed for delay. See Gohm v. Domtar Inc. (No. 1)(1988), 1988 CanLII 8877 (ON HRT), 10 C.H.R.R. D/5968; Latif v. Ontario Human Rights Commission, [Ont.Ct. (Gen.Div.)] March 11, 1992 [now reported 1992 CanLII 14313 (ON CTGDDC), 17 C.H.R.R. D/198] leave to appeal denied June 8, 1992; McMinn v. Sault Ste. Marie Professional Firefighters Association (1986), 1986 CanLII 6521 (ON HRT), 7 C.H.R.R. D/3458 at D/3464, para. 27628.

9In Hyman v. Southam Murray Printing Limited (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 at D/621, para. 5619, the Board of Inquiry (Chairperson John D. McCamus) considered the issue of delay.

My own view is that while unreasonable delay might be a factor to be taken into account in refusing or fashioning a remedy . . . or in weighing the persuasive force or credibility of testimony or other evidence, delay in initiating or processing a complaint should not be considered a basis for dismissing the complaint at the outset of the proceedings before a board of inquiry unless it has given rise to a situation in which the board of inquiry is of the view that the facts relating to the incident in question cannot be established with sufficient certainty to constitute the basis of a determination that a contravention of the Code has occurred.

10Boards of inquiry decisions suggest two alternative bases for dismissal because of delay: first, if delay has made it impossible for the inquiry to proceed; and second, if delay has so prejudiced a party in its ability to present evidence such that to continue would constitute an abuse of process. See Quereshi v. Board of Education for the City of Toronto (1987), 1987 CanLII 8495 (ON HRT), 9 C.H.R.R. D/4527; and Morin v. Noranda Inc.(1988), 1988 CanLII 8878 (ON HRT), 9 C.H.R.R. D/5245. Mere inconvenience by the delay, or the factor simply of the fading of memories due to the passage of time, are not enough in themselves to establish prejudice, but can be taken into account when assessing the credibility of witnesses and in fashioning an appropriate remedy. See Meissner v. 506756 Ontario Ltd. (1989), 1989 CanLII 9068 (ON HRT), 11 C.H.R.R. D/94; Shepherd v. Bama Artisans Inc.(1988), 1988 CanLII 8890 (ON HRT), 9 C.H.R.R. D/5049; and Hyman, supra, at D/621, para. 5619.

11Boards of inquiry require a demonstration of significant prejudice caused by the delay, such as key witnesses being no longer available or other insurmountable problems of proof. In Guthro v. Westinghouse Canada Inc. (No. 2)(1991), 1991 CanLII 13135 (ON HRT), 15 C.H.R.R. D/388 at D/391 [para. 21], Chairperson M.R. Gorsky stated:

The prejudice to a party occasioned by delay must indicate more than inconvenience; it must be sufficiently oppressive to prevent a response or defence from being made. An unreasonable delay creates an insurmountable problem: a key witness has died, documentary evidence has been destroyed, or some other circumstance has limited the opportunity to defend against the allegations in the complaint.

12A party is also obliged to take steps to preserve its evidence. See Mears v. Ontario Hydro(1983), 1983 CanLII 4713 (ON HRT), 5 C.H.R.R. D/1927 at D/1928, para. 16511; Guthro v. Westinghouse Canada Inc., supra; Lutz v. Gray's Lakehouse Restaurant(1990), 1990 CanLII 12511 (ON HRT), 13 C.H.R.R. D/158 at D/160; and Munsch v. York Condominium Corp. No. 60 (unreported, July 2, 1992, Ont. Bd.Inq.) [now reported 1992 CanLII 14246 (ON HRT), 18 C.H.R.R. D/339].

13Sections 7 and 11 of the Charter of Rights and Freedoms [Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11] are inapplicable with respect to this issue and a board of inquiry proceeding under the Code. See Quereshi, supra, at D/4530; Shepherd, supra, at D/5050; Commodore Business Machines Ltd. v. O.H.R.C. (1984), 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833; Dennis v. Family and Children's Services of London and Middlesex(1990), 1990 CanLII 12499 (ON HRT), 12 C.H.R.R. D/285 at D/288, D/289; Dudnik v. York Condominium Corp. No. 216 (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325, and Gale v. Miracle Food Mart (unreported, May 8, 1992, Ont. Bd.Inq.), interim decision at pp. 7–15 [now reported 1992 CanLII 14232 (ON HRT), 17 C.H.R.R. D/495].

14The respondents relied upon Motorways Direct Transport Ltd. v. Canada (Human Rights Commission) (1991), 1991 CanLII 13186 (FC), 36 C.C.E.L. 201 [16 C.H.R.R. D/459] (F.C.T.D.) in which a writ of certiorari was issued by Walsh D.J. against the Canadian Human Rights Commission quashing its decision to proceed with an investigation on the basis the Commission was guilty of laches, a breach of natural justice and a failure to observe procedural fairness in light of a delay of more than four years in proceeding with complaints (at pp. 211–14). The Court in Motorways followed Kodellas v. Saskatchewan (Human Rights Commission) (1989), 1989 CanLII 284 (SK CA), 10 C.H.R.R. D/6305 (Sask. C.A.) in which the inquiry was not held until four years after the complaint was served, with the result that the Court found there was unreasonable delay such that ss. 7 and 11(b) of the Canadian Charter of Rights and Freedoms was operative.

15The reasoning of the Kodellas decision, supra, has not been as yet followed in Ontario. See Crane v. McDonnell Douglas Canada Ltd., (unreported, January 31, 1993, Ont. Bd.Inq.) [now reported 1993 CanLII 16506 (ON HRT), 19 C.H.R.R. D/422] ruling on motions at pp. 8–15; Hall v. A-I Collision and Latif (unreported, August 28, 1992, Ont. Bd.Inq.) [now reported 1992 CanLII 14233 (ON HRT), 17 C.H.R.R. D/204] at pp. 23–38; and Lampman v. Photoflair Ltd. and Smith (unreported, September 28, 1992, Ont. Bd.Inq.) [now reported 1992 CanLII 14284 (ON HRT), 18 C.H.R.R. D/196] at pp. 9–15.

16In summary, in my view these boards of inquiry decisions correctly point out the several distinctions between a civil proceeding under the Code in contrast to criminal proceedings and their impact on "life, liberty and security of the person." As well, Kodellas, supra, made a questionable distinction between stressful complaints (to which s. 7 would apply) and less stressful complaints (to which s. 7 would not apply). Kodellas also draws an unattractive distinction between individual respondents to whom s. 7 is available, and corporate respondents.

17Finally, while the Federal Court in Motorways, supra, purported to rely upon the test developed in Kodellas, supra, as being applicable to a corporate respondent, the Court in Kodellas had in fact declined to apply the same standard to a corporate respondent. I accept the reasoning of Chairperson Hubbard in Ghosh v. Domglas Inc. [(1991), 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16] at D/19 [para. 27] in stating:

With all respect, I have some difficulty in reconciling [the argument of Walsh J. in Motorways] with Kodellas. Although a corporation cannot avail itself of the rights conferred by s. 7 of the Charter, there does not appear to be any reason to refuse to extend to it the protection afforded by the rules of natural justice. If that is so, the question then becomes whether the unreasonable delay (at least as it is determined by the Kodellas criteria) is per se a breach of [these rules. Either such unreasonable delay is in itself a breach of] natural justice and therefore, independently of s. 7, constitutes a basis upon which to stay the proceedings, or . . . is not. If it is, it seems odd that the Court of Appeal in Kodellas refused to stay the proceedings against the corporate respondent despite the breach of natural justice which (ex hypothesi) it must have found. If it is not, then the argument is impaled on the invalidity of its first premise.

It is noted that Chairperson R.W. Kerr in Shreve v. Corporation of the City of Windsor (No. 2) (March 3, 1993, unreported as yet, Ont. Bd.Inq.) [now reported 1993 CanLII 16462 (ON HRT), 18 C.H.R.R. D/363] found that "the rationale of the decision in Kodellas and hence in Motorways is simply not applicable under the Ontario Code" (at pp. 15–16 [D/371, para. 63]).

It is my opinion Kodellas and Motorways are not to be followed by Ontario boards of inquiry unless and until an Ontario court rules otherwise.

18After a thorough review of the case law with respect to the issue of dismissal because of delay, Chairperson H.A. Hubbard in his interim decision of November 22, 1991, in Ghosh, supra, stated [at D/25, para. 59]:

In view of the overriding public interest and the Board's duty to act expeditiously following its appointment I would agree with the opinion expressed in Meissner, supra (p. D/96), that the test for exercising this discretion is that which is set out in the Hyman case, supra, in which the Board (at p. D/621) said that:

. . . Having been assigned . . . a statutorily defined task of undertaking an inquiry to ascertain certain facts, the board of inquiry should proceed to attempt to do so, notwithstanding the passage of considerable time, unless the passage of time has made fulfilment of its task impossible. In the absence of such, admittedly unlikely, circumstances, the proper course, in my opinion, is for the board of inquiry to proceed . . .

Adopting and applying this test to the instant situation, I have no doubt in dismissing the motion to dismiss because of delay. The Board finds that although there has been a very considerable delay, it has not been occasioned by either party; that although the delay has caused some prejudice to both sides, there is sufficient evidence for the Board to be able to hear and consider the matter fairly; and that to allow the respondent's motion would be unjust to the complainant.

19This test strikes an appropriate balance between the interests of all parties to the hearing, specifically:

Ӣ the interest of the respondents in being able to respond to the allegations in the complaint and in ensuring that any findings of a contravention of the Code are made on a basis of sufficient certainty;

Ӣ the interest of the complainant, if the complaint is proven by the evidence at the inquiry, in obtaining a remedy in the only forum that is available to her; and

Ӣ the public interest (as represented by the Commission) of ensuring that any contraventions of human rights legislation are ascertained and remedied.

20A complaint can be dismissed by reason of undue delay only when the passage of time has made it impossible to continue the proceeding or, alternatively, the delay constitutes an "abuse of process" because the passage of time has so prejudiced the respondent that it would be unfair to proceed further. In the instant situation, any production records that were destroyed by the corporate respondent were apparently done so as a matter of routine within six months of the termination of employment. I am not atall convinced the so-called production records have any real relevance to the issues in this proceeding; but if they do, their lack of preservation was due to the negligence of the corporate respondent.

Although the potential witnesses purportedly have hazy recollections given the passage of time, the witnesses are available to testify.

21Subsequent to the hearing on the motion to dismiss, the decision of Professor R.W. Kerr, constituted as a Board of Inquiry, in Shreve v. Corporation of the City of Windsor, supra, was brought to my attention and counsel made written submissions in respect thereof.

22Chairperson Kerr dismissed the complaint in Shreve, supra, due to three, interrelated factors, being bias of the investigating officer, the lapse of time and restricted disclosure by the Commission, I share the views about delay expressed by Chairperson Kerr (at pp. 20 and 21 [D/373, paras. 88–89]):

In my view, the type of process contemplated by the Human Rights Code is one in which a complaint is promptly investigated and conciliated by a Commission Officer. If this is not resolved in a relatively expeditious resolution of the complaint, I think the intent is that the complaint could be forwarded to the Commissioners, who would, again promptly, determine whether the matter warranted a board of inquiry. If so, the Ministry of Citizenship, who has no discretion in the matter except as to the actual selection of the membership of the Board, would shortly appoint a board which is itself to commence a hearing within thirty days.

I have deliberately refrained from suggesting any specific time frame for this process since what is appropriate would depend on a number of factors, including the complexity of the case and the degree of cooperation received from the parties. I do think, however, the expected time frame, even in a most complex case, would certainly be less than half in the nearly six years which have elapsed here.

Having said that, in my opinion it is clear from Chairperson Kerr's decision (at p. 18) that delay in itself would not on the facts of Shreve warrant a dismissal of the complaint. He states (at p. 17 [D/371, para. 73]) "In conclusion, I am not satisfied that, even with the delay that has occurred in this case, delay alone has seriously prejudiced the ability of respondents to present their case" and further (at p. 18 [D/372, para. 78]) "the death of De Shield has not deprived the Respondents of the type of key witness such as would constitute prejudice depriving them of a fair hearing at this stage."

23The test applied by the boards of inquiry under s. 23 of the Statutory Powers Procedure Act, as set forth above, seems to be analogous to the test applied by civil courts in determining whether to exercise the court's inherent jurisdiction pursuant to s. 119 of the Courts of Justice Act [R.S.O. 1990, c. C.43] to dismiss an action for delay. This power of a civil court may be exercised where the court is satisfied that the default has been intentional, such as disobedience to a peremptory order of the court, or there is conduct amounting to an abuse of process of the court; or there has been inordinate and inexcusable delay on the part of the plaintiff, and such delay gives rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause serious prejudice to the defendants. The occasions on which a civil court will exercise its discretion to dismiss an action for delay are rare, and there is a heavy onus on a defendant applying to have an action dismissed for delay. See Allen v. Sir Alfred McAlpine, [1988] 2 Q.B. 299 (C.A.); Humboldt Flour Mills Co. Ltd. v. Ewen(1984), 1984 CanLII 2431 (SK CA), 36 Sask. R. 81 at 82–83 (C.A.); D'Amore Construction (Windsor) Ltd. v. The Queen in right of Ontario (1991), 1992 CanLII 7505 (ON CTGD), 7 O.R. (3d) 762 (Master Sandler) at 771–72; and Wright v. Rank City Wall Canada Ltd. (1990), 1990 CanLII 6791 (ON HCJ), 72 O.R. (2d) 44 (Master Sandler) at 52; aff'd 1990 CanLII 6658 (ON HCJ), 74 O.R. (2d) 224n (H.C.J.).

24Having dismissed the motion to dismiss for reason of delay, I mention as an aside that I have considerable sympathy for both the respondents and the complainant in having to suffer with any system that takes seven years to get a legal dispute resolved by a tribunal of first instance. It should be possible to develop a dispute resolution mechanism that could at minimal cost make binding determinations on human rights issues expeditiously, while reserving the right of appeal for a hearing de novo where contentious issues remain or important points of law need to be determined.

25The respondents also submit that there has been inadequate and untimely disclosure, and s. 8 of the Statutory Powers Procedure Act has not been complied with. However, further particulars of the evidence that the Commission intends to introduce at the hearing have been provided by the Commission to the respondents by a letter of March 11, 1993, from Commission's counsel to respondent's counsel. Should respondents be taken by surprise by any evidence sought to be introduced at the hearing, the appropriate course to consider is to grant an adjournment (see Dubajic v. Walbar Machine Products of Canada Limited (1980), 1980 CanLII 3911 (ON HRT), 1 C.H.R.R. D/228 at D/229, paras. 2006–8). Professor Kerr discussed at length the law and requirements relating to disclosure in Shreve, supra, at pp. 18–24, and I agree with his analysis. In my opinion, the Commission has met the requirements of disclosure at this point in time.

PRELIMINARY MOTION TO DISMISS THE COMPLAINT ON THE BASIS THAT THERE WAS NO DUTY TO ACCOMMODATE IN THE CODE AT THE TIMES RELEVANT TO THE COMPLAINT

26The complaint involves a dismissal from employment August 22, 1986. The complainant alleges this was discrimination because of her handicap, as she had a recurrence of a wrist injury. Presumably, the complainant will argue that although the wrist injury may have meant she could not work on the product line assembling "car window regulators" this was only a temporary problem or, at the least, there were other jobs with the corporate respondent that she could still perform.

27The Human Rights Code, 1981 introduced "handicap" as a prohibited ground of discrimination when it was proclaimed in force June 15, 1982.

I reviewed at length the regime introduced into the Code relating to the newly prohibited ground of "handicap" in Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170, this being the first complaint to come before a board of inquiry relating to "handicap."

28Section 16(1) of the new Code provided as follows until amendments in 1987.

16(1) A right of a person under this Act is not infringed for the reason only,

(a) that the person does not have access to premises, services, goods, facilities or accommodation because of handicap, or that the premises, services, goods, facilities or accommodation lack the amenities that are appropriate for the person because of handicap; or

(b) that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap.

I interpreted this provision together with s. 10 in Cameron, supra (at D/2178–D/2180, paras. 18366–68, 18375–84 and 18387), to require affirmative steps to reasonably accommodate an individual's handicap.

In addition to the ordinary powers of a board of inquiry in making an order (subsection 40(1)), upon a finding that there is an infringement of a complainant's right under Part I and a contravention of section 8, subsections 40(2) and (3) allow a board, where the discrimination has been because of handicap, to order the contravenor to take such measures as will allow access or provide amenities or take measures to adapt equipment or duties, to meet the needs of the handicapped, unless the costs of compliance would cause undue hardship and subject to the regulations.

However, a right is not infringed only by reason of lack of access to premises, services, goods, facilities or accommodation because of handicap, or accommodation lacks the amenities: paragraph 16(1)(a).

Thus, inherent to paragraph 16(1)(b) and to subsections 40(2) and (3) is the policy premise that there must be affirmative steps to reasonably accommodate an individual's handicap.

The new Code is clear in not requiring intent to discriminate, this being set forth expressly by legislative provisions in section 10, and being the position arrived at through the case law as reviewed in Rand in the evolving interpretation of the Code . . .

As well, as section 10 of the new Code refers to any situation identified by a "prohibited ground," paragraph 10(a) thus makes clear that a respondent who has enacted a neutral employment condition which has a discriminatory result, may successfully defend by establishing that "the requirement, qualification or consideration is a reasonable and bona fide one in the circumstances."

Finally, it seems clearly implicit to section 10 of the new Code that the onus falls upon the employer to bring himself within the exceptional situation constituting a defence, also being that approach reached by the evolution of the case law under the old Code.

As discussed in Rand, paragraph 10(a) of the new Code provides the employer with a defence "where . . . the requirement . . . is reasonable . . . in the circumstances."

That is, the "reasonable . . . in the circumstances" standard of section 10 of the new Code embraces two facets — the employer must show not only that there is an objective real need (it is "reasonable") for the general employment requirement that constructively discriminates against the particular employee, but also that this need of the employer cannot be met (in "the circumstances," it is not "reasonable" to be able to do so) by an accommodation of the particular employee. (Alternatively, the employer would have a successful defence if she could show that while reasonable accommodation was possible, it was offered and refused).

When paragraph 16(1)(b) is considered in conjunction with the powers to remedy conferred upon a board of inquiry under section 40, the overall scheme of the legislature becomes clear.

Paragraph 16(1)(b), like section 10, provides for an objective standard that an employer must meet to bring herself within the exception. However, paragraph 16(1)(b), unlike section 10, only partially requires of an employer that she attempt reasonable accommodation of the complainant. Paragraph 16(1)(b) refers to "essential" duties, so that it implicitly requires an employer to reasonably accommodate an employee with a handicap by ignoring her [inability] to perform or fulfil non-essential duties (see the discussion supra). However, the employer's obligation to reasonably accommodate goes further if there is an infringement by discrimination because of handicap. Subsections 40(2) and (3), provide that a board may order an employer to accommodate the handicapped complainant.

Section 40 places a specific statutory obligation upon a respondent to reasonably accommodate a handicapped complainant once a finding of discrimination has been made. It is interesting to note that the standard imposed regarding cost of the accommodation is not phrased as being one of "unreasonable cost" but rather "undue hardship," the term seen in American legislation. These subsections go to the powers of a board of inquiry to provide an effective remedy. Subsections 40(2) and (3) do not require the complainant to file a complaint that specifically seeks accommodation — the Board may on its own initiative make a finding and consequential order on the point.

These provisions of the new Code strengthen the argument that inherent to the meaning of the defence of "reasonable . . . in the circumstances" provided for in paragraph 10(a) is the requirement that the respondent has an obligation to reasonably accommodate a complainant: (for example, in respect of religious beliefs or practices: see Rand, supra.) In section 16 of Bill 209, 1980, the standard was whether the complainant's handicap precluded performance of the essential duties "in the particular circumstances;" however, in the final version of the Code, as enacted, the reference to "in the particular circumstances" was dropped. This seems to have been appropriate because the aspect of reasonable accommodation for the handicapped is covered by the word "essential" in paragraph 16(1)(b) together with the remedies afforded by subsection 40(2) and (3).

Finally, it is to be noted that subsections 40(2) and (3) use the term "undue hardship" rather than the term "reasonable . . . in the circumstances" as seen in paragraph 10(a). The phrase "undue hardship" relates expressly to the "costs" of a reasonable accommodation. This language gives some support to the view that where costs, as meaning dollars, is the concern in considering the issue of reasonable accommodation, "undue hardship" is the most apt phrase, and perhaps more specific, and hence demanding, than the word "reasonable" which is, possibly, broader and more flexible. However, this is to dwell upon the general standard or test for reasonable accommodation inherent as an aspect to a consideration of a respondent's defence to a situation of constructive discrimination. What is clear with the coming into force of the new Code is that the express, legislated standard is "reasonable . . . in the circumstances" for section 10 considerations, and for handicap complaints purposes paragraph 16(1)(b) coupled with subsections 40(2) and (3).

The "reasonable and bona fide" clause is an exception to the general rule of section 10. Therefore, once a complaint makes out a prima facie case of discrimination because a seemingly neutral condition results on unequal treatment, the onus is upon the respondent to show that the condition was "reasonable and bona fide."

29Significant changes to ss. 10 and 16 were enacted by S.O. 1986, c. 64, s. 18(8)–(10) whereby the existing provisions were repealed and new provisions substituted with reasonable accommodation being expressly referred to in the new s. 16(1)(a) of the Code. These provisions were not proclaimed in force until April [15] 1988, so they do not apply to the complaint before this Board of Inquiry. However, for the reasons given in Cameron, supra, in my opinion there was a duty of reasonable accommodation by s. 16(1)(b) of the Code incumbent upon an employer at the times relevant to this complaint.

CONCLUSION

30For the reasons given the preliminary motions to dismiss the complaint are dismissed.