Ontario Board of Inquiry
Alan Shreve Complainant
v.
Corporation of the City of Windsor and Jerry Hancock Respondents
Before: Ontario Board of Inquiry, Robert W. Kerr
Comm. Decision No.: 473A
Appearances by:
Alan Shreve, on his own behalf
Mark Hart, Counsel for the Ontario Human Rights Commission
Patrick Brode, Counsel for the Respondent City of Windsor
Leonard P. Kavanaugh, Counsel for the Respondent Jerry Hancock
HUMAN RIGHTS COMMISSIONS — PROCEDURE — investigative procedure — appointment process — procedural fairness — delay and non-disclosure as abuse of process — COMPLAINTS — fairness in investigation of complaint — DISCRIMINATION — mixed motivation
PARTIES — respondent remains party despite withdrawal of liability claim — INTERPRETATION OF STATUTES — definition of "person appearing to the board of inquiry to have infringed the right"
BOARDS OF INQUIRY/TRIBUNALS — authority to rule on Charter question — CANADIAN CHARTER OF RIGHTS AND FREEDOMS — procedural fairness in s. 7 (security of the person) — s. 11 (rights upon being charged with an offence)
Summary: This is a decision on preliminary motions made by the respondents. The City of Windsor and Jerry Hancock move that the complaint be dismissed or permanently stayed on the inter-related grounds that 1) the process followed by the Commission and its staff leading to the appointment of the Board of Inquiry was an abuse of process 2) a fair hearing cannot now be held because of the delay between the events and the hearing and 3) lack of disclosure to the respondents by the Commission has deprived them of an adequate opportunity to prepare their case.
The respondents allege that there has been an abuse of process because the Commission sought to use this complaint for the ulterior purpose of imposing on the respondent an affirmative action program which would go well beyond the scope of the complaint. Also the respondents contend that the Commission's investigating officer biased the proceedings by taking on the role of advocate of the complainant. Finally, the respondents contend that the Commission failed to apply s. 34(1)(d) of the Code which deals with complaints based on events which occurred more than six months earlier.
While there is evidence that Commission officers discussed the complaint as having systemic aspects, and in settlement discussions the Commission suggested that the respondent agree to a policy to recruit members of minority groups, which would go beyond the scope of the complaint, the Board of Inquiry does not find that this constituted an abuse of process. Individual incidents of discrimination often are a sign of a larger systemic problem. It is not uncommon for the Commission to seek by way of settlement or order a remedy which addresses discrimination in a broader way. Even if this were an abuse of process, it could be rectified at a hearing. A Board of Inquiry can only make an order which is related to the complaint.
The investigating officer did make errors in the preparation of the record for consideration by the Commissioners. Some of these were merely the consequence of human errors. However, the record does indicate that the officer had a bias in favour of the complainant during her investigation of the complaint. Though it is Commission policy that the investigation be impartial, the officer was not completely impartial in this case. Nonetheless, the Board of Inquiry concludes that the advocacy role played by the investigating officer did not in itself constitute an abuse of process or violate fairness beyond the power of the Board of Inquiry to rectify in the normal hearing process.
With respect to applying s. 34(1)(d), the Board of Inquiry finds that this section gives the Commission broad discretion to deal with complaints based on events which occurred prior to six months before the complaint was made. The Commission need not provide any specific reasons for doing so. In this case presumably the Commission dealt with this issue, among others, when it determined to send the complaint forward to a hearing. It is not required to do more.
On the question of delay the Board of Inquiry finds that the delay was excessive. The events on which the complaint is based occurred during the winter of 1985. The precipitating event occurred on May 30, 1986. The complaint was filed on August 13, 1986. The Board of Inquiry was not appointed until May 12, 1992. The largest part of this delay is attributable to the Commission.
Though the delay is excessive, the test of whether a complaint should be dismissed or stayed because of delay is whether there is serious prejudice to the respondent's ability to present its case. The respondents in this case claim such prejudice based on the inability of witnesses to recall relevant events and the death of one witness in 1989.
The Board of Inquiry finds that even with the delay in this case, it is not satisfied that delay alone has seriously prejudiced the respondent. There is reason to believe that witnesses have sufficient memories of relevant events. Also while the potential witness could have served as a character and background witness, he was not a key witness.
Regarding disclosure, the Board of Inquiry finds that the Commission is not required to provide full disclosure as is required in criminal and civil procedures. The respondent is entitled to information regarding the substance of the allegation, and may be entitled to further particulars to enable it to identify relevant events. But this does not mean that the respondent is entitled to disclosure of witness statements or even the names of witnesses upon whom the Commission will rely. It is the practice of the Commision currently to disclose the names of witnesses shortly before the actual hearing by a Board of Inquiry. This is a deliberate practice because of the inadequacy of the mechanisms available to protect witnesses from reprisals until the Board of Inquiry is in place. The Board of Inquiry finds that the information provided to the respondents in this case prior to the hearing was essentialy adequate.
Section 8 of the Statutory Powers Procedure Act states that the respondent must be provided with "reasonable information of any allegations." In ordinary circumstances the Commission would have satisfied this. However, the Board of Inquiry finds that what is reasonable in these circumstances must also take account of the fact that the investigating officer acted to some extent as an advocate of the complaint and the entire proceedings were excessively delayed. The policy of the Commission to withhold the names of witnesses until the matter is before a Board is rationally based, and is fair if the complaint is dealt with in a prompt manner. But when the respondent is left in the dark for years as to the identity of witnesses, its own opportunity to interview these witnesses or to identify evidence to counter them is hindered. Since the investigating officer's report may also not have been impartial, this may also have prejudiced the respondent's preparation.
The Board of Inquiry concludes that taken separately the bias of the investigating officer, lapse of time and restricted disclosure by the Commission would not necessarily, nor on the facts of this case, deprive the respondents of a fair hearing. In combination, however, these circumstances prejudiced the ability of the respondents to prepare their case in a timely fashion. This violates the principle of fairness, and this prejudice cannot be cured at the Board of Inquiry stage.
For these reasons the Board of Inquiry dismisses the complaint against the City of Windsor and Jerry Hancock.
[Ed. Note: See also preliminary decision (1992), 1992 CanLII 14241 (ON HRT), 17 C.H.R.R. D/256 (Ont. Bd.Inq.) and related case Hancock v. Shreve (November 10, 1992), (Ont. Ct. (Gen.Div.)) [unreported].]
Cases Cited
Adair v. K.B. Home Insulation Ltd. (1991), 1991 CanLII 13133 (ON HRT), 15 C.H.R.R. D/331 (Ont. Bd.Inq.): 80, 85
Cuddy Chicks Ltd. v. Ontario (Labour Relations Board) (1991), 1991 CanLII 57 (SCC), 81 D.L.R. (4th) 121 (S.C.C.): 17
Guthro v. Westinghouse Canada Inc. (No. 2) (1991), 1991 CanLII 13135 (ON HRT), 15 C.H.R.R. D/388 (Ont. Bd.Inq.): 60
Haber and Wellesley Hospital (Re) (1986), 1986 CanLII 2766 (ON HCJ), 56 O.R. (2d) 553 (Div.Ct.); aff'd (1988), 1988 CanLII 4714 (ON CA), 62 O.R. (2d) 756 (C.A.): 15
Hancock v. Shreve (November 10, 1992), (Ont. Ct. (Gen.Div.)) [unreported]: 2
Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561, 96 D.L.R. (3d) 14: 15
Hyman v. Southam Murray Printing Ltd. (No. 1) (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.): 60
Kodellas v. Saskatchewan (Human Rights Comm.), 1989 CanLII 284 (SK CA), [1989] 5 W.W.R. 1, 10 C.H.R.R. D/6305 (Sask. C.A.): 61
Motorways Direct Transport Ltd. v. Canada (Human Rights Comm.) (1991), 1991 CanLII 13186 (FC), 36 C.C.E.L. 201, 16 C.H.R.R. D/459 (F.C.T.D.): 61
Munsch v. York Condominium Corp. No. 60 (1992), 1992 CanLII 14246 (ON HRT), 18 C.H.R.R. D/339 (Ont. Bd.Inq.): 60, 66, 67
O.P.E.I.U., Local 267 v. Domtar Inc. (No. 1) (1988), 1988 CanLII 8877 (ON HRT), 10 C.H.R.R. D/5968 (Ont. Bd.Inq.): 60
Salamon v. Searchers Paralegal Services (1987), 1987 CanLII 8508 (ON HRT), 8 C.H.R.R. D/4162 (Ont. Bd.Inq.): 80, 85
Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181, 124 D.L.R. (3d) 193, 2 C.H.R.R. D/468: 40
Waterman v. National Life Assurance Co. of Canada (No. 1) (1992), 1992 CanLII 14298 (ON HRT), 18 C.H.R.R. D/173 (Ont. Bd.Inq.): 32
Williams and Kemptville Dist. Hospital (Re) (1986), 1986 CanLII 2503 (ON HCJ), 55 O.R. (2d) 633 (H.C.J.): 15
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: 80
s. 7: 10, 62
s. 11: 10, 62, 106
s. 24: 18
Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, s. 52(1): 17
Ontario
Human Rights Code, R.S.O. 1990, c. H.19: 5, 17, 48, 63, 88
Part I: 8
s. 7: 106
s. 29(b): 24
s. 29(c): 24
s. 33: 49
s. 33(5): 91
s. 34: 52
s. 34(1): 49, 53
s. 34(1)(d): 20, 46, 49
s. 36: 49
s. 36(1): 40, 49
s. 36(2): 40
s. 39(2)(a): 39
s. 39(2)(c): 6, 8
s. 39(2)(d): 6
s. 39(3): 8
s. 41(1): 8
s. 41(4): 107
s. 44: 63
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22
s. 8: 79, 86, 91
s. 23: 85
s. 23(1): 13, 17, 108
INTRODUCTION
1In a previous written preliminary decision in this matter following a one-day hearing on June 18, 1992, I denied motions from the respondents to adjourn the proceedings pending applications for judicial review of the process leading up to my appointment. It proved impossible, however, to find dates to continue the hearing when all parties were available until November 23, 1992. In the interim, the respondents filed applications for judicial review in Divisional Court and a court date was set for November 8, 1992.
2The Ontario Human Rights Commission filed a motion to quash the applications of the respondents on the grounds that they were premature. This motion was granted by the Divisional Court on November 10, 1992 [Hancock v. Shreve]. By agreement of the parties, four days which had been scheduled for continuation of the hearing when I sat in June were allocated for the purpose of receiving evidence and argument on preliminary motions from the respondents that I should dismiss or permanently stay these proceedings. As it turned out, five days were necessary for the hearing of evidence related to these motions, together with two days of argument.
3I note that, for the purposes of the discussion which follows, some distinction needs to be drawn, at least for the sake of clarity, between the Commission as a total body, including its officers and agents, and the Commission in the sense of a meeting of its members formally to exercise certain decision-making powers under the statute. I will use the word "Commission" to refer to the total body and the word "Commissioners" to refer to the total decision-making body.
STATUS OF THE RESPONDENT HANCOCK
4At the commencement of this part of the hearing, the Commission advised that it no longer sought a finding or remedy against the respondent Hancock and proposed that he no longer be considered a party to these proceedings. The respondent Hancock objected to this unless the Commission was also ready to withdraw allegations about him in the complaint. The Commission was not prepared to do this since these allegations also form much of the basis of the claim against the respondent Corporation.
5Here and throughout this decision, for convenience of reference I will cite the provisions of the Code from the Revised Statutes of 1990 [c. H.19]. Although the events occurred prior to the coming into force of the current Revised Statutes, there has been no change in the wording or law of the Code relevant to this case from that in force when the events occurred.
6I heard submissions from the parties as to whether the respondent Hancock remained a party to the proceedings in light of the withdrawal of the claim for personal liability against him. I concluded that he remained a party either by virtue of s. 39(2)(c) or s. 39(2)(d) of the Human Rights Code.
I hesitated to rule definitively on the basis of s. 39(2)(c) since one implication of such a ruling might be that, once a person has been named as respondent by the Commission, they could not be removed as a party even with consent. I decided that in any event the respondent Hancock remained a party by virtue of s. 39(2)(d) if he so wished.
7In so ruling, it was my interpretation that this section, which refers to a "person appearing to the board of inquiry to have infringed the right," must mean a person who, based on the material before the Board, might be found to have infringed the right at the conclusion of the hearing. Otherwise this provision would serve no purpose. In light of the basic requirements of fairness, anyone identified as a party is entitled to a fair hearing. This would obviously be impossible if a person is not named as a party until after the hearing is over. In light of the allegations in the complaint about the respondent Hancock, he clearly was a person who might be found, at the conclusion of the hearing, to have infringed a right under the Code.
8By virtue of s. 41(1) of the Code, any person who is a party to the proceeding is potentially subject to a remedial order if found to have infringed a right under Part I of the Code. Although the respondent Hancock as a practical matter remains a party by choice, he is for all purposes a full party to these proceedings. No terms under s. 39(3) were placed upon his becoming a party, nor do I think any terms were called for since, up to that point in the proceedings, he had already been a party by virtue of s. 39(2)(c).
GROUNDS OF THE PRELIMINARY MOTIONS
9The grounds of the respondents' motions to dismiss or permanently stay these proceedings are all based on the principle of fairness. Because of this, all the grounds are inter-related, but three distinct violations of fairness are alleged. First, the process followed by the Commission and its staff leading to the decision to request appointment of a board of inquiry is claimed to be an abuse of process. Secondly, it is argued that fair hearing cannot now be held because of the lapse of time between the events alleged in the complaint and my appointment. Thirdly, it is submitted lack of disclosure to the respondents by the Commission has deprived them of an adequate opportunity to prepare their case.
10In the case of the respondent Hancock, this claim is based, not only on the common law principles of administrative fairness, but also on the requirements of fundamental justice and legal rights under ss. 7 and 11 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].
11Before I proceed to deal with these grounds, I note that considerable evidence was led before me which is potentially relevant to the actual merits of the complaint. This occurred because of the alleged abuse of process related primarily to the recording of the results of the investigation by the Commission officer. This made material collected by the officer relevant to the preliminary motions before me.
In order to assure the parties that they need not, and should not, go any further down that road than necessary, I made it clear early in the hearing that I would not consider the actual merits of the complaint to be relevant to the motions before me. Thus, whatever I rule here — whether I grant or deny the motions — it cannot be taken as any determination that the complainant was, or was not, the victim of discrimination by the respondents or, conversely, that the respondents did, or did not, discriminate against the complainant.
JURISDICTIONAL QUESTIONS
12Two paragraphs from the endorsement of the Divisional Court relate to my jurisdiction on these matters:
We follow the decision of this Court in Latif v. OHRC et al. (unreported, March 11, 1992; leave to appeal refused, June 8, 1992) in which Callaghan C.J.O.C., on behalf of the Court said:
It is the duty of the Board of Inquiry, not this Court, to decide in the first instance whether the complaint should be stayed or dismissed for delay.
The Court in Latif said the case was governed by the principle in Ressel v. The Board of Directors of Chiropractic (Ont.) (1990), 41 O.A.C. 321, another decision of the Divisional Court, in which it was pointed out that the constitutional issues raised in the prohibition application before the Court might well be moot, depending on the Board's view of the evidence and the merits, and that the Court would benefit from a complete record of the evidence bearing on those issues. The same considerations apply in this case.
Turning to the question of the alleged failure to disclose information to Mr. Hancock and the City regarding the case against them, it is our view that the significance of that fact as well would be better decided by the Board after a hearing. There has been a significant amount of disclosure in this case. It is not a case like Re Gage v. Attorney-General for Ontario (1992), 1992 CanLII 8517 (ON CTGDDC), 90 D.L.R. (4th) 537, in which the unfairness was so obvious that it was held to be inappropriate to put the applicant for prohibition through a hearing before the tribunal. If it were clear that there would be a denial of justice in this case, we would exercise our inherent supervisory jurisdiction at this stage to prevent that injustice, despite the existence of the right of appeal. Instead, we think it proper in this case to rely on the Board to decide after a full hearing whether the delay and the failure to disclose information to Mr. Hancock should affect its decision. In so doing, we accept the submission of Mr. Hart, counsel for OHRC, that the Board will give due consideration to these matters.
13The statutory basis of my jurisdiction to deal with such issues is s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22:
A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
While this provision might be interpreted to relate only to internal aspects of the proceedings before me, I take the endorsement of the Divisional Court as an acceptance that the power is broader than this. It is obvious that the motions before the Court raised issues not internal to the proceedings before me. By its decision, the Court necessarily indicates that my jurisdiction with respect to abuse of process extends to such issues.
14As submitted by the Commission, I accept that there would need to be some nexus between an abuse of process at an earlier stage in the proceedings and the availability of a fair hearing before me. Otherwise, it could not be said in any sense by a tribunal that there was an "abuse of its processes."
15It is possible that, where administrative proceedings involve a series of steps, a violation of fairness at an earlier step may be cured by the opportunity of a full and fair hearing at a later step: Harelkin v. University of Regina(1979), 1979 CanLII 18 (SCC), 96 D.L.R. (3d) 14 (S.C.C.) at 46–47; Re Haber and Medical Advisory Committee of the Wellesley Hospital(1986), 1986 CanLII 2766 (ON HCJ), 56 O.R. (2d) 553 (Div.Ct.) at 567; aff'd (1988), 1988 CanLII 4714 (ON CA), 62 O.R. (2d) 756 (C.A.); Re Williams and Board of Directors of Kemptville District Hospital(1986), 1986 CanLII 2503 (ON HCJ), 55 O.R. (2d) 633 (H.C.J.) at 637.
16The fact, however, that an abuse of process was engaged in by a separate, and indeed arms-length, body from the Tribunal in question does not preclude the possibility of a nexus between the abuse and processes of the Tribunal. Similarly, the availability of a fair proceeding by the Tribunal in question does not necessarily mean that all unfairness at any earlier step can be cured. The particular circumstances need to be examined to determine if proceedings by the Tribunal in question will be free of taint from an earlier abuse of process and can cure unfairness that occurred at an earlier step. Thus, it is within my powers to examine the merits of the allegations of unfairness made by the respondents in this case to determine whether, in light thereof, continuation of the proceedings before me would be an abuse of process.
17Another jurisdictional question arises with respect to the respondent Hancock's argument based on the Charter. The power of administrative tribunals to address alleged violations of Charter rights has been dealt with in large part, but not exhaustively, in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board)(1991), 1991 CanLII 57 (SCC), 81 D.L.R. (4th) 121 (S.C.C.) at 127–29. While the authority of a board of inquiry under the Human Rights Code to determine questions of law is not explicit, as is the power of the Ontario Labour Relations Board, the application of the Code necessitates the exercise of such power. Thus, based on Cuddy Chicks, a board of inquiry is at least entitled to rule whether the Charter as the supreme law affects a question before the board by virtue of s. 52(1) of the Constitution Act, 1982. If, as a result, a board finds an abuse of process by virtue of a violation of a Charter right, the board must surely be able to exercise its power under s. 23(1) of the Statutory Powers Procedure Act as much as it could if there were an abuse of process based on administrative law principles.
18While it is probably not necessary to decide this for the purposes of this case, it follows logically from the power of a tribunal to apply the Charter by virtue of s. 52(1) that the tribunal is to all intents and purposes a "court of competent jurisdiction" for the purposes of s. 24 of the Charter. This is because s. 24 does not confer any new jurisdiction on a court, but merely empowers it to apply the Charter to cases within the normal jurisdiction of the court and in accordance with its normal remedial powers. This is precisely what an administrative tribunal will end up doing if it gives effect to the Charter by virtue of s. 52(1).
ABUSE OF PROCESS
19As already noted, the grounds of the respondents' motions overlap. Thus, in one sense, all involve questions of abuse of process. The questions of delay and non-disclosure, however, are subject to principles distinguishable from the general concept of abuse of process and thus are appropriately dealt with separately.
20There are three alleged abuses of process that need to be dealt with on the basis of the general concept. First, it is submitted that the Commission was seeking to use this particular complaint for the ulterior purpose of imposing on the respondent Corporation a program of affirmative hiring of minorities going well beyond the scope of the complaint. Secondly, it is submitted that the Commission officer assigned to investigate the complaint biased the proceedings before the Commission by taking on the role of an advocate of the complainant, manipulating the contents of the complaint, and distorting the case record which ultimately went to the Commissioners for their review. Finally, it is submitted that the Commission failed to apply s. 34(1)(d) of the Code relating to facts in a complaint which occurred more than six months earlier.
21To deal first with whether the Commission was acting for an ulterior purpose, there is some evidence to suggest that officers from the Commission had determined to use this complaint as the launching pad for a much larger systemic discrimination case against the respondent Corporation. On its face, the complaint before me involves a discrete set of events. While these events, if they involve discrimination, might be symptomatic of systemic discrimination, there is no real allegation of this in the complaint.
22The evidence consisted of statements allegedly made in conversation by Commission officers, as well as the nature of the settlement proposed by the complainant and the Commission. The proposed settlement included a provision by which the respondent Corporation would agree to a policy to recruit members of minority groups. This would go beyond the scope of the actual complaint.
23I do not find the evidence of conversations relating to this issue very persuasive. According to the evidence, any such conversations took place in a context in which such matters are commonly raised in an informal way. Such conversations are not very probative of the intentions of the Commission.
24The proposed settlement is rather stronger evidence that the Commission was using this complaint for purposes beyond relief of injury suffered by the complainant. On the other hand, the roles of the Commission under s. 29(b)–(c) of the Code include promoting compliance with the Code and, in particular, recommending programs of an affirmative action nature. Individual incidents of discrimination often are a sign of a larger systemic problem. It is not uncommon, therefore, for the Commission to seek, either by way of an undertaking as part of a settlement, or by way of an order from a board of inquiry, a remedy which addresses discrimination in a wider way.
25While the action sought in this case was substantial, I do not think this constituted an abuse of process. Since the proposal involved expansion of a program already in place to recruit women, the Commission did not perhaps see it as being so significant a change in policy as the respondent Corporation did.
26In any event, even if this was an abuse of process, it is one which can readily be rectified in the normal course of proceedings before a board of inquiry. A board is constrained by the principle of fairness, and indeed limited by jurisdiction, to granting an order related to the complaint and to any infringement found to have occurred. As a result, I do not see any serious prejudice to the respondents if the Commission did attempt to make something bigger out of the case than perhaps it deserved to be.
27The way in which the investigating officer dealt with the case is another story. Much of the hearing on the respondents' motions was devoted to an exhaustive examination of alleged discrepancies between the material which the officer had before her and the record which she prepared based on this material. The record was to be part of the file to be considered by the Commissioners in deciding whether to appoint a board of inquiry.
28I note at the outset that my overall impression of the record which the investigating officer prepared is not nearly as bad as the respondents would have me perceive it. The material before the officer, and her record, were subjected to the scrutiny of an adversarial hearing in the proceedings before me. The record was produced under the far different conditions prevailing in an investigatory process.
29The reason our system provides for an adversarial hearing before any final decision is made about people's rights is precisely because a hearing is thought to be a more reliable way of getting at the truth. It should not be surprising if the results of an investigatory process, which is clearly what the officer is expected to carry out, contain errors and assumptions that are exposed in the adversarial process. Moreover, while this is to be expected in the presentation of the best case on behalf of their clients, I think counsel for the respondents tended to exaggerate many of the discrepancies between the material before the investigating officer and the record she prepared.
30Based on the evidence, nonetheless, it appears that there are a number of significant concerns about the record prepared by the investigating officer. When assisting the complainant with the preparation of the complaint, she played a significant role in determining the scope and contents of the complaint. At several points in her summary of the case, the officer made assertions favourable to the complainant, or unfavourable to the respondents, which seem unsupported by the material before her. It seems evident that she did adopt a certain advocacy role on behalf of the complainant.
31Some of the problems with the record prepared by the investigating officer are, I think, merely the consequence of human error. For example, the officer suggested the circumstances surrounding the decision not to hire the complainant, which was the incident precipitating this complaint, were suspicious because the person who got the job scored only slightly higher in the process than did the complainant. The score attributed to the person hired involved a significant error in calculation. This error appears to have been made by the investigating officer herself. In fact the person hired had a much greater total score than the complainant. I cannot believe that this error was committed knowingly by the officer since the error would be apparent from the record itself to anyone who took the trouble to examine it carefully.
32Nonetheless, the record indicates that the officer did adopt a bias in favour of the complainant during her investigation of the complaint. This raises an abuse of process concern in light of an affidavit from Mark Frawley, Director of Legal Services for the Commission. He stated that officers are "assigned to conduct an impartial investigation. To the extent that Officers are advocates, they are advocates for the Code and its enforcement." This is also the view that boards of inquiry have taken of the role of the investigating officer: Waterman v. National Life Assurance Company of Canada (Ont. Bd.Inq., unreported, September 8, 1992) [now reported 1992 CanLII 14298 (ON HRT), 18 C.H.R.R. D/173].
33One purpose of the Frawley affidavit was to demonstrate that the Commission's procedures are consistent with fairness. If the conduct of an impartial investigation by the officer is part of the policy developed by the Commission to ensure fairness, the question arises whether the efforts of the Commission to be fair are seriously compromised if the officer takes on an advocacy role on behalf of a complainant. This leads in turn to the question whether such a deviation from the process devised by the Commission constitutes an abuse of process that would affect the availability of a fair hearing from a board of inquiry.
34I would observe that adoption of an advocacy role by an investigating officer may cause other problems in the effectiveness of the Commission's process, apart from any effect on the fairness of a hearing. For example, it surely undermines the ability of the officer to play a mediative role between the parties which is also intended as part of the process. Indeed the advocacy role played by the officer in this case illustrates this risk in a particularly serious way.
35It is the practice, following the fact-finding conference, for the officer to invite the parties to engage in settlement discussions. This was done by the officer in this case. She made notes of this session, which is fine in itself since such notes might be useful in the event of further settlement discussions. What happened, however, is that the officer referred extensively to these notes for the purpose of framing her final comments on the case to be sent to the Commissioners.
36If settlement discussions are to be productive, anything said there should be without prejudice. It does not matter that the discussion may delve into the merits, since this may help the parties to explore possible bases for settlement. Not only was the officer's use of statements from this discussion a breach of the confidentiality which the parties had the right to expect, it was also particularly unfair to the respondents. It was done by way of response to the respondent Corporation's response to the original record prepared by the officer. Both responses were part of the file going to the Commissioners. The respondents would not appear to have had any opportunity to respond to these comments before the file went to the Commission. Moreover, since the notes on which these comments were based were not part of the endorsed record of the fact-finding conference, there is no reason to believe the respondents were even aware these notes existed.
37Since the Commissioners are presumably aware of the investigation process, it might be apparent to them that this portion of the officer's response was drawn from an entirely inappropriate source. On the other hand, I find it amazing that no one at the Commission would have reviewed this response and saw that comments based on settlement discussions were deleted before the response went to the Commissioners.
38Notwithstanding these concerns, I do not think that the problems with the record prepared by the investigating officer are an abuse of process sufficient in themselves to affect the availability of a fair hearing at the board of inquiry stage. The main reason for this conclusion is that the statute in fact places the officer in an ambiguous role which I think the officer in this case attempted in good faith to carry out. While she made mistakes, I do not think she did so with any malicious intent such as might constitute an abuse of process.
39It is not unreasonable that Commission staff assist complainants with the preparation of their complaints. While the obligation does not arise until the matter is referred to a board of inquiry, the Commission ultimately has a statutory obligation to carry the complaint: s. 39(2)(a). Since there is no way to tell at the intake stage which complaints may eventually go to a board, and it is difficult to correct a faulty complaint at a later stage, it behooves Commission staff to try to ensure that complaints are stated in the best possible form in the beginning. Thus, it can easily be difficult for officers to know when they are simply providing assistance and when they have slipped over into the role of advocates.
40While, particularly in light of the Commission's policy as stated in the Frawley affidavit, an officer should try to be objective in the preparation of the case record for the Commissioners, at the same time the role of the Commissioners in forwarding a complaint to a board of inquiry needs to be remembered. While s. 36(1) of the Code may appear to confer a wide discretion on the Commissioners as to whether to forward a complaint to a board of inquiry, this must be interpreted in light of s. 36(2) and the fact that in many cases a proceeding before a board of inquiry is the only recourse of a complainant in the event of an infringement of the Code: Seneca College of Applied Arts and Technology v. Bhadauria(1981), 1981 CanLII 29 (SCC), 124 D.L.R. (3d) 193 at 203 [2 C.H.R.R. D/468 at D/470] (S.C.C.).
41I think this places a greater obligation on the Commission at this stage to assure itself that the rights of the complainant are adequately considered than to assure consideration of the rights of the respondents. It is only the complainant whose rights can be ultimately prejudiced by a decision of the Commissioners at this stage. The rights of the respondent cannot be ultimately prejudiced until there has been a hearing before a board of inquiry.
42Thus, I think it acceptable for the officer to place greater emphasis on matters which support taking the complainant's claim to a hearing than on matters supporting the position of the respondent. The position of the respondent at this stage will usually amount essentially to a denial of the merits of the claim. This is a question belonging appropriately to a board of inquiry, not the Commissioners.
43While the use made by the officer of statements during the conciliation discussions following the fact-finding conference was a serious problem of fairness in her actions, I am not persuaded that she had any improper intent even in this regard. She had other material before her on which she could properly have made similar assertions. She probably selected the statements in question as presenting the points in a very straightforward manner. Since a failure to appropriately separate investigation from conciliation is inherent in the practice of assigning a single officer to do both in the same case, I am even doubtful whether she was adequately informed of the distinction.
44I note, moreover, that the respondent Corporation's reply to this part of the record was to deny that the statements in question had ever been made, which may of course be the case, rather than to object to the use of statements from conciliation discussions. This suggests that the person alleged to have made these statements, who was counsel for the respondent Corporation at the time, did not perceive the discussion in question as conciliation either.
45To the extent that the use of statements from conciliation in the record going to the Commissioners was unfair, this again is clearly within the power of the board of inquiry to rectify during the normal hearing process. Evidence of such statements would simply be treated as inadmissible.
I conclude that the advocacy role played by the investigating officer did not in itself constitute an abuse of process or violate fairness beyond the power of a board of inquiry to rectify in the normal hearing process.
46The question of whether the Commission failed to apply s. 34(1)(d) of the Code reveals some confusion, both over the meaning of this provision and how it is to be applied. With respect to the meaning of the provision, the respondents argue that it precludes the Commission from proceeding on facts occurring more than six months before a complaint is filed unless the Commission satisfies itself that the delay was in good faith and there is no prejudice to any person affected. This is definitely not what s. 34(1)(d) says. On the contrary, it confers a broad discretion on the Commission whether to deal with a complaint based on facts more than six months prior to the filing of the complaint.
47A conclusion that the delay was incurred in good faith without substantial prejudice to anyone operates to take away the Commission's discretion. In that case, the Commission must deal with the complaint. Otherwise, the Commission has a simple discretion to deal, or not to deal, with complaints on facts more than six months old. The questions of good faith and prejudice do not govern how the Commission exercises this discretion.
48While the wording of this provision is hard to grasp, it actually makes some sense in the context that proceedings under the Code may be the only recourse of persons whose rights under the Code are infringed. In the case of a delay of more than six months in the filing of a complaint, the right of such a person to have the Commission take up the complaint is still assured if the delay was in good faith and without prejudice. Otherwise, a complainant who waits more than six months is at risk that, for whatever reason the Commission considers appropriate in its discretion, the complaint will be declined.
49The other area of confusion is over how s. 34(1)(d) is applied in practice. Section 34(1) appears to relate to the process of investigation and conciliation of complaints, which is covered by s. 33 of the Code, not the determination of whether to refer a complaint to a board of inquiry under s. 36. On the other hand, the considerations relevant to requesting a board under s. 36(1) parallel some of the considerations under s. 34(1). It would seem proper for the Commissioners to consider any of the factors mentioned in s. 34(1) when exercising their power to request a board.
50According to a letter from another proceeding entered by counsel for the respondent Hancock, it does appear that consideration of the exercise of the Commission's discretion under s. 34(1)(d) may be given either or both during the investigation and conciliation process and during the Commissioners' determination of whether to appoint a board of inquiry. The respondent Hancock expressed concern that he never received a reply to a letter to the Commission requesting consideration of s. 34(1)(d). This request was included in what was in fact his response to the initial record prepared by the investigating officer.
51In the normal course, this response would be part of the file that went to the Commissioners. This is probably why there was no direct reply. I see no reason to doubt that this response was considered by the Commissioners, according to the normal procedure. Thus, the ultimate reply was by way of the Commissioners' decision to proceed to a board of inquiry.
52I see a more serious question as to whether any real consideration was given to s. 34(1)(d) during the investigation and conciliation process. The evidence would indicate that the investigating officer was in full charge of the complaint during this period. There is no evidence that the complaint was referred to one of her superiors for review until after she had completed this process. The evidence of the investigating officer indicates that she never really considered exercising discretion to exclude those facts occurring more than six months before the filing of the complaint. Indeed, and to the contrary, it appears that she took some initiative in having these facts included.
Under the structure of s. 34, however, it appears that the only onus on the Commission is to explain any exercise of its discretion to refuse to deal with a complaint to the complainant. There is no indication that a respondent has any rights in the matter.
53There is, of course, nothing improper in a respondent attempting to have the complaint dismissed under s. 34(1) at any time during the process. The point, however, is that, if the respondent's powers of persuasion fail to result in such a dismissal, I do not see how this can be seen as an abuse of process, unless there is some evidence that a decision with respect to the exercise of this discretion has been made for an improper purpose. There is no evidence of this here, given the mandate of the Commission to promote compliance with the Code. The matter of dismissal is at the discretion of the Commission, subject only to the right of a complainant to request reconsideration. The process through which the rights of the respondent are to be vindicated in such a case is by way of a hearing before a board of inquiry.
54In summary, with reference to the effort of the Commission to obtain an affirmative action policy for minorities from the respondent Corporation as a result of this complaint, the involvement of the investigating officer as an advocate for the complainant, and the determination to proceed with respect to facts more than six months prior to the filing of the complaint, I do not find that there was any abuse of process in these matters in and of themselves. If there was an abuse, moreover, I am satisfied that a full hearing before a board of inquiry will be able to remedy any resulting prejudice to the respondents.
The actions of the investigating officer do, however, interact with the question of disclosure and I will further consider the implications of this in relation to disclosure itself.
DELAY
55The second major objection to the fairness of continuing these proceedings is that a fair hearing cannot now be held because of the lapse of time between the events alleged in the complaint and my appointment. While this case sets no new record in terms of the length of time that it takes complaints initiated with the Ontario Human Rights Commission to reach a board of inquiry, I have no hesitation in saying that it took excessively long for matters to reach this stage.
56Some of the events on which the complaint is based occurred during the winter of 1985. The precipitating event occurred on May 30, 1986, although it would have been at least a few days thereafter before information came to the attention of the complainant from which he could conclude that he had been discriminated against. The complaint was filed on August 13, 1986, and notified to the respondents by letter of August 29, 1986. The investigating officer held a fact-finding conference on February 20, 1987. Her ensuing investigation was conducted largely during the period from late July through late September 1987. Although the documentary record suggests that a conciliation meeting took place on January 25, 1988, this appears to be a typographical error. The meeting was rescheduled from that date to February 9, 1988, when it took place.
57Following the officer's conclusion that the matter could not be resolved by conciliation, the initial record of the investigation prepared for the Commissioners was sent to the parties for comment on February 27, 1989. Following the receipt of responses, the final record was completed by the investigating officer on July 23, 1989, and endorsed by her supervisor either on August 10, 1989, or October 8, 1989. The latter date is uncertain because the supervisor used the numerical date "10/8/89" and there is no other evidence to indicate how this should be read. If it made any difference, I would conclude that the October date is more likely in light of the general pace at which the matter was processed. The record was further endorsed by the Commission's Director on July 30, 1990, and is stamped to indicate that it was, at least initially, placed on the Commissioners' agenda for a meeting on August 20–21, 1990. The Commissioners' decision to request a board of inquiry was communicated to the parties by letter of August 12, 1991. I was appointed as the Board on May 12, 1992.
58The initial period between the winter of 1985 and the precipitating event of May 30, 1986, was, of course, attributable to the complainant. This was presumably on the understandable basis that he did not perceive any reason to complain until after the precipitating event. After that event, he proceeded with reasonable expedition to initiate his complaint.
59Some periods of the subsequent delay are attributable to the respondents in that, from time to time, requests for information or submissions were made by the Commission and it occasionally took a few weeks before a response was received. Most [of] the time from August 13, 1986, through August 12, 1991, however, was taken up while the file was apparently sitting on the desk of someone at the Human Rights Commission awaiting further attention. Except for a total of a few months attributable to the respondents, the file spent some five years in the hands of the Commission and Commissioners, and another nine months in the administrative process of setting up a board. The only significant explanation offered for this period of time is that of the investigating officer. She testified that, because of her workload, she was unable to spend more concentrated time on the file.
60While I think it has taken this case excessively long to reach the stage of a hearing before a board of inquiry, this is not the test of whether it should now be dismissed or permanently stayed because of delay. It is apparent that boards of inquiry in Ontario have been reluctant to dismiss complaints on the basis of delay in the processing of complaints: Hyman v. Southam Murray Printing Ltd. (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.) at D/621; Gohm v. Domtar Inc. (1988), 1988 CanLII 8877 (ON HRT), 10 C.H.R.R. D/5968 (Ont. Bd.Inq.) at D/5970–D/5971; Guthro v. Westinghouse Canada Inc. (1991), 1991 CanLII 13135 (ON HRT), 15 C.H.R.R. D/388 (Ont. Bd.Inq.) at D/390–D/391; Munsch v. York Condominium Corporation (July 2, 1992), (Ont. Bd.Inq.) [unreported] at 2–3 [now reported 1992 CanLII 14246 (ON HRT), 18 C.H.R.R. D/339 at D/340].
61On the other hand, two recent court decisions, one in Saskatchewan and one in the federal jurisdiction, reviewing human rights proceedings have set aside these proceedings on the ground of delay: Kodellas v. Saskatchewan Human Rights Commission, 1989 CanLII 284 (SK CA), [1989] 5 W.W.R. 1 [10 C.H.R.R. D/6305] (Sask. C.A.); Motorways Direct Transport Ltd. v. Canadian Human Rights Commission(1991), 1991 CanLII 13186 (FC), 36 C.C.E.L. 201 [16 C.H.R.R. D/459] (F.C.T.D.). In Kodellas, the Court of Appeal allowed the proceedings to continue against a corporate respondent, while dismissing them against an individual. This assuaged the concern, common to the Ontario cases, that dismissal due to systemic delay leaves the complainant without a remedy. The reasoning in Kodellas was based on Charter rights which did not extend to the corporation. In Motorways, the Court adopted the reasoning in Kodellas as being also an embodiment of common law principles. Consequently, it stayed proceedings against a corporation on the ground of delay.
62I have a great deal of difficulty with the reasoning in Kodellas, supra, and Motorways, supra. The starting point in Kodellas appears to be the view that proceedings on a human right[s] complaint are analogous to criminal proceedings. Thus, for the purpose of s. 7 of the Charter, the Court accords a high value to protection of the procedural rights of the respondent similar to that applied to accused persons, even if s. 11 of the Charter does not directly apply. This view is carried into the application of the same reasoning on a common law basis in Motorways.
63Proceedings under the Ontario Human Rights Code are civil and remedial, not penal. The inclusion in the Code of the alternative of a prosecution under s. 44 does not convert proceedings under ss. 32–43 into quasi-criminal matters. Thus, the rationale of the decision in Kodellas, supra, and hence in Motorways, supra, is simply not applicable under the Ontario Code, if it stands up to scrutiny under the federal and Saskatchewan statutes. The correct test under the Ontario Code as to whether proceedings should be set aside on the ground of delay is that derived from the Ontario Board of Inquiry decisions cited above.
64Even though the submissions of respondents in each of the cited cases based on delay were unsuccessful in the result, it does not follow that delay can never be a ground for discontinuing human rights proceedings under the Ontario Code. The cases indicate that, while ordinarily delay is only taken into account in assessing the credibility of evidence or in fashioning the remedy, in a sufficiently serious case it may result in a dismissal of the proceedings.
65To justify dismissal, delay must result in serious prejudice to the ability of the respondent to present its case. It is necessary to examine the circumstances of this case in the light of this standard. The respondents claim such prejudice based on the inability of witnesses to recall relevant events and the death of one important witness in 1989.
66Mere fading of memory is not sufficient to constitute prejudice: Munsch v. York Condominium Corporation, supra, at 2. On the other hand, a complete failure of the memory of witnesses would seem to satisfy the test. The importance of the memory of witnesses would also depend on the nature of the case. Where events have been recorded, or the case otherwise depends heavily on documentary evidence, the memory of witnesses may be of relatively little importance. On the other hand, if the case turns on events which are not recorded, the memory of witnesses would be extremely important.
67Once a party is aware of proceedings against it, there is some obligation to take steps to preserve evidence still available at that time: Munsch v. York Condominium Corporation, supra, at 3. This would include making some reasonable attempt to record the recollections of witnesses to unrecorded events so that remaining memories can be refreshed.
68Much of the evidence relevant to the precipitating event in this case is documented, but evidence of the events which occurred during the winter of 1985 would depend heavily on the recollections of witnesses. Moreover, many of the relevant events during that period were probably not considered of much significance at the time, making it plausible that witnesses would have no memory of those events.
69On the other hand, the respondent Hancock, who would be a key witness, while claiming no memory of key events alleged by the complainant, seems to have a good memory of other related events during the same time period. This raises the possibility that, at least with respect to his evidence, the question is one of credibility, rather than inability to recall. If one does not recall an alleged event, for example, that supports a claim that the event never occurred.
70While the memory of other witnesses led during the preliminary hearing is certainly defective with respect to the relevant time period, most still have fairly good recollection. On the other hand, much of this evidence relates to dealings with the investigating officer. Because of the very time it took to process the complaint, dealing[s] with the officer are between twenty-four and thirty months more recent than the events of the winter of 1985 which will be the focus if this complaint proceeds to a hearing. This makes it difficult to know whether witnesses will have useful memories of the events in dispute.
71The respondent Corporation introduced some evidence that certain potential witness[es] have no memory of key events. It appears, however, that these witnesses were given no opportunity to refresh their memories and were not subjected to the type of probing that might serve to jog memories during a hearing. Moreover, it is not even clear whether the lack of recollection should be interpreted to mean that the events in question did not happen or were not remembered. If it is the former, these witnesses would be helpful to the respondents even at this stage.
72Some inquiry was made to determine what efforts the respondent Corporation had made to preserve evidence for itself during the investigation. The efforts appeared minimal. Perhaps the respondent Corporation had some expectation that the matter might be heard at an early stage so that it was unnecessary to record the memories of witnesses. But even preparation of the case on behalf of the respondent Corporation for an early hearing would have benefited from the recording of statements from potential witnesses. The respondents' own exposure to the investigation process surely alerted them to the fact that the Commission was taking notes. Thus, it is doubtful whether the respondent Corporation acted reasonably in this regard. Since counsel for the respondent Corporation also represented the respondent Hancock throughout much of this period, the latter might fairly be bound by the extent of these same efforts.
73In conclusion I am not satisfied that, even with the delay that has occurred in this case, delay alone has seriously prejudiced the ability of respondents to present their case. There is still reason to believe that witnesses have sufficient memories of relevant events. To the extent that memories have failed, the evidence indicates little effort by the respondents to preserve memories of potential witnesses with respect to allegations of unrecorded events involved in the complaint.
74With respect to the death of a potential witness, this is clearly the type of occurrence that could seriously prejudice a party in its ability to present its case. The person in question, Larry DeShield, was a black lawyer who dealt with the respondent Hancock in relation to some legal matters involving the respondent Corporation. DeShield had no personal knowledge of the specific events referred to in the complaint. Rather it appears that his evidence would have related to his knowledge of the respondent Corporation's hiring practices, and perhaps more generally to his experience as a member of a minority group employed by the respondent Corporation.
75In addition DeShield would have served as a character witness based on his dealings with the respondent Hancock. The evidence indicates that DeShield had only limited contact with the respondent Hancock, however, so it is doubtful that his character testimony would have been extensive.
76The evidence of DeShield would have been relevant. Moreover, if the processing of the complaint had gone forward within the sort of time frame which, in my view, was originally envisaged by the Code, it is possible that a hearing would have been held before DeShield died in 1989. Thus, delay was a factor in the loss of this evidence.
77On the other hand, I find it difficult to accept that the respondents are seriously prejudiced by the loss of this witness. The sort of evidence which he would have given is not vital, nor even directly related, to ascertaining the events that are in dispute. It is rather in the nature of background information which can surely be provided by a number of other potential witnesses. Indeed, with respect to the respondent Hancock, the record indicates that he has established a good relationship with another black employee in his own department whose character testimony would seem far more cogent than what the record suggests DeShield might have offered.
78I conclude, therefore, that the death of DeShield has not deprived the respondents of the type of key witness such as would constitute prejudice depriving them of a fair hearing at this stage. Thus, this does not provide a basis for setting aside the proceedings on the ground of delay.
The delay, like the actions of the investigating officer, does interrelate with the question of disclosure, however, and I will return to this in that context.
DISCLOSURE
79The starting point for the obligation to disclose is s. 8 of the Statutory Powers Procedure Act which provides:
Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.
The approach of counsel for the respondents to the question of disclosure, not only before me, but also during proceedings prior to my appointment, suggests that the respondents are claiming full disclosure of the Commission's case.
80While full disclosure may now be available under the Charter in penal proceedings, and civil procedure now provides for extensive discovery of an opponent's case prior to trial, discovery of this nature was never the intent of s. 8. The right to disclosure under the Statutory Powers Procedure Act is generally satisfied by information as to the substance of the allegations of improper conduct: Salamon v. Searchers Paralegal Services(1987), 1987 CanLII 8508 (ON HRT), 8 C.H.R.R. D/4162 at D/4164–D/4166 (Ont. Bd.Inq.). A respondent may be entitled to further particulars so as to enable it to identify relevant events, but this does not mean disclosure of witness statements or even the names of witnesses upon whose testimony the Commission intends to rely: Adair v. K.B. Home Insulation Ltd.(1991), 1991 CanLII 13133 (ON HRT), 15 C.H.R.R. D/331 at D/332 (Ont. Bd.Inq.).
81It now appears to be the practice of the Commission to reveal the names of witnesses shortly before the actual hearing by a board of inquiry. On the other hand, as indicated by the Frawley affidavit, it is [a] deliberate policy of the Commission not to disclose the names of witnesses prior to the appointment of a board because of the inadequacy of mechanisms available to protect witnesses from reprisals until a board is in place. Witness statements taken during the investigation are treated as confidential.
82As a result of the present motions, the respondents in this case have received far more disclosure than normal under the Commission's disclosure practice. In particular, witness statements were disclosed in full after the Commission itself sought to make selective use of these statements in support of its position that the investigating officer had appropriately reported the material before her when preparing the record for the Commissioners. This was done on a "without prejudice" basis indicating that the Commission may yet claim privilege with respect to these documents in the event of a hearing on the merits.
83Even if the Commission now successfully asserted such a privilege in further proceedings in this case, it cannot effectively deprive the respondents of the knowledge about the case that they have already gained from these documents. The respondents are in a position to benefit from this knowledge to much the same extent that they would be if they had obtained such disclosure as a matter of right.
84While I might proceed on the basis that this effective disclosure renders the rights of the respondents to disclosure in this case moot, to dispose of the case on this basis would suggest that the mechanism for parties to obtain disclosure is the sort of application which the respondents have made in this case. The complications that these applications introduced to the process demonstrate this would be anything but a desirable precedent to set. Given the "without prejudice" nature of the disclosure which occurred, I think it proper to ignore it for the purpose of determining the legal rights of the respondents with respect to disclosure. In any event, disclosure at this stage, even if better than no disclosure at all, is not a remedy for any prejudice the respondents already suffered from the fact that they did not receive disclosures at an earlier stage.
85Judged by the standard applied in cases like Salamon, supra, and Adair, supra, the information provided to the respondents by the Commission in this case prior to the hearing appears essentially adequate. The complaint itself contained the main allegations, and the record for the Commissioners by the investigating officer set out the substance of most other allegations about the conduct of the respondents relevant to this case. While there may be some allegations about which the respondents are entitled to additional specific detail, the requirements of fairness could probably be met by an order under s. 23 of the Statutory Powers Procedure Act to provide such particulars at this stage.
86Section 8 of the Statutory Powers Procedure Act, however, is not expressed in terms of the substance of the allegations against a respondent. It refers to "reasonable information of any allegations." What is reasonable depends on all the circumstances.
87It is in this regard that other factors, apart from the scope of the information provided, are relevant. In particular, I think what is reasonable must also take account of the fact that the investigating officer acted to some extent as an advocate of the complainant and the entire proceedings were excessively delayed in processing by the Commission and subsequently in the actual appointment of a board.
88In my view, the type of process contemplated by the Human Rights Code is one in which a complaint is promptly investigated and conciliated by a Commission officer. If this does not result in a relatively expeditious resolution of the complaint, I think the intent is that the complaint would be forwarded to the Commissioners who would, again promptly, determine whether the matter warranted a board of inquiry. If so, the Minister of Citizenship, who has no discretion in the matter except as to the actual selection of the membership of the board, would shortly appoint a board which is itself to commence a hearing within thirty days.
89I have deliberately refrained from suggesting any specific time frame for this process since what is appropriate would depend on a number of factors, including the complexity of the case and the degree of co-operation received from the parties. I do think, however, the expected time frame, even in a most complex case, would certainly be less than half the nearly six years which elapsed here.
90I realize that the last nine months of the delay were the responsibility of the Boards of Inquiry office over which the Commission, for reasons of fairness, has no control. While some part of this delay was due to unavailability of counsel, it appears that the file may also have been the victim of inattention within that office for periods of weeks at a time. While the Commission could not control this, it must have been obvious to the Commission that the appointment of a board was not proceeding promptly. Only the Commission had it within its control during this period to see that the respondents received further information to assist in preparing their case and to avoid any further prejudice as a result of this additional delay.
91If there is delay caused by lack of co-operation from the parties, I note that s. 33(5), if applicable, provides a way to expedite proceedings. If there is concern that the process should proceed slowly to ensure that every possibility for conciliation has been exhausted, I note that the appointment of a board does not mean an end to attempts to settle. Indeed the reality of a pending hearing is often effective in bringing the parties to agreement.
The statute does not, of course, fix a time frame so that the stretching out of the process is not contrary to law. I think it does, however, impact on what is reasonable information for the purposes of s. 8 of the Statutory Powers Procedure Act.
92The policy of the Commission to withhold the names of witnesses until the matter is before a board in order to protect witnesses from reprisals is rationally based. Although the respondent Hancock argued that the policy was paranoid, employers alleged to have violated the Code may often lack the sense of public responsibility which I accept the respondent Corporation to possess The policy would be rendered unworkable if disclosure were based on an individualized assessment of whether the respondent in a particular case could be trusted to refrain from reprisals.
93Such a policy would seem entirely fair in the context of a process that dealt with complaints in the prompt manner that I have outlined above. While it would deprive a respondent of some information important to the preparation of its case, this would only be for a temporary period. It is unlikely that any serious prejudice would result.
94On the other hand, when a respondent is left in the dark for years as to the identity of witnesses, its own opportunity to try to interview these witnesses, or other persons who may be able to provide another perspective on the same events, is hindered until memories of events may have significantly deteriorated. The Commission has the advantage of possessing witness statements prepared when memories were relatively fresh and which may be utilized to refresh these memories during the preparation of witnesses for the hearing.
95It is true that it will often be possible for the respondent to identify witnesses, or persons familiar with the same events, from the record prepared by the investigating officer for the Commissioners, in spite of the absence of names. The length of time taken by the investigation process, as illustrated in this case, may mean that significant memory deterioration will have occurred even by the time the officer's record is available. Moreover, to the extent that it is true that the respondent can identify witnesses from the investigating officer's record, it undermines the rationality of the entire policy of withholding the names of witnesses. Those who are easiest to identify from the record are likely to be those in the employ of the respondent who are the most vulnerable to reprisal.
96The fact that the investigating officer adopted a position of advocacy on behalf of the complainant raises further concerns about the fairness of the Commission's policy with respect to the disclosure of information.
Since the question of privilege or confidentiality of actual witness statements was never argued before me, I do not think I should rule upon it. It does seem obvious that disclosure of witness statements at some stage would be the highest assurance of fairness to a respondent. It would provide access to the fullest information, not only about the case against the respondent, but also of evidence known to the Commission, if any, that might assist the respondent. Whether the respondent has a right to such a high assurance of fairness is the question I decline to answer in the absence of submissions on this issue.
97Apart from the question of access to witness statements, however, bias on the part of the investigating officer raises a serious question about the reasonableness of the information provided to a respondent under the Commission's present disclosure policy. For one thing, given the Commission policy that the officer is to conduct an impartial investigation, as indicated by the Frawley affidavit, it may be reasonable for a respondent to rely on this investigation, rather than to engage in its own evidence gathering. This might justify, for example, the apparent lack of effort by the respondents to preserve evidence in this case. If so, partiality of the investigating officer indeed has prejudiced the respondents' ability to prepare their case by the time the bias was discovered.
98The main sources of information which a respondent receives under the Commission's disclosure policy are the complaint and the record prepared by the investigating officer for the Commissioners. The complaint is obviously a self-serving document and any respondent who treated it otherwise would do so at its own risk. The record prepared by the investigating officer for the Commissioners is a different matter. To the extent that the officer, whether because of partiality or not, has been selective and excluded relevant evidence, this record may be misleading. It is questionable whether such a document satisfies the requirement for reasonable information.
99Inadequacies in the record prepared for the Commissioners can prejudice the respondents in their preparation for the hearing. Given the length of time that it took this case to proceed from the disclosure of the officer's record to a hearing before a board of inquiry, it will be difficult to cure the effect of flaws in the record upon the ability of the respondents to prepare their case.
100To cite a specific instance, well into the investigation stage, approximately a year after the complaint was filed and some two and one-half years after the actual events, the officer learned that the respondent Hancock might have used the term "boys" in a racially derogatory manner when referring to the complainant. The witness statements indicate that her approach to this issue was more what one might expect from counsel for the complainant, than from an impartial investigator simply trying to get the facts. Her interpretation of the responses is similar in character.
101This appears to have been the closest thing to direct evidence of discrimination revealed by the investigation. Thus, the question of the respondent Hancock's possible use of the term "boys" would be a potentially key issue at any hearing of the matter. The way in which this was covered by the officer's report was misleading, rather than reasonable. I see a real risk that the respondents' ability to prepare their case was prejudiced as a result. It might, for example, have induced them to place undeserved emphasis on this issue, thus exaggerating its importance. While all of this might become apparent at the hearing, there is no assurance of that, given the policy of the Commission not to disclose witness statements.
102The evidence persuades me that, while the bias of the officer in preparing the record does not in itself preclude a fair hearing before me, it resulted, in the absence of other disclosure, in the respondents not receiving reasonable information of the allegations respecting its conduct. If matters had proceeded promptly, as I believe is contemplated by the legislation, even this deficiency could be cured at the board of inquiry. But the fact is that matters did not proceed promptly.
103In other words, taken separately, bias of the investigating officer, lapse of time, and restricted disclosure by the Commission would not necessarily, nor on the facts of this case, deprive the respondents of a fair hearing at the board of inquiry stage. In combination, however, these circumstances seriously prejudiced the ability of the respondents to prepare their case in a timely fashion. This violates the principle of fairness. It causes a prejudice that cannot really be cured at the board of inquiry stage since one power a board definitely lacks is that to turn back the clock.
EFFECT ON THE COMPLAINANT
104One consideration that I have neglected in this analysis is that, if I dismiss or permanently stay the complaint on this basis, the complainant is left without any determination, let alone any redress, with respect to his rights. The way in which the complaint was processed by the Commission has been as detrimental to his interests as it has been to those of the respondents. It is recognition of this that has led boards of inquiry, in the final result, to reject motions such as those of the respondents, notwithstanding relatively serious delays or problems of fairness resulting from the Commission's process.
105I think the combination of circumstances in this case carries the prejudice to the respondents beyond the point of tolerance. The only consolation I can offer to the complainant is that a decision such as this may have some effect in reforming the process of the Commission to the benefit of complainants, as well as respondents. While the Frawley affidavit indicates the Commission is already taking significant steps in the direction of such reform, there is no assurance that this reform will endure. A legal ruling demonstrating that the Commission's processes can actually defeat the objective of securing compliance with the Code should reinforce the impetus to reform.
CHARTER ISSUES
106In light of my conclusion that, in the circumstances of this case, the respondents cannot be assured of a fair hearing at the board of inquiry stage, it is unnecessary for me to rule on the respondent Hancock's Charter argument. I will simply indicate, therefore, that I do not find this argument persuasive. The weight of authority is against s. 11 of the Charter having any relevance since, in these proceedings, the respondents are not charged with an offence. Similarly there is no question of a life or liberty interest of the respondent Hancock being at stake in these proceedings for the purpose of s. 7. While the respondent Hancock testified to the personal trauma caused by these proceedings, I also doubt that the stress caused by civil proceedings of this nature violates security for the purpose of s. 7.
CONCLUSION
107The exact disposition of the proceedings in light of my conclusions needs to be addressed. While there would be no practical difference in terms of the proceedings themselves between a dismissal and some sort of a permanent stay, there is a potential legal difference in that dismissal of a complaint is one condition of the power of a board of inquiry to order costs under s. 41(4) of the Code. The respondent Hancock indicated a desire for such costs, but asked that I reserve on this question since no submissions had been made with respect thereto.
108There is a possible argument over my jurisdiction to actually dismiss a complaint without a hearing on the merits. The jurisdiction to order a permanent stay, which is procedural in nature, would seem obvious under s. 23(1) of the Statutory Powers Procedure Act.
109Since the question of my authority to order actual dismissal, as distinct from a stay, was not argued, I think the appropriate determination is that I am prepared to dismiss the complaint for the reasons set out in this decision, subject to my authority to do so at this point. I reserve jurisdiction on the question of my authority to do so. If I lack the authority to dismiss at this stage, I would order a permanent stay of these proceedings. The question of my authority only needs to be addressed in the event of an actual application for costs and can be dealt with at the same time as any such application.
110I will reserve jurisdiction for thirty days for the purpose of receiving any application for an order for costs. If either of the respondents intends to pursue this, it would seem convenient to use one of the dates previously reserved for a possible hearing to receive submissions on this question. I would suggest that, if either respondent wishes to apply, the other parties be contacted to see if agreement can be reached on such a date.