Findlay v. Mike's Smoke and Gifts (No. 4)

1993-10-22

Ontario Board of Inquiry

CHRR Doc. 95-004

Pat Findlay and Marty McKay Complainants

v.

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

Dates of Complaints: April 13 and 15, 1988

Date of Decision: October 22, 1993

Before: Ontario Board of Inquiry, Ruth Hartman, Loretta Mikus and Frederick Zemans

Reasons for judgment by: L. Mikus

Concurring reasons by: F.H. Zemans

Dissenting reasons by: R. Hartman

Comm. Decision No.: 513C

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

BOARDS OF INQUIRY / TRIBUNALS — authority to investigate human rights commission's behaviour — HUMAN RIGHTS COMMISSIONS — appointment process for board/tribunal — obligation for conciliation and investigation procedures followed to effect a settlement — failure of commission to comply with statutory requirements

SETTLEMENT — responsibility of human rights commission for failure to reach settlement — JURISDICTION — loss of jurisdiction due to inadequate efforts to effect a settlement — PROCEDURE — procedural fairness — INTERPRETATION OF STATUTES — definition of "shall"

Summary: This is an interim decision of the Board of Inquiry in the matter of complaints that women are discriminated against with respect to public services by the display and sale of pornographic magazines in neighbourhood convenience stores.

The respondent Four Star Variety seeks an order dismissing the complaints, declaring that the Board of Inquiry lacks jurisdiction to hear the complaints, and ordering costs in favour of the respondents.

The respondent argues that the Board of Inquiry lacks jurisdiction because it failed to make adequate efforts to settle this complaint. The Commission is required by the Code to make conciliation efforts. Those efforts must be made and must fail before the Commission can request the Minister to appoint a board of inquiry.

In a split decision, the majority concludes that the Board of Inquiry does not have jurisdiction to proceed because the Commission failed to make satisfactory efforts to settle the complaint, and efforts to settle are a condition precedent to the appointment of a Board of Inquiry.

The respondent Four Star Variety received a summary of the investigation and a letter indicating that because the complaint had not been resolved through normal procedures it would be referred to the Commission for a decision as to whether a board should be appointed. The letter invited the respondent to reply and indicated that any reply would be sent to the Commission for review.

The majority finds that the onus is on the Commission to endeavour to effect a settlement, not on the respondent to come forward and make a settlement offer.

In light of the Commission's failure to discharge its obligations, the majority finds that the Board of Inquiry has no jurisdiction to proceed.

Dissenting, Ms. Hartman finds that failure to settle complaints pursuant to s. 33 is not a condition precedent to a valid appointment of a board pursuant to s. 38. It is her view that a court may on judicial review determine that the appointment of a board of inquiry is improper because of the Commission's actions prior to the appointment. However the Commission's actions are not properly the subject of a board of inquiry's determination of its prima facie jurisdiction.

Ms. Hartman finds that a board of inquiry should not be inquiring into and determining the appropriateness of the Commission's actions prior to its appointment because this would have the effect of turning the focus of board inquiries to bureaucratic procedures and away from the merits of the complaint before it. Both the Ombudsman and the courts can deal with errors of procedure made by the Commission and any unfairness they create. The conditions precedent for the appointment of a board of inquiry lie in s. 36 only. It states that a Commission may request appointment of a board of inquiry where a) it failed to effect a settlement b) it considered a board of inquiry appropriate and c) concluded that the evidence gathered warranted an inquiry. Since these conditions were met, Ms. Hartman finds that the Board has jurisdiction to proceed.

Ms. Hartman finds further that even if making satisfactory settlement efforts are a condition precedent to the Board's jurisdiction to proceed, this requirement was in fact met. In the overall scheme of the Code, the words "failed to effect a settlement" mean that some effort must be made to explore settlement possibilities or to leave this open as an option. It cannot mean that settlement at any cost is required. The Commission did not engage in face-to-face settlement discussions with the respondents but it was not unreasonable for the Commission to conclude that in the circumstances settlement was unlikely. Further if any unfairness exists because of the feebleness of the Commission's settlement efforts, this can be cured through the Board of Inquiry hearing.

Ms. Hartman finds that the Board has jurisdiction to proceed to a hearing on the merits. Having so found, Ms. Hartman considers two other motions made by the respondent Four Star Variety.

The first is a motion that the complaints be dismissed on the merits as a preliminary matter because they reveal no violation of the Code. However, Ms. Hartman finds that without hearing the evidence it would only be proper to dismiss a complaint in an extremely obvious case of the complaint being outside the ambit of the Code. This is such a case.

The second motion is that the complaints should be dismissed on constitutional grounds because they concern the sale and distribution of pornographic magazines and this is a federal, not a provincial, matter.

Ms. Hartman concludes that the motion is premature and can only be properly considered on the basis of a full hearing of the evidence.

Ms. Hartman would dismiss all three motions and proceed to a hearing on the merits.

[Ed. Note: See also 1993 CanLII 16430 (ON HRT), 21 C.H.R.R. D/11, 1993 CanLII 16454 (ON HRT), 21 C.H.R.R. D/15 and 1994 CanLII 18437 (ON HRT), 21 C.H.R.R. D/42.]

CASES CITED

Alberta (Human Rights Comm.) v. Pro Western Plastics Ltd., 1983 ABCA 185, [1983] 5 W.W.R. 730, 1983 CanLII 4706 (AB CA), 4 C.H.R.R. D/1579 (Alta. C.A.): 23, 42, 64, 101

Canadian Odeon Theatres Ltd. v. Huck (1985), 1985 CanLII 183 (SK CA), 6 C.H.R.R. D/2682 (Sask. C.A.): 131

Canadian Odeon Theatres Ltd. v. Huck (No. 2) (1981), 1981 CanLII 4349 (SK HRT), 2 C.H.R.R. D/521 (Sask. Bd.Inq.): 131

Consumers Distributing Co. v. Ontario (Human Rights Comm.) (1987), 1987 CanLII 4055 (ON HCJ), 8 C.H.R.R. D/3901, 24 Admin. L.R. 1 (Ont. Div.Ct.): 33, 109

F.W.T.A.O. v. Ontario (Human Rights Comm.) (1988), 1988 CanLII 4794 (ON HCJ), 10 C.H.R.R. D/5877 (Ont. Div.Ct.): 29, 31, 74, 119

G.A.T.E. v. Vancouver Sun, 1979 CanLII 225 (SCC), [1979] 2 S.C.R. 435: 132

Great Atlantic and Pacific Co. of Canada v. Ontario (Human Rights Comm.) (No. 3) (1993), 1993 CanLII 16525 (ON CTGDDC), 18 C.H.R.R. D/97 (Ont. Ct. (Gen.Div.)): 23

Kupeyan v. Royal College of Dental Surgeons of Ontario (1982), 1982 CanLII 1966 (ON HCJ), 37 O.R. (2d) 737 (Div.Ct.): 23

MacKay v. Manitoba (1989), 61 D.L.R. (4th) 686 (S.C.C.): 150, 153

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.): 20

Nicholson v. Haldimand-Norfolk Regional Police Commissioners Board, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311: 30

Nishimura v. Ontario (Human Rights Comm.) (1989), 1989 CanLII 4317 (ON HCJ), 11 C.H.R.R. D/246 (Ont. Div.Ct.): 33

Nova Scotia (Board of Censors) v. McNeil, 1978 CanLII 6 (SCC), [1978] 2 S.C.R. 662, 84 D.L.R. (3d) 1: 149

Ontario (Ministry of Health) v. Ontario (Human Rights Comm.) (1993), 1993 CanLII 5604 (ON CTGDDC), 20 C.H.R.R. D/421 (Ont. Ct. (Gen.Div.)): 44, 105

Posluns v. Toronto Stock Exchange, 1968 CanLII 6 (SCC), [1968] S.C.R. 330, 67 D.L.R. (2d) 165 (S.C.C.): 33

Prudential Insurance Co. of America v. Ontario (Human Rights Comm.) (November 15, 1989), (Ont. Div.Ct.) [unreported]: 33

R. v. Butler, 1992 CanLII 124 (SCC), [1992] 1 S.C.R. 452: 151

S.E.I.U., Local No. 333 v. Nipawin Dist. Staff Nurses Assn., 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382: 45

Selvarajan v. Race Relations Board, [1976] 1 All E.R. 13: 30

University of British Columbia v. Berg (1993), 1993 CanLII 89 (SCC), 18 C.H.R.R. D/310 (S.C.C.): 133

Williams and Kemptville Dist. Hospital (Re) (1986), 1986 CanLII 2503 (ON HCJ), 55 O.R. (2d) 633 (H.C.J.): 33

Yukon Order of Pioneers v. Gould (1993), 1993 CanLII 3415 (YK CA), 100 D.L.R. (4th) 596, 18 C.H.R.R. D/347 (Y.T.C.A.): 129

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. 2: 6

Criminal Code, R.S.C. 1985, c. C-46, s. 163: 146, 152

Alberta

Individual's Rights Protection Act, S.A. 1972, c. 2, s. 17(1): 42

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

Preamble: 137, 160

s. 1: 1, 127, 137, 144, 156

s. 9: 1, 137, 156

s. 10: 137

s. 10(2): 137

Part III: 52

s. 29: 52, 71

s. 32(2): 117

s. 33: 47, 66, 160, 162

s. 33(1): 3, 13, 20, 55, 58, 159, 168

s. 34: 13, 72

s. 36: 68, 72, 162

s. 36(1): 55, 74, 76, 159

s. 36(2): 73

s. 39: 79

s. 41: 82

Interpretation Act, R.S.O. 1990, c. I.11: 60

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22

s. 23: 25

s. 23(1): 24

Yukon

Human Rights Act, S.Y. 1987, c. 3

s. 4: 130

s. 8(a): 129

AUTHORITIES CITED

Black's Law Dictionary, 5th ed. (St. Paul, Minn.: West Publishing Co., 1979): 61

Wade, William, Sir, Administrative Law, 6th ed. (Oxford: Clarendon Press, 1988): 165

REASONS BY L. MIKUS

1This Board of Inquiry was appointed in January 1993 by the Minister of Citizenship, the Honourable Elaine Ziemba, in respect of complaints lodged by Ms. Pat Findlay and Dr. M. McKay against three variety stores, namely Mike's Smoke and Gifts, Jug Mart and Four Star Variety. The complaints allege that, by displaying and selling certain magazines in stores that offer a general service to the public, an environment that is hostile to and discriminates against women is created. The complainants allege that their right to equal treatment with respect to services, goods and facilities has been infringed because of their sex, in violation of ss. 1 and 8 [of] the Human Rights Code, R.S.O. 1981, c. 53, as amended (hereinafter referred to as the Code) which reads as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap.

2. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

2Three preliminary issues were raised by the respondent Four Star Variety questioning the Board's jurisdiction to proceed. The motion by Four Star Variety is for an order:

a. dismissing the complaints of P. Findlay and M. McKay filed on April 15, 1988 and April 13, 1988 (the "Complaints");

b. declaring that the Board lacks jurisdiction to hear the Complaints;

c. an award of costs in favour of the respondents; and

d. such further and other orders that counsel may advise and this Board of Inquiry may grant.

3The first issue raised by the motion is that the Human Rights Commission did not meet its statutory obligation to endeavour to effect to settle the complaint as required under s. 32(1) (now s. 33(1)) of the Code [R.S.O. 1990, c. H.19]. Mr. Israel, for the respondent Four Star Variety, characterized that mandatory conciliation process as a condition precedent to this Board's jurisdiction. The failure of the Commission to follow its own procedure, in his submission, is fatal to this Board's jurisdiction to continue.

4The second issue raised by the motion was that the Board lacked jurisdiction to hear this complaint because, on its face, the complaint does not disclose a violation of the Code. The respondent's position is that, even if all of the allegations in the complaint were accepted as proven, including the fact that the magazines are stereotypically demeaning to women and create a hostile environment, the complaint must still fail because it does not establish there has been an offence under the Code.

5The respondent Four Star Variety took the position that the magazines were legally displayed, complied with all relevant Criminal Code and Toronto by-law requirements and were available to both men and women equally. There are, in the submission of the respondent Four Star Variety, no grounds upon which this Board could find that the respondents have been in breach of its obligations under the Code.

6The Canadian Civil Liberties Association (hereinafter referred to as the "CCLA") spoke in support of the respondent's motion. In addition, the CCLA raised a third issue, namely, if this Board should reject the argument of the respondent and accept jurisdiction over this complaint, there are constitutional grounds upon which this Board should refuse to continue. Mr. Laskin, representing the CCLA, took the position that any finding from this Board that the sale of those particular magazines was a violation of the Code would be a[n] infringement on the respondent's freedom of speech as guaranteed under s. 2 of the Canadian Charter of Rights and Freedoms [Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11]. As well, in Mr. Laskin's submission, such a finding would be outside the jurisdiction of this Board because it would constitute an invasion by the province into an area reserved to the federal government, that is the field of criminal law.

7For reasons set out later in this decision, I am of the view that these complaints should be dismissed on the ground that the Commission did not comply with the condition precedent that it endeavour to effect a settlement before it requested the appointment of a board of inquiry. Professor Zemans concurs in the result, Ms. Hartman dissents.

8The Board is in agreement that the respondent's motion must fail on the other two grounds. I concur with Ms. Hartman's opinion that the question of whether there has been a violation of the Code is the very issue before this Board and can only be determined after a full hearing, including evidence and argument. I also concur with her decision that the respondent's motion to dismiss these complaints on constitutional grounds is premature and should be dismissed.

The Motion to Dismiss on the Grounds that the Commission Has Failed to Satisfy a Condition Precedent

9The complaints read as follows:

1. I have had occasion to purchase items in the above-mentioned neighbourhood convenience store. While in this store, I noticed that it display[s] and sells many different titles of pornographic magazines.

2. It is my view that because of their stereotypical and demeaning portrayal of women, the display and sale of these magazines creates a negative environment for me as well as for other women.

3. On January 10, 1988, Ms. McKay and I approached the proprietor of the store to request that she stop displaying and selling the pornographic material. She became very hostile and started shouting at us, advising us that the magazines were there for men to buy and were none of our business.

4. Again, on January 25, 1988, we returned to the store and repeated our request. She again became hostile and shouted at us. She refused to listen to our request.

5. On February 1, 1988 Ms. McKay and I wrote to the proprietor's [sic] to repeat our request.

6. As of this date, to the best of our knowledge, the magazines at issue remain on display and for sale in the store.

7. I believe that the display and sale of magazines such as those referred to in this complaint, in a store that offers a general service to the public, creates an environment which is hostile to and discriminates against women. I believe, therefore, that my right to equal treatment with respect to services, goods and facilities has been infringed because of my sex, in violation of Sections 1 and 8 of the Human Rights Code, R.S.O. 1981, Chapter 53, as amended by 1984, C. 58 and 1986, C. 64, s. 18.

The Facts

10All the respondents in this proceeding operate small convenience stores in Toronto. Their stores offer the typical goods found in convenience stores in most neighbourhoods. They also sell some or all of the following magazines: Swank, D-Cup, Adult Video Stag, Playboy, Penthouse, Hustler, Private Parties, Hot Shots, Portfolio, Foreplay, Velvet Shaved Pussy, Young Tits, Couples in Heat.

11Following the filing of the complaint, an investigative report was prepared by Ms. L. Ackroyd, an officer with the Commission. That report, despite some comment on the proximity of other reading material, stated that, in the opinion of the investigator, the displays were largely in compliance with the City of Toronto by-law respecting the sale of adult magazines.

12Ms. Ackroyd set out in some detail the content of some of the magazines named above and noted that the majority of the photos in the magazines were of individual women or mixed sex couples and that the text in the magazines was aimed at men. She concluded by stating that the betrayal of women was "arguably stereotypical and demeaning." In considering whether there was a "poisoned service environment" for women, she noted the following:

Although many women have come to ignore the magazines in question, those women who acknowledge or examine them will probably feel insulted by at least some of them.

The magazines are on display in neighbourhood convenience stores where people, including the complainants, would ordinarily buy milk, etc.

Although some men may be offended by some of the material on the grounds of taste, the great majority of purchasers are apparently male and the magazines are basically aimed at and intended for men.

The investigator's report concluded with the following question "Does this constitute a contravention of the Human Rights Code?"

Argument

13Section 33(1) of the Human Rights Code reads as follows:

33(1) Subject to section 34, the Commission shall investigate a complaint and endeavour to effect a settlement.

Section 34 reads as follows:

34(1) Where it appears to the Commission that,

(a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;

(b) the subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith;

(c) the complaint is not within the jurisdiction of the Commission; or

(d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay,

the Commission may, in its discretion, decide to not deal with the complaint.

14Mr. Israel, for the respondent Four Star Variety, asserted that the Commission has failed to comply with the mandatory requirement that, before forwarding the matter on to a hearing, it endeavour to effect a settlement. He asked the Board to find that requirement was a condition precedent to the jurisdiction of the Board to hear the complaint.

15He based his argument on the affidavit of Sook Ja Kwon and Jung Sik Kwon, proprietors of the respondent store and Peter Kwon, their son, as well as the reply of the Commission itself. According to the affidavit evidence of Sook Ja Kwon, she was working in the store the day the complainants entered the store and saw the magazines at issue. The complainants returned to the store on another occasion and, at some point in both visits, she and her spouse were asked to remove the magazines from the display rack. Some time later they received a letter from the complainants requesting the removal of the magazines. The respondent refused to do so. In her affidavit, Sook Ja Kwon claimed that she first became aware of the complaint of Dr. McKay and Ms. Findlay when she received the actual complaint from the Commission. The next time she heard from the Commission was by way of a letter dated May 10, 1991, signed by Patrice McKenzie, Regional Manager for the Toronto Central Region of the Commission. That letter stated as follows:

As you know, we have been unable to resolve these complaints through our normal procedure of investigation and conciliation.

For this reason, the complaints will be referred to the Commission for a decision as to whether or not to request the Minister of Citizenship to appoint a Board of Inquiry pursuant to Section 35 of the Human Rights Code, 1981.

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. If you plan to reply, please send your submission to me by May 31, 1991.

The Chief Commissioner will advise you in writing of the Commission's decision.

The letter is apparently a form letter that is issued whenever the Commission has been unable to effect a settlement and intends to request the appointment of a board of inquiry.

16It is Ms. Sook Ja Kwon's contention that she was not been [sic] consulted by the Commission or by the complainants except for the requests by the complainants at the commencement of the process. Mr. Jung Sik Kwon stated in his affidavit that he was surprised to receive the letter dated May 10, 1991, referred to in Ms. Sook Ja Kwon's affidavit because he had not been consulted by the Commission or by the complainants in an attempt to discuss the complaints.

17A respondent questionnaire, completed by Peter Kwon, set out the position of the respondents as follows:

Writing on behalf of Mrs. Sook Ja Kwon, I found that in the complaint in paragraphs 3 and 4 are quite one-sided. They do not mention that they went behind the cash-counter without permission and aggressively seeking [sic] the store vendor's [sic] permit. In fact they were quite rude and tried to intimidate Mrs. Kwon by threatening to call the Police. As a store vendor, Mrs. Kwon is doing nothing illegal by selling . . . explicit materials; therefore Mrs. Kwon cannot be made a scapegoat for selling these materials . . . I believe that these two ladies are on some crusade to decide what society should or should not read and that I find very disturbing in a society in which democracy is the cornerstone of all our life activities. Freedom of choice is at issue here and because Mrs. Kwon uses this right by selling sexual literature therefore she should not be penalized because the ladies feel censorship is their right. [Emphasis in original.]

18He also deposed, on June 11, 1993, that he was in the store the day the investigator visited the store and stated:

During that visit, no attempts were made by the officer to settle the Complaints. In fact, the officer did not discuss even the possibility of resolving the Complaints at all. Further, the officer advised me not to worry about the Complaints.

19More significantly, in its reply to the motion, the Commission conceded that it did not engage the respondents in any conciliation discussions. It asked the Board to conclude, from the limited exchange between the complainants and the respondent Four Star Variety, that settlement could not have been achieved and that further efforts to settle were unnecessary in the circumstances.

20The argument, as advanced by Mr. Israel, is that, on a simple reading of s. 33(1) of the Code, it should be clear that the Commission has an obligation to investigate a complaint and to endeavour to effect a settlement. That is a mandatory requirement on the Commission. Mr. Israel suggested that the Board consider a previous decision where the same argument was considered, namely, Re McMinn v. Sault Ste. Marie Professional Firefighters Association (1986), 1986 CanLII 6521 (ON HRT), 7 C.H.R.R. D/3458 wherein the Board stated it was sceptical as to the propriety of the Commission ignoring s. 33 entirely and proceeding directly to a board of inquiry without fulfilling its obligation to investigate and endeavour to effect a settlement.

21Mr. Israel has argued that the letter of May 10, 1991, while admittedly a form letter, was simply incorrect where it stated that the Commission was satisfied by the officer's review of the facts that a settlement could not be achieved. Nowhere in the case summary, asserted Mr. Israel, is there any determination by the investigating officer that a settlement could not be achieved. In fact, the investigator's report concluded with a question as to whether there had been a violation of the Code.

22The letter of May 10, 1991, stated that, if the respondents desired, they could reply to the report. The fact is that the case summary forwarded to the respondents did not warrant a reply. The Commission argued that the respondents were given an opportunity to respond and chose not to. That is not the same as an invitation to respond. Mr. Israel argued that the obligation was not on the respondents to reply but rather on the Commission to make efforts to approach the respondents and attempt to conciliate the complaint. Mr. Israel argued that there was a statutory duty to endeavour to effect a settlement. That duty was on the Commission. The Commission cannot slough off that duty by suggesting that it was up to the respondents to take the next step. They simply cannot shift the onus to the respondents to initiate or continue settlement discussions. The obligation was on them to make the effort and they did not. That failure cannot be cured. It was a statutory condition precedent to the appointment of this Board and a failure to meet that statutory obligation renders the appointment of this Board null and void. It is not, as the Commission contends, a procedural deficiency. It is, according to Mr. Israel, a jurisdictional deficiency.

23Mr. Israel referred to the following cases in support of his argument: Alberta Human Rights Commission v. Pro Western Plastics Ltd., 1983 ABCA 185, [1983] 5 W.W.R. 730 [1983 CanLII 4706 (AB CA), 4 C.H.R.R. D/1579] (Alta. C.A.); Re Kupeyan v. The Royal College of Dental Surgeons of Ontario (1982), 1982 CanLII 1966 (ON HCJ), 37 O.R. (2d) 737 (Div.Ct.) and Re [Great] Atlantic and Pacific Company of Canada v. Ontario Human Rights Commission (unreported) June 7, 1993 [now reported 1993 CanLII 16525 (ON CTGDDC), 18 C.H.R.R. D/97] (Ont. Ct. (Gen.Div.)).

24Ms. Sanson, counsel for the Commission, argued that the respondent's motion should fail for these reasons: on a fair interpretation of the statute, the Commission did comply with its statutory obligations; there is no prejudice to the respondents for the Commission's failure to effect a settlement because settlement discussions may take place at any time, even up to and during the hearing; and, lastly, that failure to have face-to-face discussions with the respondent is not an abuse of process, as contemplated under s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which reads as follows:

23(1) A Tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

25Ms. Sanson argued that the only power the Board would have to consider dismissing or quashing a complaint would come from its powers under s. 23 of that Act. Under that provision the Board can make any order it deems necessary in order to rectify any procedural irregularities that may have occurred during the processing of the complaint.

26Ms. Sanson argued that the duty to endeavour to effect a settlement includes a range of possible actions. There is no obligation on the Commission to vigorously pursue settlement discussions where it is clear that the parties have entrenched positions and are unwilling to seek a compromise. The failure of the Commission to have face-to-face discussions with the respondents during the investigation process is a procedural irregularity, not a substantive breach of its obligations under the Code. That procedural irregularity can be corrected by an order from this Board. It does not, in her submission, go to the jurisdiction of this Board to continue.

27The letter of May 10, 1991, advising the respondents that the Commission believed no settlement was possible is sufficient evidence for this Board to conclude that it would have been futile to pursue conciliation discussions. Ms. Sanson argued that this Board should be prepared to assume, in the face of that letter, that no settlement was possible and therefore there was no obligation on them to pursue the matter. Indeed, it is the Commission's position that the respondents were advised that they could contact the Commission if they had anything further to add. The onus was on the respondent Four Star Variety to contact the Commission if there had been a change in their position. The Commission was entitled to exercise its discretion to determine whether or not a middle ground or compromise could be achieved in the circumstances of this case. That exercise of discretion is not subject to review by this Board.

28In stating the position of the Commission, Ms. Sanson relied on a decision of the Supreme Court of Canada (Re Harelkin and University of Regina (1979), 1979 CanLII 18 (SCC), 96 D.L.R. (3d) 14) which, in her submission, stands for the proposition that a failure to observe the rules of natural justice can be cured by a hearing de novo at a later stage. In that case, a student at the University of Regina had been informed that he could no longer continue his studies. He requested a hearing to be held under the provisions of the University of Regina Act. His request was denied. A request for a re-hearing was denied. The student did not apply to the Senate Appeals Committee, which was provided for under the Act, but instead brought an application for certiorari to quash the order of the Council and for an order requiring the University to hold a hearing. He was successful at trial, but on an appeal to the Saskatchewan Court of Appeal, that decision was overturned. On further appeal to the Supreme Court of Canada, the decision of the Court was that the appeal should be dismissed. The rationale for the dismissal was that writs of certiorari and mandamus are subject to the discretion of the courts, and should not be issued where an alternative remedy is available to an applicant. In the case before it, the alternative remedy would have been an appeal to the Senate [Appeals] Committee. The Court found that the decision of the committee was within its jurisdiction and that its failure to observe the rules of natural justice did not affect that jurisdiction. The Court stated, as well, that the decision of the committee could be appealed under the statutory powers set out in the Act. It stated that, even though it had made its original decision in the absence of the student's submissions, that failure to observe the rules of natural justice could be cured during the appeal to the Senate Committee. The fact that the student elected to appeal to the Court rather than the Senate Appeals Committee was reason enough, in the view of the majority, for them to refuse to exercise their discretion in granting the remedies sought by the applicant.

29The next case relied on by the Commission is that of F.W.T.A.O. v. Ontario (Human Rights Commission)(1988), 1988 CanLII 4794 (ON HCJ), 10 C.H.R.R. D/5877 (Ont. Div.Ct.). In that case the Federation of Women Teachers' Association of Ontario (FWTAO), as an interested party, applied for judicial review of the Ontario Human Rights Commission's decision to appoint a board of inquiry to hear and decide if the complainants had been discriminated against because of their sex when they were refused membership in the Ontario Public School Teachers' Federation (OPSTF). It filed an application alleging that the Commission had not treated it fairly in the course of its investigation, that the Commission raised an apprehension of bias against the FWTAO because of its conduct during that investigation and that it failed to deal with relevant considerations in making the decision to appoint a board of inquiry to hear those issues. The Courts rejected the FWTAO's arguments dealing with the Commission's right to request that a board of inquiry be appointed and stated, in [D/5886] para. 42775, as follows:

In my view, the Commission did make inquiries as to the possibility of settlement, but it was clear that the parties were entrenched in their respective positions either in favour or not of the current wording of By-law 1. Early on in the investigation, the OTF indicated to the Commission that conciliation would not be useful for the present time. It was not until June 30, 1988, that the OTF expressed any desire to negotiate the matter with the Commission. By this time, however, the Commission had already requested the appointment of a Board of Inquiry in the Tomen complaint. The protracted and costly Court proceedings between OTF and its affiliates and Ms. Tomen are further indicators that settlement of these complaints would have required more than herculean efforts by all involved. In my opinion, the Commission did not lack a proper statutory basis for making its decision pursuant to s. 35(1) of the Code.

30In considering the extent of the duty owed by the Commission to the applicant, the Court determined that there was at the very least, a duty to act fairly. In considering the extent of that duty, the Court cited, with approval, an excerpt from Re Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311 which, in turn, adopted an excerpt from Lord Denning in Re Selvarajan v. Race Relations Board, [1976] 1 All E.R. 13 at 327, which reads as follows:

In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences by which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or [be] exposed to prosecution of proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing, it can do everything in writing. It need not allow lawyers, it need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informant, it can give the substance only.

31Based on the conclusions of the Court in the two cases referred to above, the Court in the F.W.T.A.O. case, supra, concluded that the obligation on the Commission to act fairly included a duty to provide a fair summary of the relevant evidence to the opposing party, but did not require it to disclose its entire case.

32Ms. Sanson took the position that the Commission has gone beyond that duty in this case. The respondents have been fully aware of the details of the complaint since it was filed. Ms. Sanson asks this Board to come to the same conclusion as the Court did in the Harelkin case, supra, which is that the mere fact that the parties had been unable or willing [sic] to settle as of the date of the hearing, indicated an intransigence on the part of the respondents that confirms the Commission's opinion that settlement was not possible in the circumstances.

33In further support of its position, the Commission supplied the Board with the following cases: Re Consumers Distributing Co. Ltd. v. Ontario Human [Rights] Commission (1987), 1987 CanLII 4055 (ON HCJ), 24 Admin. L.R. 1 [8 C.H.R.R. D/3901] (Ont. Div.Ct.); Prudential Insurance Co. of America v. Ontario Human Rights Commission (November 15, 1989), unreported (Ont. Div.Ct.); Re Williams and Board of Directors of Kemptville District Hospital(1986), 1986 CanLII 2503 (ON HCJ), 55 O.R. (2d) 633 (H.C.); Re Posluns v. Toronto Stock Exchange (1968), 1968 CanLII 6 (SCC), 67 D.L.R. (2d) 165 (S.C.C.); Nishimura v. Ontario (Human Rights Commission)(1989), 1989 CanLII 4317 (ON HCJ), 11 C.H.R.R. D/246 (Ont. Div.Ct.).

34In conclusion, the Commission took the position that it did endeavour to effect a settlement and was unable to because of the entrenched position of the respondents. It further took the position that those efforts to reach settlement did not require face-to-face negotiations between the parties and that the Commission was entitled to believe, on the basis of the investigator's report, that the settlement would have been impossible in the circumstances.

35In the alternative, if this Board should find that the Commission did not fulfill its statutory obligation to endeavour to effect a settlement, the Commission argued that the defect could be cured at any stage of the proceedings up to and including the date of the hearing. It is the Commission's position that had the respondents been prepared to settle the complaint, they were under an obligation to notify the Commission of their intention to settle and their failure to do so should be taken by this Board as proof that this complaint could not have been settled before a hearing was convened.

36Finally the Commission took the position that there has been no prejudice to the respondents. If, as was stated previously, the respondents were prepared or willing to settle the complaint, they are free to do so now and have been free to do so at any time since the complaint was filed. If it did settle at this stage, or if it proceeds to a hearing, there would be no prejudice to the respondents. They will have an opportunity at the hearing to fully explain and/or defend their position.

Decision

37This preliminary issue goes to the very jurisdiction of this Board to convene a hearing into the complaints of Ms. Findlay and Dr. McKay.

38It deals with the failure of the Commission to fulfill the statutory requirement in s. 33(1), namely the requirement that it endeavour to effect a settlement of the complaint. The Commission conceded in its reply that it did not make any attempt to discuss settlement directly with the respondent Four Star Variety. It argued that it was under no obligation to do so. It was entitled, in its submission, to conclude that settlement was not possible based on the refusal of the respondent to agree to remove the offending magazines from their store. It asks this Board to come to a similar conclusion.

39Having considered the evidence and the arguments of counsel, I do not agree with the conclusions of the Commission. It is not surprising that the respondent did not agree to remove the magazines from the store when asked to do so by the complainants. As far as they were concerned at the time, they had complied with all relevant provincial, federal and municipal legislation. Even after the investigator from the Commission filed her report, no one specifically accused them of violating any law in general or the Code in particular. The investigator's report acknowledged the magazine display complied with the municipal by-law regulating the sale of adult magazines and concluded her report with a query as to whether that display, nevertheless, violated the Code. The demand from the complainants that [the] respondents remove the magazines from the store may well have seemed unreasonable and unfounded to them in the circumstances.

40In our view, there was an onus on the Commission to explain to the respondent the substance of the complaint, the process of a complaint and the consequences of an impasse. It is unreasonable to expect that lay people would understand, much less appreciate, the process involved in a hearing before a board of inquiry. That is particular true in a case such as this when the allegation of discrimination is based on a ground not specifically set out in the Code or previously considered by a board of inquiry.

41Having determined that the Commission did not meet its statutory obligation to endeavour to effect a settlement, the next issue for this Board to determine is what effect, if any, that failure should have on this Board's jurisdiction to continue.

42The cases relied on by the respondent are of some assistance. The case most similar on its facts is that of Re Alberta Human Rights Commission v. Pro Western Plastics Ltd., supra. In that case the Alberta Court of Appeal was asked to consider an order to quash an order appointing an inquiry into a complaint filed under the Alberta Human Rights Code [Individual's Rights Protection Act, R.S.A. 1980, c. I-2]. It would appear from the facts of that case that, during settlement discussions, the respondent made specific requests of the Commission for information related to its investigation. It stated in its letter to the Commission that it would not be prepared to meet until the Commission had answered the questions raised in its letter. The Commission took that statement to mean that the respondent was unwilling to negotiate a settlement and asked the Minister to appoint a Royal Inquiry. The issue for the Court of Appeal to determine was whether the Commission had complied with its statutory obligation to attempt to settle the complaint and whether that obligation was a condition precedent to its authority to request the appointment of a board of inquiry. Dealing with the first issue, the Court noted that the relevant statutory provision read as follows:

17(1) The Commission shall as soon as is reasonably possible cause an investigation to be made into and shall endeavour to effect a settlement of any complaint of an alleged contravention of this Act where

a. a person who believes he has been discriminated against contrary to this Act makes a complaint in writing to the Commission, or

b. the Commission has reasonable grounds for believing that a complaint exists.

43The Court did indeed find that s. 17 of the Code was a condition precedent and that, based on the facts of the case before it, the Commission had failed to comply with its mandatory requirement to endeavour to effect a settlement. On that basis, the order quashing the appointment of the Board of Inquiry was allowed to stand.

44Another case that is helpful in the determination of this question is that of Re Ministry of Health v. Ontario Human Rights Commission (June 30, 1993) unreported [now reported 1993 CanLII 5604 (ON CTGDDC), 20 C.H.R.R. D/421] (Ont.Ct. (Gen.Div.)). At issue was an application for judicial review of a decision of the Ontario Human Rights Commission to request that the Minister of Citizenship appoint a board of inquiry to investigate claims of discrimination and harassment filed by Ms. Kanga. The Commission had originally decided not to request the appointment of a board of inquiry and advised the complainant and respondent of that decision. The complainant asked for a reconsideration of that decision and subsequently, after reviewing the facts, the Commission reversed its decision and requested the appointment of a board of inquiry. It was agreed between counsel for the employer and counsel for the Commission that the Commission had failed to comply with its obligations. The issue before the Court was what order it should make in the circumstances. Counsel for the Commission argued that the matter should be sent back to the Commission for further reconsideration, properly conducted. Counsel for the employer submitted that the breaches of the statutory requirements and procedural fairness had been so serious that the employer had reason to doubt that a fair decision could be reached by the Commission in a reconsideration. Counsel for the employer requested that the decision for reconsideration be quashed.

45In that case the breaches were of a more blatant type than are found in this case. For example, the Commission did not inform the employer or the respondent of the letter from complainant's counsel requesting a consideration. The Commission was required to notify the employer as soon as was practical and to afford the employer an opportunity to make the submissions with respect to the request for reconsideration. It did not. The Commission failed to give reasons for changing its decision to request the appointment of the Board of Inquiry even though the Code specifically required it to record its reasons in writing and to communicate them promptly to the parties. The Court found that the Commission's failure to give reasons gave an appearance of unfairness. The Commission also failed to comply with the time limits under the Code for reconsideration. There had never been any agreement to extend those time limits and it would appear, from the facts of the case, that the Commission simply ignored them. The Commission failed to provide a concise statement of material facts upon which the application for reconsideration was based and relied primarily on the investigator's report in reviewing the complaint. In considering the cumulative effect of the number and form of the breaches, the Court referred to a judgment of the Supreme Court of Canada in Service Employees International Union, Local No. 333 v. Nipawin District Staff Nurses Association, 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382 which stated at 388:

There can be no doubt that a statutory tribunal cannot, with impunity, ignore the requisites of its constituent statute and decide questions any way it sees fit. If it does so it acts beyond its powers, fails to discharge its public duty and departs from legal and permissible conduct. Judicial intervention is then not only permissible but requisite in the public interest.

The Court quashed the decision of the Commission to request the appointment of a board of inquiry.

46Ms. Sanson, for the Commission, argued that the procedural defects in the processing of this complaint could be cured by a hearing on the merits. She suggested that the respondents had suffered no prejudice as a result of the Commission's failure to attempt settlement because it was open to it to approach the Commission with an offer to settle at any stage in the proceedings. That, in my view, is not borne out by the wording of s. 33. The onus is on the Commission to endeavour to settle the complaint. There is no corresponding onus on the respondents to approach the Commission with a settlement offer, especially in a case such as this where the Commission has never indicated, by its words or deeds, that it is interested in settling the complaints. The complainants and the Commission determined that the only settlement position they would accept was one that included an agreement to remove the offending magazines from the store. It was up to them to explore with the respondents whether there were alternative methods of displaying or selling the magazines. They did not.

47There is no doubt that the Commission did not fulfill its obligation to endeavour to effect a settlement. Section 33 is framed in mandatory terms. The use of the word "shall" by the legislature indicates an intention on its part that the Commission fulfill its broad mandate under the Code by first attempting to resolve complaints by discussion, negotiation and, if possible, agreement. The purpose of the Code is to eliminate discrimination and discriminatory practices by promoting an understanding and acceptance of and compliance with the Code. That goal can be achieved in several ways, but it is up to the Commission to ensure that, in advancing those goals, the dignity and worth of every person be respected. That includes an obligation to ensure that the rights of the alleged respondents are respected until it is determined that they knowingly intend to persist in a prohibited activity.

48In failing to endeavour to settle the matter, the Commission chose to seek compliance with the Code in the adversarial forum of a hearing before a three-person board of inquiry. The respondents were compelled to obtain counsel at their own expense and will be required to attend at some of the hearing days to give evidence. Clearly the respondents have been prejudiced by the method in which the Commission elected to proceed. In order to make an informed decision about their continued involvement in the proceedings, they were entitled to be advised about the substance of the complaint as well as the forum and procedure that would be followed if they elected to argue their case before a board. They were never given that opportunity and, as a result, they have been prejudiced.

49I do not believe that the Commission's abrogation of its duty to endeavour to effect a settlement of the complaint at an early stage of the proceedings can be cured by a full hearing into the allegations. If, in fact, a settlement was possible in 1988, 1989, 1990 or 1991, that was the time to expend the effort. No time or expense had been spent. There had been no public exposure of the parties and/or their positions. In the interim, the continued exposure of women to the magazines at issue might have been resolved in such a way that, irrespective of their status under the Code, they would not have continued to offend the complainants.

50In interpreting a statute, the courts and administrative tribunals have developed rules or canons of interpretation to assist them. The cardinal rule is that statutes must be read in the context of the circumstances giving rise to them and the actual language used to express that purpose. The primary purpose in interpreting a statute is to ascertain, if possible, the intention of the writer by reference to the context or content of the statute.

51It is clear that the legislature, in drafting the Code, intended to promote the dignity of the people of Ontario by prohibiting discrimination on certain defined grounds and that it intended, or at least desired, to seek compliance with the Code through education and co-operation, where possible. The Commission was established to further those goals.

52The role of the Ontario Human Rights Commission is set out in Part III of the Code and encompasses a broad range of responsibilities and roles. Section 29, in particular, sets out the functions of the Commission as follows:*

29. (a) to forward the policy that the dignity and worth of every person be recognized and that equal rights and opportunities be provided without discrimination that is contrary to law;

(b) to promote an understanding and acceptance of and compliance with this Act;

(c) to recommend for consideration a special plan or program designed to meet the requirements of subsection 13(1), subject to the right of a person aggrieved by the implementation of the plan or program to request the Commission to reconsider its recommendation and section 36 applies with necessary modifications;

(d) to develop and conduct programs of public information and education and undertake, direct and encourage research designed to eliminate discriminatory practices that infringe rights under this Act;

(e) to examine and review any statute or regulation, and any program or policy made by or under a statute or policy, that in its opinion is inconsistent with the intent of the Act;

(f) to inquire into incidents of and conditions leading or tending to lead to tension and conflict based on identification by a prohibited ground of discrimination and take appropriate action to eliminate the source of tension or conflict;

(g) to initiate investigations into problems based upon identification by a prohibited ground of discrimination that may arise in a community, and encourage and co-ordinate plans, programs and activities to reduce or prevent such problems;

(h) to promote, assist and encourage public, municipal or private agencies, organizations, groups or persons to engage in programs to alleviate tensions and conflicts, based upon identification by a prohibited ground of discrimination.

(i) to enforce this Act and orders of boards of inquiry;

(j) to perform the functions assigned to it by his or any other Act. (my emphasis) [sic]

53As stated previously, it is obvious from s. 29 that the legislature of Ontario expected the Commission to promote the goals of the Code through education, encouragement and co-operation. To that end it is required to take a proactive role in assisting the people of Ontario to understand and comply with the provisions and prohibitions contained within the Code. When its powers of persuasions and encouragement are unsuccessful, the focus of the Commission shifts from education and co-operation to enforcement. It meets that responsibility by either pursuing the complaint of an individual or by initiating its own complaint. However, these enforcement functions do not displace its initial obligations to seek compliance through education and co-operation. The Commission, at this stage of a complaint, is mandated to investigate the complaint to determine whether or not a right under the Code has been infringed. If, after its investigation, it is satisfied that a valid complaint exists, it is compelled, by statute, to attempt to settle the dispute. The requirement that the Commission attempt to settle the dispute was not meant to be merely a procedural step in the process. It was a legislated directive to the Commission to fulfill its functions under the Code by seeking a resolution to the problem that would promote the goals of the Code.

54At this stage of the proceedings the Commission had not yet assumed its role as advocate for the complainants. It remained obliged, by statute, to seek compliance through its normal procedures of conciliation. Only after it had fulfilled its role as investigator/educator/conciliator was it entitled to adopt the role of advocate. In my view, the Commission, in its desire to adjudicate this complaint, went directly to the role of advocate without regard for its responsibilities to seek a less confrontational form of compliance.

55My interpretation of s. 33(1) is supported by s. 36(1) which reads:

36(1) Where the Commission fails to effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may request the Minister to appoint a board of inquiry and refer the subject matter of the complaint to the board. [Emphasis added.]

The Commission's authority to request the appointment of a board of inquiry is premised upon the assumption that it has attempted to settle the complaint. The use of the word "failed" presupposes that an effort was made that was ultimately unsuccessful. The appointment of a board of inquiry is the last step in the process and was intended to be used only when all other methods of resolution have failed.

56In this case, the Commission, in its reply, has conceded that it took no steps to attempt to resolve the complaint. It has argued that, on the basis of that investigator's review, it was entitled to conclude that a settlement was not possible. In my view, that conclusion is not supported by the evidence before this Board. The respondents were asked by the complainants on three separate occasions to remove the offending magazines from their store. Not surprisingly, they refused. As far as they were concerned, they had complied with all provincial, federal and municipal regulations concerning the sale of these magazines.

57The next time they were made aware of the complaint was when the officer conducted her review. Her summary of the facts and her conclusions were, at best, equivocal. The respondents knew that the investigating officer had come to no conclusion as to whether the sale of these magazines violated the provisions of the Code. Until the respondents received the letter dated May 10, 1991, they had never been personally advised that the Commission intended to pursue the complaints. No one ever explained to them the grounds upon which the Commission intended to argue that the sale of the magazines infringed a right under the Code. Neither did anyone explain to them that the Commission would be attempting to persuade a board of inquiry to expand the existing jurisprudence to include the concept of a "poisoned or hostile environment" in the provision of services. Because they were never approached by the Commission, no alternative solutions were advanced, no compromises positions [sic] were explored and the co-operation of the respondents was never sought in an attempt to accommodate the concerns of the complainants, the Commission and the respondents.

58The Commission has argued that the onus was on the respondents to contact the Commission if it wished to discuss settlement. I cannot agree. The Commission has been charged with the responsibility [to] seek compliance with the Code through education and co-operation. It is under an obligation to eliminate discriminatory practices in the manner described in s. 28, which, in my view, involves a sincere effort to explain the nature of the alleged discrimination, the provisions of the Code that are alleged to have been violated and to attempt to conciliate the matter by exploring possible compromises that address the concerns of the complainants and obligations of the respondents under the Code. That obligation, as s. 33(1) clearly states, is on the Commission.

59If I am correct in my conclusion as to the intention of the legislators in drafting the Code, the next question to determine is whether they did, in fact, achieve that purpose in the actual language of the statute.

60Section 33(1) states that the "Commission shall investigate a complaint and endeavour to effect a settlement." One of the canons of interpretation dictates that words should be given their plain or ordinary meaning unless the parties have indicated otherwise. In this case, the operative word is "shall." The Interpretation Act, R.S.O. 1990, c. I.11 states that the word "shall" is to be construed as imperative.

61Black's Law Dictionary, 5th ed. (West Publishing Company, 1979) defines "shall" as follows:

As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. It has a peremptory meaning, and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favour of this meaning or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears. People v. O'Rourke, 124 Cal.App. 752, 13 P.2d 989, 992.

But it may be construed as merely permissive or directory (as equivalent to "may"), to carry out the legislative intention and in cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense. Wisdom v. Board of Sup'rs of Polk County, 236 Iowa 669, 10 N.W. 2d 602, 607, 608.

According to that definition, the mandatory nature of the word "shall" has the effect of eliminating any exercise of discretion. The Commission, in my view, was bound by the language of s. 33(1) to attempt to settle the complaint before it was entitled to proceed to a board of inquiry. It did not, at that stage of the complaint, have the discretion to decide whether or not to pursue settlement discussions, nor did it have the discretion to determine, at that stage, whether settlement discussions would be fruitful.

62The definition in Black's Dictionary suggests that in certain circumstances "shall" can be given a directory or permissive meaning but, in my view, those circumstances do not apply in the case before this Board for two reasons. First, the intention of the Legislature was that the word "shall" be read as imperative for the reasons set out above. Secondly, a private right was impaired by the Commission's failure to follow its own procedures. The respondents had a right to be more fully apprised of the issues raised by the complaints and the position the Commission would be taking at a hearing. They had a right to make an informed choice as to whether they wanted to incur the costs in time and money to defend those allegations or whether they wanted to accept the allegations as valid and try to accommodate the concerns of the complainants. That is particularly true in the unusual circumstances of this complaint. On its face, the Code does not specifically include the "poisoned or hostile" environment in its list of prohibited grounds. The issues raised by this particular complaint have never been considered by a board of inquiry. The Commission, in advancing this complaint, is attempting to expand the existing scope of the Code to include the "poisoned or hostile environment" concept to the sale of offensive and degrading material in a neighbourhood convenience store. Given the nature [of] the complaint, there was even more reason to expect that the Commission would have discussed with the respondents the grounds upon which it had decided to proceed. That is especially so considering the respondents in this particular complaint who should not have been expected to understand the complex and unique nature of the complaint or the consequences of non-compliance. The Commission knew or anticipated that this complaint would generate considerable public interest given society's passionate reaction to issues of pornography and censorship. The fact that more than thirty individuals or groups have requested interested party status and/or an interest in addressing the Board bears that out.

63My interpretation is further reinforced by the application of another canon of interpretation, namely that in construing a statute, it should be presumed that all of the words were intended to have some meaning. If s. 33(1) were to be deleted from the Code, the progress of a complaint would not be affected. An attempt at settlement would be implied by the first words of s. 34 where it states that "failing settlement" the Commission may request the Minister to appoint a board of inquiry. The fact that the drafters of s. 33(1) specifically included an obligation to attempt to settle the complaint must be taken to mean they intended to place, on the Commission, a positive duty to engage in sincere efforts to address the concerns of both parties.

64A condition precedent is one that must be performed before a right dependent on it can be effective. The right of the Commission to request the appointment of a board of inquiry was dependent on its compliance with s. 33(1) of the Code. As the Court of Appeal said in the Alberta Human Rights Commission v. Pro Western Plastics Ltd., supra, stated [sic]:

The stage for the appointment of a Board of Inquiry had not been properly set, and for that reason the appointment became a nullity.

Therefore, the motion by the respondent Four Star Variety is granted. This Board of Inquiry does not have jurisdiction to continue with this proceeding against the respondent Four Star Variety. The respondent in its motion has requested that costs be ordered against the Commission on a solicitor and client basis. The Board will hear the submissions of the parties on the issues of costs when the hearing reconvenes on November 11, 1993.

65On that day the Board will also hear submissions as to what effect, if any, this decision should have on the remaining respondents.

REASONS BY R. HARTMAN

Motion No. 1 — Invalid Appointment of Board

66I have read the decisions of Co-Chairs Mikus and Zemans allowing this motion and effectively declining jurisdiction to proceed to hear the complaint put before the Board. I agree with their general discussion about conditions precedent and I agree that the Commission is obliged to endeavour to effect a settlement under s. 33. The statutory language of s. 33 is unambiguous and imperative. However, I cannot agree with their conclusion that the Commission's failure to satisfactorily discharge its obligations under s. 33 forms a mandatory condition precedent to a board's valid appointment under s. 38.

67I differ from the majority in my response to two questions raised by this motion: a) Who should determine whether the Commission has met its obligations under s. 33? and b) If it is the Board, what standard is appropriate for determining that the obligations have been met and what remedy follows, if they are not?

68With respect to the first question, a hearing before a board of inquiry is neither an appeal hearing nor a judicial review hearing. It is a hearing de novo to determine the merits of the complaints put before it. There are conditions precedent to a valid request for the appointment of a board, but in my view they are limited to the plain meaning of the words set out in s. 36 and do not incorporate the words of s. 33

69The Code clearly separates the functions of the Commission, the institution entrusted with the enforcement of the Code, from those of the ad hoc boards of inquiry. Boards exist only when the Commission exercises its discretion to request them. The Code has given boards very specific powers, including a specific remedy where it is felt that there has been undue hardship caused by the Commission's decision to request a board, or where it is felt the complaint is trivial or vexatious and not meriting the Commission's request for a board. That remedy is the authority to award costs against the Commission. It is open to a court on a judicial review application to consider the legality of a board's appointment in the context of the Commission's actions prior to a board's appointment but such actions are not properly the subject of a board's determination of its prima facie jurisdiction. I will discuss my interpretation of the Code in more detail later.

70In response [to] the second question, I respect the reasoning articulated by Co-Chairs Zemans and Mikus in their decisions but my assessment of the evidence presented, the case law, and a practical understanding of the language used in s. 33 leads me to conclude that: a) the Commission was not unreasonable in assuming settlement was unlikely and b) any unfairness to the respondents can be cured by the proceedings before this Board.

1. Who Should Determine the Commission's Compliance with Section 33?

A) THE STATUTORY FRAMEWORK OF THE CODE

71In Parts III and IV of the Code, the Legislature gives to the Commission certain duties and responsibilities. Under s. 29, it is the function of the Commission to "forward the policy that the dignity and worth of every person be recognized" and to "promote an understanding and acceptance of and compliance with this Act"; to develop "programs of public information and education"; "to examine . . . any statute . . . inconsistent with the intent of this Act"; and "to inquire into incidents of and conditions leading . . . to tension or conflict based upon identification by a prohibited ground of discrimination . . ."; and "to enforce this Act and orders of boards of inquiry."

72The Legislature gives the Commission the discretion to dismiss a complaint at the outset and the discretion to decide when and if a recommendation will be made to the Minister to appoint a board of inquiry. By s. 34, the Commission has authority to dismiss a complaint, without investigation, where it concludes: a) the complaint could be more appropriately dealt with under another Act; b) the subject-matter is "trivial, frivolous, vexatious or made in bad faith"; c)20the complaint is outside its jurisdiction; and d) the complaint is based on facts which occurred more than six months prior to filing "unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay." Where a complaint is not dismissed by s. 34, the Commission, by s. 33(1), must investigate it and "endeavour to effect a settlement." The Commission can still effectively dismiss the complaint later by deciding not to request the appointment of a board under s. 36.

73This power of the Commission to dispose of complaints brought before it is balanced by specific statutory provisions for review of its exercise of such power. This is consistent with general administrative law principles. For example, s.2036(2) states:

36(2) Where the Commission decides to not request the Minister to appoint a board of inquiry, it shall advise the complainant and the person complained against in writing of the decision and the reasons therefor and inform the complainant of the procedure under section 37 for having the decision reconsidered. [Emphasis added.]

74There is no specific provision for review of the Commission's discretion under s. 36(1) to recommend an appointment, simply because such an exercise of the Commission's discretion does not involve a finding of fact or law or constitute a final determination of issues under the Code. It is merely indicative of the Commission's view that further inquiry is needed before rights can be determined. This distinction is referred to in F.W.T.A.O. v. Ontario Human Rights Commission, supra. The Court stated, at p. D/5884 [para. 42756]:

The law is clear that a party must know the substance of the case against it and be allowed to respond. The Commission was not disposing of the complaint by requesting the Minister appoint a board of inquiry. The standard of justice is different if the Commission decided to dismiss the complaints since the complainants would have had no further rights to pursue this matter. A full hearing is offered to all who allegedly infringed any rights at the Board of Inquiry. [Emphasis added.]

75When a complaint is referred to a board of inquiry, the merits of the complaint are considered afresh in a quasi-judicial setting, with an opportunity given to all parties for a full and complete airing of the opposing positions, with evidence tested by cross-examination before a board which has had no prior involvement in the history of the complaint, its investigation or in any negotiations by the parties. This is a qualitatively different forum for consideration of alleged breaches of the Code than the combined investigatory/conciliatory/regulatory setting of the Commission's mandate.

76The Commission's authority to request a board is given under s. 36(1) of the Code as follows:

36(1) Where the Commission fails to effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may request the Minister to appoint a board of inquiry and refer the subject-matter of the complaint to the board.

77There are therefore three prerequisites to the Commission's authority to request the appointment of a board. The Commission must have:

a) failed to effect a settlement;

b) concluded the board of inquiry procedure is appropriate for the subject-matter of the complaint; and

c) concluded that the evidence gathered by it warranted such an inquiry.

78The Code gives no discretion to the Minister to refuse the Commission's request and a board is appointed from a panel of persons established by the Minister under s. 35.

79A board of inquiry's powers are expressly set out in s.2039 as follows:

39(1) The board of inquiry shall hold a hearing,

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

b) to determine who infringed the right; and

c) to decide upon an appropriate order . . .

Like the wording of s. 33, the language of s. 39 is unambiguous and imperative. The focus of the board is singularly on the merits of the complaint put before it. Nowhere does the Legislature state or imply that the board is to ensure the Commission has fulfilled all its obligations prior to the request for a board.

80Once a board is appointed, the Commission's role changes from an investigating body entrusted with furthering public policy to one similar to that of a litigant. The Commission is now subject to the board's procedures and directions. The Commission is no longer in a position to unilaterally determine the complaint against the respondent and has only the power to enter into settlement discussions, as do all parties. Any settlement reached will be subject to the approval of the statutory entity now charged with determining the merits of the complaint — the Board.

B) CONCLUSIONS

81The board exists because the Commission requested its creation for the purpose of determining rights under the Code. Its appointment can be quashed by judicial order. There may be circumstances where the board must itself decline jurisdiction where the provisions of s. 36 have not been met. Co-Chairs Mikus and Zemans have determined that this is such a case, relying not on s. 36 alone but on the provisions of s. 33 forming a condition precedent to be implied into s. 36.

82As an administrative tribunal, the board has only the powers given to it by the statute. The purpose of the board is stated in precise and narrow terms in s. 39. Only its power to award an appropriate remedy is stated in the broad terms elsewhere reserved for the Commission. Section 41 states, in part:

41(1) Where the board of inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceedings, the board may, by order,

a) direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practicers; and

b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

41(4) 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.]

83It is important to note how the language of s. 41(4) echoes that of s. 34. In other words, the Legislature foresaw a situation where a board might consider the request for its creation to have been inappropriate (in the case of a trivial complaint, for example) or that bringing a complaint to this stage might create "undue hardship" for a respondent. And it provided an express remedy — costs. No mention is made of dismissal for institutional failures on the part of the Commission. In my view, this is consistent with the fact that two remedies for such failures already exist: 1) in the case of administrative complaints — investigation by the provincial Ombudsman under the Ombudsman Act; and 2) in the case of legal complaints — access to judicial review by the courts. In other words, the Commission will be held to account for its actions outside of the board of inquiry setting, not by the ad hoc boards but by the courts and by administrative watchdogs such as the Ombudsman.

84In my interpretation of the Code, concerns regarding the Commission's conduct or handling of a complaint prior to the appointment of a board are not a matter going to that board's prima facie jurisdiction, as determinable by that board. At most, such concerns can be a consideration with respect to remedies ordered by that board under s. 41.

85The practical effect of the interpretation of the Code requested by Mr. Israel would be that future boards would become, at least initially, inquiries into bureaucratic complaints, not human rights complaints, as it would no doubt be prudent procedure for future respondents to try this approach as a preliminary to each and every hearing. In my view, such a focus at the outset of an inquiry was never contemplated by the Legislature in drafting the Code. It could not have been the Legislature's intention that human rights complaints would be dismissed by the ad hoc boards without a hearing on their merits, based on the Commission's handling or processing of such complaints. It is difficult to see how this would promote the stated objective of a "climate of understanding" in the area of human rights in Ontario.

86In summary, it is my view that the true conditions precedent with respect to the validity of its appointment which can be determined by this Board are those set out in s. 36. Remedies for the Commission's actions under s. 33 lie elsewhere. Since it is not disputed that the Commission failed to effect a settlement, and found that the Board procedure was appropriate, and that the evidence warranted such an inquiry, I conclude that the Board has jurisdiction to proceed.

2. Review of the Commission's Settlement Efforts in this Case

87Even if I were to accept the view that the Commission's settlement efforts were a mandatory condition precedent to the Board's jurisdiction to proceed, I would not decline jurisdiction, as I cannot conclude on the evidence presented that the condition was not met.

A) EVIDENCE FROM THE COMMISSION'S FILE

88The Board had before it the two complaints, the respondents' questionnaire, and a letter dated May 10, 1991, enclosing a case summary. These documents are reviewed below in some detail as the conclusions I draw from them differ somewhat from those of Co-Chairs Mikus and Zemans.

89The particulars of the complaints as set out in those filed by Ms. McKay and Ms. Findlay on April 13 and 15, 1988, are as follows:

1. [We] have had occasion to purchase items in the above-mentioned neighbourhood convenience store. While in this store, I noticed that it display[s] and sells many different titles of pornographic magazines.

2. It is [our] view that because of their stereotypical and demeaning portrayal of women, the display and sale of these magazines creates a negative environment for [us] as [well as] for other women.

3. On January 10, 1988, [we] approached the proprietor of the store to request that she stop displaying and selling [the] pornographic material. She became very hostile and started shouting at us, advising us that the magazines were there for men to buy and were none of our business.

4. Again, on January 15 [sic], 1988, we returned to the store and repeated our request. She again became hostile and shouted at us. She refused to listen to our request.

5. On February 1, 1988 [we] wrote to the proprietors to repeat our request.

90The respondents' questionnaire, a standard form sent out by the Commission, was completed on July 28, 1988, by the son of the respondents, Peter Kwon, who indicated that he was the person with whom the Commission must deal regarding the complaint. He appeared to have an understanding of the gist, and the context, of the complaints and clearly articulated the respondents' position as follows:

Writing on behalf of Mrs. Sook Ja Kwon, I found that in the complaint in paragraphs 3 and 4 are quite one-sided. They do not mention that they went behind the cash-counter without permission and aggressively seeking [sic] the store's vendor permit. In fact they were quite rude and tried to intimidate Mrs. Kwon by threatening to call the Police. As a store vendor, Mrs. Kwon is doing nothing illegal by selling sex magazines because many other stores within the area also sell explicit materials; therefore Mrs. Kwon cannot be made a scapegoat for selling these materials . . . I believe that these two ladies are on some crusade to decide what society should or should not read and that I find very disturbing in a society in which democracy is the cornerstone of all our life activities. Freedom of choice is at issue here and because Mrs. Kwon uses this right by selling sexual literature therefore she should not be penalized because the ladies feel censorship is their right. [Emphasis in original.]

91According to an affidavit of F. Gaspar, Case Manager, filed by the Commission to establish its procedure regarding uniform disclosure of information obtained, it was standard procedure to forward a case summary containing investigation results to both the complainants and respondents.

92On May 10, 1991, the Commission sent an undated case summary to the respondents under cover of a standardized letter which stated in its entirety:

As you know, we have been unable to resolve these complaints through our normal procedures of investigation and conciliation.

For this reason, the complaints will be referred to the Commission for a decision as to whether or not to request the Minister of Citizenship to appoint a Board of Inquiry pursuant to Section 35 of the Human Rights Code, 1981.

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. If you plan to reply, please send your submission to me by May 31, 1991.

The Chief Commissioner will advise you in writing of the Commission's decision. [Emphasis added.]

93The case summary prepared by L. Ackroyd, investigator, sets out a number of headings: "Code Provision; Complainant's Allegations; Respondent's Position; Issues; Investigation Findings." Under the headings "Issues" and "Investigation Findings," the investigator addresses four questions. To question (1) What is the nature of the stores in question? she replied that they are neighbourhood convenience stores.

94In response to question (2) What are the magazines in question and how are they displayed? the investigator reviewed the requirements and enforcement of Municipal By-Law 51-86 regulating "the display of adult books and videotapes in the Metropolitan Area." She noted that the police and prosecutors were not aware of any prosecutions as they described the by-law as "largely ”˜self-policing.' " The investigator opined:

In the respondent stores, the display racks were at the prescribed height and opaque barriers were installed. Thus the displays were largely in compliance with the by-law; however, in some cases, more than just the title of a magazine, i.e. sub-headings and parts of illustrations, was visible.

In one case, comic books were displayed alongside "adult magazines" at the same level and in the same display case, the only difference being that one could see the entire cover of the comic books, e.g. "Betty and Veronica", and only part of the cover of the "adult" magazines.

95In response to question (3) How are women portrayed in the magazines? the investigator discussed in some detail the magazines displayed, giving her opinion that they ranged from the "relatively innocuous Outrageous Letters" to the "far ”˜bad taste' end of the spectrum . . . Hustler." The investigator concluded that the "portrayal of women [was] arguably stereotypical and demeaning," referring to dictionary definitions of these terms as "[stereotype:] unduly fixed mental impression" and "[demean:] to lower the dignity of."

96In response to question (4) Is there a poisoned service environment for women? the investigator gives no opinion, stating as follows:

Although many women have come to ignore the magazines in question, those women who acknowledge or examine them will probably feel insulted by at least some of them.

The magazines are on display in neighbourhood convenience stores where people, including the complainants, would ordinarily buy milk, etc.

Although some men may be offended by some of the material on the grounds of taste, the great majority of purchasers are apparently male and the magazines are basically aimed at and intended for men.

Does this constitute a contravention of the Human Rights Code?

97The absence of a conclusion as to whether or not the respondents contravened the Code is consistent with the Commission's later decision to refer the matter to a board of inquiry for determination.

B) AFFIDAVITS FILED IN SUPPORT OF THIS MOTION BY MR. ISRAEL

98Three brief and conflicting affidavits were filed in support of this preliminary motion. On May 17, 1993, Mrs. S. Kwon deposed: "During [the complainants'] visits and in a letter we received from the two women, they asked my husband and I to remove the magazines from the display rack [and we] declined to remove the magazines from our store." She added that "other than the two requests that the [complainants] made at the beginning of the process, we have not been asked at any time to be involved in the resolution of these complaints." She stated that they first became aware of the complaints "when we received the Human Rights complaints" (which would appear to have been in 1988 given the respondents' questionnaire).

99On May 17, 1993, Mr. J. Kwon stated simply that as co-owner with Mrs. Kwon, he was "very surprised" by the letter of May 10, 1991, which "stated that the Commission had appointed a Board of Inquiry since the complaints could not be resolved through the normal investigation or conciliation process." (In fact, the letter does not state a board has been appointed.)

100On June 11, 1993, Peter Kwon deposed that he was present when a person (unidentified other than being from the Commission) visited his parents' store on an unspecified date:

During that visit, no attempts were made by the officer to settle the Complaints. In fact, the officer did not discuss even the possibility of resolving the Complaints at all. Further, the officer advised me not to worry about the Complaints.

Despite the allegations in the Complaints, I am and my parent[s] have advised me that they are only aware of Ms. Findlay and Ms. McKay coming to the Store on only one occasion at which time they requested the removal of the magazines. Further, at no time did the Store receive a letter from Ms. Findlay and Ms. McKay explaining their concerns and requesting that the magazines be removed from the store.

C) CASE LAW REGARDING SETTLEMENT EFFORTS

101Mr. Israel relies on a decision of the Alberta Court of Appeal in Alberta Human Rights Commission v. Pro Western Plastics Ltd., supra. In that case, the Commission advised the respondent that its responsibility was to "endeavour to effect a settlement," or if "unable" to effect "an appropriate settlement," to recommend that a board of inquiry hold a hearing into the matter. The respondent replied that the Commission had not answered its earlier questions; alleged the Commission was informing them that they were "guilty"; and submitted that they were "more than willing to discuss the matter further" but "only after we receive a reply in writing to the matters raised in our previous letters." In reply, the Commission advised that the respondent had "apparently declined to meet" with it "to discuss settlement of these complaints" and recommended a board be appointed. The respondent wrote back saying that it was not refusing to meet once the information requested was made available.

102Mr. Justice Haddad, writing for the majority, described a paragraph of this letter from the Commission as "[smacking] of intimidation as the writer stated that she was forwarding the complaints to the commission together with a recommendation that the commission direct a board of inquiry to be appointed to hear them." He commented that the person writing on behalf of the Commission was "aggressive and authoritarian" and concluded that the Commission acted unfairly in failing to reply to "reasonable" inquiries by the respondent. In such circumstances, he said, he could not conclude that the Commission was "unable to effect a settlement," a condition precedent to its authority to recommend an inquiry. He interpreted the word "unable" as follows [D/1583, paras. 13620–21]:

"Inability" only occurs when a person against whom a complaint is made is unwilling to negotiate in good faith, or at all, or after two parties negotiating in good faith are unable to reach terms mutually acceptable.

. . . The stage for the appointment of a board of inquiry had not been properly set, and for that reason the appointment became a nullity. Indeed, in its letter of 15th December 1980 to the Minister of Labour to request the appointment of a board of inquiry the commission did not say that it was unable to effect a settlement. Instead it classed the respondent's failure to accept its demands as "unsuccessful". It does not appear to have asked itself the correct question at the very initiation of the inquiry.

103A third judge, Mr. Justice Moir, dissented from the above reasons, interpreting the same evidence quite differently [D/1585, paras. 13637–38]:

In my respectful opinion the commission attempted to settle. The respondent replied that they would not meet until they were told more. That may very well be taken to be a refusal to negotiate or to settle. The court cannot usurp the functions of the commission and of the minister by saying that they should do more. The commission found the complaints to be justified. They had evidence. They proposed a settlement. The objections taken were, in my opinion, without merit and irrelevant to the matters complained of by Ms. Snyder. Even if they were not, the respondent would not settle. He would not even meet to discuss the proposed settlement of 16th April 1980. That made settlement impossible and the actions of the minister, as authorized by the legislature, followed. That is an end of the matter.

I would allow the appeal with costs both here and in chambers. The commission has the right to go on and the board is properly constituted.

104I do not find the majority's reasoning with respect to Alberta legislation to be particularly helpful as a precedent for the proposition that the sufficiency of the Ontario Commission's efforts to settle constitutes a condition precedent to the appointment of a board in Ontario. The Alberta Court of Appeal was interpreting specific legislation of a separate jurisdiction, whose equivalent to s. 36(1) used the words: "if the Commission is unable to effect a settlement of the matter complained of" as the condition precedent or prerequisite to appointment of a board. The majority held that the Alberta Commission, in classifying settlement efforts as "”˜unsuccessful," asked itself the wrong question. The right question, presumably, was whether the Commission was "unable." On that analogy, under the Ontario legislation, the right question would be: Did the Commission "fail" to effect a settlement? The Court's discussion of the definition of "inability" is unhelpful in answering that question.

105The respondent also relied on an Ontario decision, Ministry of Health v. Ontario Human Rights Commission, supra. The Court considered the Code's provisions and quashed a decision by the Commission to request the appointment of a board of inquiry, a decision which reversed an earlier decision not to request an inquiry. In that case, a 1986 complaint was referred to the Commission in June 1989 for a decision whether or not to request the appointment of a board. The complainant and the person complained against were not informed until April 1990, that the Commission had decided not to request a board. The complainant asked to have this decision reconsidered but did not present all her arguments in the time limit set out in the Code. The Commission failed to advise the respondent of this reconsideration request until eighteen months later, and having changed its mind and decided to request a board, failed to give reasons for this reversal or for its decision to extend the complainant's time limit for requesting such reconsideration.

106The Court in the above case cited the "general rule that applications for judicial review should not be brought until the tribunal has completed its hearings and rendered its decision" but added the Court may intervene at an earlier stage "where justice requires that it do so." The Court commented that the Commission's submission that the deficiencies in its process could be cured by a board of inquiry gave it some concern because [at D/425, para. 19]:

[T]he issue at the moment is whether the Commission should request a board of inquiry and whether the employer has good reason to fear that the Commission can fairly deal with that question. To suggest that the board of inquiry can cure any defects amounts to pre-judgment of the issue before the Commission. [Emphasis added.]

107The Court considered the cumulative effect of the several explicit statutory breaches by the Commission in that case, along with delay, and concluded that the Commission's decision to request the appointment of a board should be quashed because the respondent had "good reason to fear" there had been unfairness on the part of the Commission in reaching that decision.

108In my view, the significant and numerous breaches by the Commission of its statutory obligations in the Kanga case, supra, which caused the Court to conclude its general rule on judicial review was not applicable, are not present in this case.

D) CONCLUSIONS REGARDING SETTLEMENT EFFORTS IN THIS CASE

109In Consumers Distributing Co. Ltd. v. Ontario Human Rights Commission, supra, a settlement was reached between a complainant and the respondent which was not ultimately ratified by the Commission. The complainant had alleged in that case that the settlement was entered into under duress. The Court stated that the Commission's role when considering "approval" was not simply to determine whether or not duress occurred, adding [at D/3904, para. 30946]:

To so limit itself in the scope of its investigation and decisions would be to permit others to usurp the statutory discretion of the Commission . . . [which] engages the intrinsic policy of the statute.

110The Commission, in failing to disclose to the respondent, for rebuttal, certain facts and arguments advanced by the complainant, was found to have breached the principles of procedural fairness, but the Court declined to intervene, saying "no purpose would be served" by impeding the Commission's consideration of whether or not to request a board of inquiry. The Court referred to the broad powers given to the Commission by the Code, particularly s. 28 (now s. 29), and stated [at D/3903, para. 30941]:

It is our opinion that the Commission is under no obligation to approve of a settlement, such as that in issue in this application. Section 28 [now section 29] of the Code imposes on the Commission a broad, complex and subtle statutory mandate. That mandate as augmented by ss. 32(1) [now s. 33(1)] and 35(1) [now 36(1)] includes the necessity, if possible, to seek "to effect" a settlement of a complaint . . .

Its decision whether to ratify the agreement, or rather as s.2042 [now s. 43] states, to "approve" of the agreement, requires the Commission to take into account the promotion of the policy ends of the Code stated to be pursued as a "function" of the Commission under s. 28 [now s. 29]. [Emphasis added.]

111The Court commented further that the Commission [at D/3904, para. 30951]:

must be ever vigilant lest by its acts and decisions it is not, or is not seen to be, guilty of reverse discrimination, or used by persons or groups whose real interests are to achieve ends not within the statutory framework.

In my view, the overall policy considerations referred to by the Court in the above case must be kept in mind when interpreting the Commission's efforts regarding settlement in this case. Settlement discussions require some desire to resolve the matter on all sides — the respondent, the complainant and the Commission. Each will have quite different reasons for deciding to settle. A strategic element in any such negotiations will dictate some reluctance to begin, lest the other participants presume an advantage.

112In the overall scheme set up by the Act, I do not think the words "failed to effect" a settlement can mean much more than some effort being made to explore settlement possibilities, or to leave this open as an option. It cannot mean settlement at any cost. The Commission in pursuing settlement has a role which goes beyond the details of a particular complaint and must consider the long-term impact of a particular settlement on the "intrinsic policy of the statute" as referred to in Consumers Distributing, supra. Any settlement approved by the Commission must ensure the overall statutory aims are furthered and/or met.

113There are some cases and some issues which are not easily amenable to settlement. There is also a fine line between "striving" to effect a settlement and "pressuring" to effect a settlement. I recognize that, in negotiations between and among complainants and respondents and the Commission, as a government institution, individuals can feel "pressured" into agreements which arguably satisfy neither the individuals nor the aims of the Code but do satisfy the need to close a file. This practical reality must also be kept in mind when assessing the Commission's efforts under s. 36. In other words, the Commission can as easily be criticized for striving too strenuously to settle a complaint, as too little.

114As stated, the Board heard no oral evidence for or against the preliminary motions. Reviewing the documents on their face, it would appear: a) that the complainants cited an incident on January 10, 1988, and alleged that their rights to equal treatment had been infringed as a "negative environment" for women had been created in a neighbourhood convenience store where they shopped; and b) that the respondents took the position that the complainants were "on some crusade" and that the issue was the respondents' "freedom of choice" versus the "censorship" proposed by the complainants.

115There was no case law or precedent of any kind to guide the parties or confirm the Commission's application of the Code. The respondents took the position that the complaint was beyond the Commission's powers. Whether the complainants were insisting on an inquiry is not known. The complaint involved broader public issues beyond the concerns of the individual complainants and respondents. The Commission had a role to play. What was it? What would have been an appropriate settlement? Removing the magazines was not an apparent option. Peter Kwon's affidavit suggested that there had been some discussion about how the Commission viewed the complaint. Nothing was proffered by the Commission regarding the alleged statement by a Commission officer to Mr. Kwon to "not worry" about the complaints. I find the evidence as to what precisely was done or not done unclear. I do not give as much significance to the Commission's statement in its factum that "it did not engage the Respondents in conciliation discussions" as my Co-Chairs. A concession it may be, but evidence it is not. This statement was interpreted at the hearing as meaning that the Commission did not engage in "face-to-face" settlement discussions. I do not think much more can be inferred from this.

116From my review of the documentation presented, I cannot say that it was unreasonable for the Commission to conclude that settlement was unlikely, given all the circumstances. The Commission advised, and the respondent did not refute, that an offer by the Commission at the commencement of these proceedings to enter into settlement discussions was never pursued by the respondent Four Star Variety.

117I agree with Co-Chair Zemans when he states that the statutory framework anticipates a limited number of complaints proceeding to the board of inquiry stage and that the primary approach was intended to be informal dispute resolution, with the possibility of a board request forming an incentive to settlement. However I would add that the Code anticipates board hearings, not only as an enforcement mechanism but as a guidance mechanism for the Commission. Case law evolves from board hearings and the public airing and understanding of human rights issues they provide. By s. 32(2), the Commission is authorized to "initiate a complaint by itself or at the request of any person," in keeping with its functions under s. 29. Such complaints could involve the referral to a board for an objective determination of the issue. Even specific individual complaints involve, directly or indirectly, potentially broader societal interests than those of the particular complainant or respondent parties.

118This case is no different than any other in terms of the procedures that are set out in the Code. What is different for the parties in this inquiry is the intensity of the public's interest in the inquiry. The subject-matter of the complaints appears to have touched a sensitive societal nerve, as evidenced by the numbers attending the public hearings, the polarity and number of the requests for interested party status, and the media attention brought to the hearings. In such circumstances, given the test case nature of this complaint, and in the interests of fostering "a climate of understanding," I do feel that the Commission should have been more considerate of the respondents' burden in such an inquiry. That being said, does this invalidate the appointment of this Board? On considerable reflection, I do not think so. Feebleness in terms of settlement exploration may well be relevant to conclusions reached by a board, after a full hearing, as to costs and to remedies ordered if a particular complaint is upheld.

119What the respondents are really arguing in this motion is unfairness — that the Commission should have done more. In my view, any unfairness to the respondent with respect to settlement exploration can be met by the procedure before this Board. In F.W.T.A.O. v. Ontario Human Rights Commission, supra, the Court refused an application to quash the appointment of a board of inquiry on the basis that the Commission had acted unfairly in the course of its investigation into a complaint. The Court noted that cases presented in support of the application were all "decisions to dismiss complaints as unsubstantiated" by the Canadian Human Rights Commission, whose legislative framework was "markedly different" from that for the Ontario Commission [D/5881, para. 42739]:

In the instant case, however, it cannot be said that any rights have been determined. No decision on the merits of the complaint has been made. All the Commission has done is refer the matter to a board of inquiry to conduct a hearing with full rights of participation by the parties.

120The Court defined the issue as "what is the extent of the duty of fairness the Commission owes to the applicant in processing both complaints pursuant to s. 32 (now s. 33) and s. 35 (now s. 36)." It determined that the duty was [D/5882, para. 42747]:

to inform an interested party of the substance of the case against it and allow an opportunity for responding representations or submissions. There is no requirement to disclose the whole file, but a duty to provide a fair summary of the relevant evidence.

121By analogy, the issue in this case might be: What is the extent of the duty of fairness owed by the Commission to the respondent in the processing of the complaint under s.2036? The respondents in this case had disclosure — the case summary enclosed in the Commission's letter of May 10, 1991, and further to an earlier preliminary order in these proceedings, additional disclosure. If any unfairness existed as a result of the feebleness of the Commission's settlement efforts, how can this be cured?

122The Supreme Court of Canada in Harelkin v. University of Regina, supra, determined a right of appeal to the senate committee was an adequate alternative remedy for a student who was denied natural justice by the initial decision maker as the appeal included the right to a hearing de novo. A hearing before this Board is a hearing de novo. In other words, the respondents have ample opportunity to put forward their positions prior to any determination of rights being made and are free to engage in intense settlement discussions at any time or to argue for costs.

123It must be remembered that the failures of the Commission are not those of the complainants, whose complaint has been put before the Board for consideration. To decline jurisdiction is to effectively penalize a third party for the deficiency of the Commission's procedures. They, along with the respondent, have been waiting since 1988 for a determination. The Commission investigated and did not consider their complaint to be so obviously outside the provisions in the Code as to warrant a dismissal under s. 34, or to rule out a referral to a board, under s. 36. This Board was appointed as a result of that referral and, for the above reasons, has jurisdiction to proceed with a hearing into the merits of the complaint.

124As I would not have granted Mr. Israel's first motion, I must consider the two remaining motions.

Motion No. 2 — No Valid Complaint Disclosed

125Mr. Israel's second motion on behalf of Four Star Variety asked that the complaints be dismissed on their merits as a preliminary matter. In other words, even if the Board were validly appointed, the hearing should not proceed because the substance of the complaints was not a matter addressed by the Code and therefore outside the Board's jurisdiction.

1. Respondent's Submissions

126Mr. Israel argued that all of the facts necessary to determine this case on its merits were set out in the documentary material filed in support of the first preliminary motion. He stated that these documents constitute the Commission's and the complainants' case "at its highest," and accepting all those facts as true, there can be no violation of the Code as it has not been shown, or even alleged, that the complainants, as women, were denied services by the respondents, on the basis of sex or any other prohibited ground. He argued that since the women could buy the merchandise and could enter the store, just as men could, there was no violation of s. 1.

127Concerns about merchandise in that store are irrelevant, he argued, because the Code, in prescribing the right to equal treatment in the provision of services does not purport to regulate the sale of, or content of, goods or services. He submitted that "the right to equal treatment" in s. 1 refers only to the right to "obtain" services, without discrimination because of sex. He also argued that the concept of a "negative, hostile or poisonous environment" cannot reasonably be imported into s. 1 as the complainants are under no economic or other compulsion to enter the particular store selling the objectionable merchandise.

2. Commission's Submissions

128The Commission submits that all the facts necessary to find an infringement under the Code are not known and must await the tendering of evidence, both for and against, in the course of a hearing on the merits. Since this is a preliminary motion only, evidence on the merits was not submitted by either the Commission or the respondent. The Commission submits that the Board should not and cannot make a determination prior to the hearing of evidence as to whether or not the words of s. 1 apply to this complaint.

3. Case Law

129In support of the respondent's motion to dismiss the complaint on its merits as a preliminary matter, the Canadian Civil Liberties Association ("CCLA") put forward a recent decision of the Yukon Territory Court of Appeal, Gould v. Yukon Order of Pioneers, Dawson Lodge No. 1 (1993), 1993 CanLII 3415 (YK CA), 100 D.L.R. (4th) 596 [18 C.H.R.R. D/347] (Y.T.C.A.). At issue in that case was the interpretation of s. 8(a) of the Yukon Territory's Human Rights Act [S.Y. 1987, c. 3] which stated:

8. No person shall discriminate

(a) when offering or providing services, goods, or facilities to the public.

A woman had been refused membership in the all-male Order. A board of inquiry held that she had been discriminated against, contrary to s. 8(a) on the basis of sex, and that the Order's "collection and preservation of history constituted a public service." The Yukon Territory Court of Appeal concluded that since discrimination was defined in the Act as treating any individual or group "unfavourably" on listed grounds, which included "sex," discrimination was established by the evidence. It went on, however, to construe the complaint under s. 8 as a complaint that history was being collected solely by males and determined that the Order's collection of history was a private function and not a service offered to the public [D/352, paras. 32–33]:

It is not the collection and preservation of that history that is the service offered to the public but rather the fruits of its labours in investigating, collecting and recording such history that is provided to the public at the request of any member of the public.

The effect of the interpretation by the board of the meaning to be given to s. 8(a) of the Act is to permit the board to consider the content of the material provided by the lodge as a service to the public.

130The Yukon Territory Court of Appeal concluded that such an interpretation would have "far-reaching implications" and would limit the right to freedom of expression which was set out in s. 4 of the Yukon Territory's Human Rights Act. It should be noted that the legislation being interpreted in the Gould case, supra, has a statutory framework quite unlike that of the Code.

131The Commission relied on a 1985 decision of the Saskatchewan Court of Appeal, Huck v. Canadian Odeon Theatres Ltd. (1985), 1985 CanLII 183 (SK CA), 6 C.H.R.R. D/2682. In that case, the Court was considering a board of inquiry decision [1981 CanLII 4349 (SK HRT), 2 C.H.R.R. D/521] which held that Mr. Huck who relied on a motorized wheelchair for mobility, was discriminated against by a movie theatre which admitted him into the theatre but restricted his seating choices to the area in front of the first row of seats. The Board of Inquiry found that the service offered to the public was a movie and a place from which to view that movie. By restricting Mr. Huck's choice of place, the service offered to Mr. Huck was inferior to that offered others. The Saskatchewan Court of Appeal unanimously upheld the Board's decision, based on their interpretation of the Saskatchewan Human Rights Code. Mr. Justice Vancise commented [D/2689, paras. 22196 and 22199]:

The treatment of a person differently from others may or may not amount to discrimination just as treating people equally is not determinative of the issue. If the effect of the treatment has adverse consequences which are incompatible with the objects of the legislation by restricting or excluding a right of full and equal recognition and exercise of those rights it will be discriminatory.

Halvorsen J. [in the Court of Queen's Bench decision under appeal] found that the Legislature did not intend that the particular needs of the physically disabled must be catered to by persons who provide services to the public. He found that all section 12(1)(b) requires is that the physically disabled be offered the same facilities as are offered to the public, no more and no less. In so doing, he concluded that if the Legislature had intended anything more they would have said so. With the greatest respect, I do not agree that that is the proper interpretation to be given to s.s. 12(1). The Code must be given a liberal interpretation to insure that its objects as set out in Section 3 are achieved. The promotion of inherent dignity and equal inalienable rights could not possibly be achieved if the Code was interpreted in the manner suggested by Halvorson J. [Emphasis added.]

Again, this case involved specific interpretation of legislation of another jurisdiction.

132In a 1979 majority decision of the Supreme Court of Canada, Gay Alliance v. Vancouver Sun, 1979 CanLII 225 (SCC), [1979] 2 S.C.R. 435, the refusal by a newspaper to publish an advertisement for a particular periodical was held not to be a service offered to all persons seeking it, and therefore not subject to the British Columbia Human Rights Code. The reasoning of the majority was that since newspapers are free to propagate views, they also are free to refuse to publish materials which run contrary to those views. However, the reasoning of the dissent, concurred in [by] Mr. Justice Laskin and Mr. Justice Estey, took quite a different view as Mr. Justice Dickson commented:

I would only add in concluding that I do not think a newspaper, or any other institution or business providing a service to the public, can insulate itself from human rights legislation by relying upon "honest" bias, or upon a statement of policy which reserves to the proprietor the right to decide whom he shall serve.

133This broader approach to the application of human rights legislation is echoed in a decision of the Supreme Court of Canada in 1993. In University of British Columbia v. Berg (May 19, 1993) (unreported) [now reported 1993 CanLII 89 (SCC), 18 C.H.R.R. D/310], the majority of the Court noted that a broad, liberal and purposive approach to human rights legislation must be taken. The Court in that case was determining whether the University of British Columbia School of Family and Nutritional Sciences had discriminated against Ms. Berg by denying her a key to the building and a rating sheet required for hospital internship. The issue was whether the services in question were "customarily available to the public." The Court determined that this phrase did not mean availability to "every member of a community," saying every "service" has its own public. The Court added the following caution when using the purposive approach to human rights legislation [p. D/321, para. 27]:

This interpretative approach does not give a board or court licence to ignore the words of the Act in order to prevent discrimination wherever it is found. While this may be a laudable goal, the legislature [in British Columbia] has stated, through the limiting words in s. 3 [of the B.C. Human Rights Act], that some relationships will not be subject to scrutiny under human rights legislation. It is the duty of the boards and courts to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature.

4. Conclusion

134In my view, it is a perilous undertaking to determine rights under the Code on a preliminary motion supported by the kind of documentation provided in this case. Under s. 39, the Board is required to hold a hearing to determine whether a right of a complainant has been infringed. To come to such a conclusion without a full hearing would require an extremely obvious case of a complaint being in or outside the ambit of the Code.

135Human rights law is not static. It is capable of evolving to reflect societal changes and developments in the understanding of equality and means to further its aims. Unlike civil litigation between private parties, a public interest accompanies that of any particular respondent and complainant. On their face, these complaints raise a complex societal issue. The mass marketing of pornographic magazines is, in historical terms, a relatively recent phenomenon some four decades old and its effect on the society at large has been the subject of considerable study and public opinion.

136This complaint raises for the first time in a human rights setting the impact of a particular mass marketing venue for these magazines (neighbourhood convenience stores) on the complainants' rights as women to equal treatment in the provision of services. It does not raise the issue of the existence of these magazines. It is the applicability or non-applicability of s. 1 which is the issue to be addressed by the Board. A review of these provisions does not make it self-evident that this complaint falls outside the Code.

137The Code preamble states:

WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

AND WHEREAS it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province.

Part 1 of the Code, headed Freedom from Discrimination, provides the following:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of . . . sex . . .

2. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

3. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

Under part 2, s. 10 defines the word "services" as not including "a levy, fee, tax or periodic payment imposed by law." No positive definition is set out, in other words. The term "equal" is defined as meaning "subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination." The right to equal treatment without discrimination because of sex is clarified in s. 10(2) as including "the right to equal treatment without discrimination because . . . a woman is or may become pregnant."

138As can be seen from the above provisions, the words "right to equal treatment in the provision of services" are not capable of precise interpretation in the abstract. Questions put in issue by this complaint include: What is the nature and extent of a service? What is the nature and extent of the right to equal treatment?

139How can a board begin to address responsibly the issues arising from the complaint based on a few summary, inconsistent and incomplete documents, in the absence of any determinative case law, and without the benefit of a hearing on the merits? To determine what constitutes the right to equal treatment to services without discrimination because of sex on the basis of the materials put forward on this preliminary motion would be tantamount to prejudging the case — the ultimate unfairness.

140To properly discharge the Board's obligations under the Code, a hearing into the merits of the complaint is required before it can be confirmed or denied that a right has been or has not been infringed.

141This motion is dismissed.

Motion No. 3 — Dismissal on Constitutional Grounds

142In an earlier decision of this Board, intervener or interested party status was sought by a number of applicants. The Board determined that it would not grant such status but would allow all those who had expressed an interest in the proceedings to present their views in writing at the end of the hearing for consideration and the Board would decide at that time if further involvement was appropriate. A small exception to this postponement of submissions to the end of the hearing was that the Board stated it would be willing to receive written submissions and grant permissions to make oral submissions, if appropriate, on preliminary matters. As a result, the CCLA made written submissions and was granted permission to make oral argument in support of those submissions.

143As the arguments of the CCLA involved constitutional issues, the Attorney General of Ontario was notified and Ms. Minor presented written and oral arguments on the Attorney General's behalf.

1. Argument Presented by CCLA

144Mr. Laskin's arguments on behalf of CCLA, regarding Charter rights to freedom of expression, are set out in the decision of Co-Chair Mikus. In addition, Mr. Taman on behalf of the CCLA argued that the sale and distribution of pornographic magazines are federal matters and outside provincial powers and that the complaints, if accepted, would result in an order dealing with such sale and distribution. Such an order would invade an exclusively federal power — to make legislation with respect to criminal matters, i.e., the Criminal Code. It is not argued that the federal government has paramountcy or has occupied the field. The CCLA did not dispute the constitutional validity of s. 1 of the Code, which was acknowledged to be valid provincial legislation.

145The crux of the CCLA's argument on this motion is the submission that for the complainants' claim to succeed, an order supporting the complaints under s. 41 would have to read the following specific words into s. 1:

The right to equal treatment with respect to services without discrimination by reason of sex is infringed by the display and sale of pornographic or adult magazines in a facility where the public has general access.

146An order of this Board, if it were worded as CCLA suggests it would have to be, would be open to constitutional challenge, CCLA submitted, because it would then be identical to the Criminal Code [R.S.C. 1985, c. C-46] provisions in s. 163 as follows:

Everyone commits an offence who sells, exposes to public view or has in his possession for such purpose any obscene written matter, picture, model, phonograph record or other thing whatsoever.

147In summary, having made the order in the form proposed by CCLA, and thus having offended the division of powers set out in our Constitution, the Board would have acted unconstitutionally and without jurisdiction.

2. Arguments of the Attorney General

148Ms. Minor, on behalf of the Attorney General, argued that there was no legal authority for stating that pornography was solely an issue to be addressed under the federal criminal law. Indeed, cases overwhelmingly support the conclusion that both provincial and federal governments have authority to draft legislation in this area.

149The Supreme Court of Canada in Re Nova Scotia Board of Censors v. McNeil(1978), 1978 CanLII 6 (SCC), 84 D.L.R. (3d) 1 (S.C.C.) upheld the validity of provincial legislation regulating the public's access to pornographic films, stating the legislation was not concerned with criminality but moral standards which the Court considered to be a matter of a "local and private nature in a province."

3. Arguments of the Commission and the Complainant, P. Findlay

150The Commission and Ms. Landau, agent for Ms. Findlay, agreed with the submissions of the Attorney General and added there was no case presented as authority for the proposition that it was appropriate to decide constitutional issues or jurisdictional validity in an information vacuum, such as existed in this case on a preliminary motion. The Supreme Court of Canada in MacKay v. Government of Manitoba (1989), 61 D.L.R. (4th) 686 (S.C.C.) expressed the need for a full evidentiary base in Charter determinations as follows:

Charter cases will frequently be concerned with concepts and principles that are of fundamental importance to Canadian society . . . Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.

A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe the Charter but its effects. If the deleterious effects are not established there can be no Charter violation and no case has been made out. Thus, the absence of a factual basis is not just a technicality that can be overlooked, but rather it is a flaw that is fatal to the appellant's position.

It was noted that the cases cited by the CCLA in support of this motion were all decided after a full hearing of the issues to be addressed.

4. Conclusions

151One of the cases put before the Board was a recent decision of the Supreme Court of Canada, R. v. Butler, 1992 CanLII 124 (SCC), [1992] 1 S.C.R. 452, in which the Court contemplated the scope of the Criminal Code provisions in s. 163. At issue in that case was the constitutional validity of the definition of obscenity in s. 163(8). The CCLA, an intervenor in that case, argued that the objectives under the Criminal Code could be met by "alternative, less intrusive measures (such as) . . . reasonable time, manner and place restrictions" of obscene materials. Mr. Justice Sopinka on behalf of the majority stated:

I am of the view that this argument should be rejected. Once it has been established that the objective is the avoidance of harm caused by the degradation which many women feel as "victims" of the message of obscenity, and of the negative impact exposure to such material has on perceptions and attitudes towards women, it is untenable to argue that these harms could be avoided by placing restrictions on access to such material. Making the materials more difficult to obtain by increasing their cost and reducing their availability does not achieve the same objective. Once Parliament has reasonably concluded that certain acts are harmful to certain groups in society and to society in general, it would be inconsistent, if not hypocritical, to argue that such acts could be committed in more restrictive conditions. The harm sought to be avoided would be the same in either case.

. . . It is noteworthy that many of the above suggested alternatives are in the form of responses to the harm engendered by negative attitudes against women. The role of the impugned provision is to control the dissemination of the very images that contribute to such attitudes. Moreover, it is true that there are additional measures which could alleviate the problem of violence against women . . . Education, too, may offer a means of combating negative attitudes to women . . . However, there is no reason to rely on education alone. It should be emphasized that this is in no way intended to deny the value of other education and counselling measures to deal with the roots and effects of negative attitudes. Rather, it is only to stress the arbitrariness and unacceptability of the claim that such measures represent the sole legitimate means of addressing the phenomenon. Serious social problems such as violence against women require multi-pronged approaches by government. Education and legislation are not alternatives but complements in addressing such problems. There is nothing in the Charter which requires Parliament to choose between such complementary measures. [Emphasis added.]

152Contrary to the CCLA's submissions in Butler, supra, and without reference to the Court's comments that the concerns which s. 163 addressed required a "multi-pronged" approach, the CCLA in this case argued that s. 163 of the Criminal Code is the only appropriate constitutional avenue for the regulation of the harm to society which pornographic materials might create.

153In my view, the concern expressed by the Supreme Court of Canada in MacKay, supra, — that constitutional or Charter decisions not be made in a vacuum at the behest of enthusiastic counsel — is present in this case. The Board is being asked on this preliminary motion to adopt an order proposed by the CCLA as the only possible order the Board could make should the complaints succeed, and then is asked to agree with CCLA that such an order would be unconstitutional. A minimum starting point, for a consideration of Charter issues, should surely be an actual order of this Board regarding the application of the Code to the merits of the complaint, not a hypothetical one as proposed by CCLA. The only order which I am prepared to make at this time is that the complaint merits a hearing, not that it merits a finding one way or the other under the Code.

154Having reviewed the arguments and case law submitted on the constitutional issues raised, I agree with the submissions of the Attorney General, the Commission and Ms. Findlay that: 1) the constitutional issues raised by CCLA are premature; 2) as an accepted principle of constitutional law, a court or board should not decide constitutional issues unless necessary to determine the case before it; and 3) the constitutional issues should not be decided without prior determination of the nature and extent of the application of the Code to the facts in issue.

155In summary, I would dismiss all three preliminary motions for the reasons above stated and direct that the hearing into the merits of the complaints by Ms. Findlay and Ms. McKay begin.

REASONS BY F.H. ZEMANS

156This Board of Inquiry was appointed in January 1993 by the Minister of Citizenship, the Honourable Elaine Ziemba, to inquire into the complaints brought by Ms. Pat Findlay and Dr. M. McKay against three variety stores and one individual. These complaints allege that the respondents contravened the Ontario Human Rights Code, R.S.O. 1981, c. 53, as amended (hereinafter the "Code") by displaying and selling certain magazines in their convenience stores, that offer a general service to the public and thereby creating a hostile environment to and discriminating against women. The complainants further allege that their right to equal treatment with respect to services, goods and facilities was infringed because of their sex, in violation of ss. 1 and 8 [of] the Code, which read as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap.

2. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

157At the outset of the hearing, three preliminary applications were brought by the respondent Four Star Variety. All three application[s] deal with the fundamental issue of whether this Board of Inquiry has jurisdiction to proceed to consider and to determine these complaints. I have had the opportunity of reading the decisions of my Co-Chairs with respect to the three applications of the respondent Four Star. I concur with my Co-Chair Ms. Hartman with respect to applications two and three. Application one asks us to find that the Human Rights Commission (hereinafter the "Commission") did not meet its statutory obligation to endeavour to effect a settlement of these complaints as required under ss. 33 and 36 of the Code. My Co-Chairs' decisions set out the facts before this Tribunal at the time these application[s] were argued. I do not find it necessary to repeat their thorough discussion of the facts and law. I concur with my Co-Chair Ms. Mikus' decision with respect to [the] first issue and have these additional reasons.

158Application one requires us to consider ss. 33 and 36 of the Code and to determine whether non-compliance with these sections may result in a loss of jurisdiction by a board of inquiry appointed pursuant to s. 38 of the Code and to consider this Board's ability to proceed with the inquiry.

159Section 33(1) reads as follows:

33(1) Subject to section 34, the Commission shall investigate a complaint and endeavour to effect a settlement.

Section 36(1) reads:

36(1) Where the Commission fails to effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may request the Minister to appoint a board of inquiry and refer the subject matter of the complaint to the board.

160The Legislature has clearly stated in s. 33 that the Human Rights Commission is required to both investigate all complaints and "endeavour to effect a settlement" prior to the appointment of a board of inquiry. The verb "shall" indicates that the Commission, when dealing with all human rights complaints pursuant to the Code, is required to "endeavour" to effect a settlement. The Commission has no discretion; "shall" is clearly imperative. Section 36 reinforces the statutory obligation of s. 33, by stating that the Commission may request the Minister to appoint a board of inquiry only in circumstances where the Commission has (i) failed to effect a settlement of the complaint; (ii) where it appears to the Commission that the procedure is appropriate; and (iii) where the evidence warrants an inquiry.

161Human rights legislation was introduced in western democracies in the post-World War II era to provide equality rights and protection against discrimination to all citizens. The intention of the Ontario Legislature in enacting human rights legislation can be found in the preamble to the Code:

WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

AND WHEREAS it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province.

162The Code creates substantive rights to equal treatment with respect to services, employment, accommodation, and specific prohibitions against harassment. As well as creating the Human Rights Commission and setting out its goals and responsibilities, ss. 31 to 44 create a procedural framework for the enforcement of the Code. The procedure allows citizens who wish to bring an incident of discrimination to the attention of the Commission to have their complaint investigated and to either have the complaint addressed informally through negotiations or conciliation or, in certain limited circumstances, to be determined by a public inquiry. The Code also creates a procedure to protect citizens from unfounded or inappropriate complaints being brought to hearing. Sections 33 and 36 are central to the frame-work that establishes that the Commission is required to both investigate and actively attempt to resolve all human rights complaints. The procedure in the Code for resolution of complaints implies that only a limited number of the complaints will actually proceed to a board and provides that neither a complainant nor a respondent may determine whether a complaint proceeds to a hearing. Rather the decision to proceed with a complaint and to request a board of inquiry is the Commission's and not the decision of a party to the complaint.

163Section 34 requires the Commission to determine whether it will deal with the complaint. Section 36 requires the Commission to decide if it considers it appropriate to request the Minister to appoint a board of inquiry. Section 37 allows only complainants to request reconsideration of a negative decision of the Commission, under either subsection 34(2) or 36(2). The Code has created a procedure which sets out specifically the rights of complainants and respondents and the obligations of the Commission. The requirement in s. 33(1) that the Commission shall endeavour to effect a settlement is a mandatory obligation of the Commission which is of potential benefit to all parties to a human rights complaint. The legislation balances the interests of complainants who may wish to have a perceived wrong addressed by a public inquiry and the need to insure that respondents will be subjected to the time and expense of a public inquiry only where the Commission both considers such an inquiry appropriate and is unable to successfully conclude a settlement.

164Section 33(1) requires the Commission to both conduct a reasonable investigation of the complaint and to make a reasonable effort to settle the complaint. Both these obligations must be fulfilled by the Commission and neither can be ignored. Section 33(1) is a procedural safeguard which is written in clear and specific language. What is the effect of non-compliance with this statutory condition?

165Wade in his Administrative Law, 6th ed. (1988) writes:

Acts of Parliament conferring power on public authorities very commonly impose conditions about procedure, for example by requiring that a notice shall be served and that action shall be taken within a specified time or that the decision shall state reasons. If the authority fails to observe such a condition, is its action ultra vires? The answer depends upon whether the condition is held to be mandatory or directory, non-observance of a mandatory condition is fatal to the validity of the action. But if the condition is held to be merely directory, its non-observance will not matter for this purpose.

166The case law and public law writers have analyzed the distinction between mandatory and direct conditions. Wade, supra, continues at pp. 246–47:

Sometimes the legislation makes it plain what the effect of non-observance is to be. But more often it does not, and then the court must determine the question. This the court does by weighing the inconvenience of holding the condition ineffective against the inconvenience of insisting upon it rigidly. It is a question of construction, to be settled by looking at the whole scheme and purpose of the Act and by weighing the importance of the condition, the prejudice to private rights and the claims of the public interest . . .

Procedural safeguards, which are so often imposed for the benefit of persons affected by the exercise of administrative powers, are normally regarded as mandatory, so that it is fatal to disregard them.

167I agree with Ms. Mikus that the Commission has not fulfilled its statutory obligations with respect to "endeavouring to effect a settlement." The Commission, in its factum, conceded that it did not engage in settlement or conciliation discussions with the respondents and argued that if the respondents were interested in resolving the complaints herein they could have done so after they received the Commission's standard form letter which enclosed a copy of the investigator's report. I cannot agree with the Commission's assertion that by investigating the complaints and informing the respondents of their investigation that they have complied with the statutory obligation to endeavour to settle the complaint.

168Webster's New International Dictionary defines "endeavour" as "to exert (oneself) strenuously"; and "to exert physical or intellectual strength for the attainment of; to strive to achieve or reach; to try." I have concluded that s. 33(1) requires the Commission to strive to effect a settlement and that no such effort was applied by the Commission with respect to these complaints. I further find that the Code clearly places the obligation to attempt to settle on the Commission. This procedural safeguard was legislated for the benefit of both complainants and respondents to assure that the Commission would attempt to resolve the numerous complaints it receives in a timely and efficient fashion. All parties and the public have the right to expect that reasonable attempts at informal dispute resolution will be exerted prior to the Commission requesting that a board of inquiry be appointed.

169Sections 33 and 36 require the Commission to strive to achieve a settlement of all human rights complaints. In my opinion, it did not do so in respect of these complaints. This procedural oversight significantly prejudices the rights of the respondents and cannot be corrected by proceeding with a lengthy public inquiry into these complaints. By virtue of the Commission not having complied with its statutory obligations pursuant to ss. 33(1) and 36(1) of the Code, I conclude that a mandatory condition precedent to our appointment has been ignored. I accept the application of the respondent Four Star that as the Commission has not fulfilled its statutory obligations, we lack jurisdiction to proceed with this inquiry into the complaint against the respondent Four Star. I invite submissions from the Commission and the other respondents as to the impact of this decision on the other respondents.

• Ed. Note: The Board has quoted s. 28 of S.O. 1981, c. 53.