Ontario Board of Inquiry
Duane Baptiste
Complainant
v.
Napanee and District Rod & Gun Club
Respondent
Before: Ontario Board of Inquiry, Maryka Omatsu
Appearances by:
Mario Baptiste, for the Complainant
Tony Griffin, Counsel for the Commission
Geoffrey Griffin, Counsel for the Respondent
ABORIGINAL PEOPLES — denial of public services by club — DISCRIMINATION — adverse effect discrimination — intention to discriminate — PARTIES — deceased complainant — PROCEDURE — delay as abuse of process — procedural fairness — COMPLAINTS — unreasonable delay in proceeding with complaint — DAMAGES — compensation for injury to dignity and self-respect and lost contest prize
Summary: The Board of Inquiry finds that the Napanee and District Rod and Gun Club (NDRGC) discriminated against Duane Baptiste with respect to a service when it denied him the third prize in a fishing derby.
In 1987 Mr. Baptiste bought a ticket for the NDRGC's Walley Fishing Derby. On May 2, 1987, he caught a fish in the Bay of Quinte which weighed in at 8.92 pounds. However, an officer of the NDGRC refused to register Mr. Baptiste's fish because he did not have a fishing licence. As a member of the Bay of Quinte Mohawk Band, Mr. Baptiste was not required to have a fishing licence to fish in the Bay of Quinte.
The Board of Inquiry finds that while the requirement that entrants in the fishing derby have fishing licences was neutral on its face, it discriminated indirectly against Mr. Baptiste because it had the effect of excluding him from the competition or requiring him to buy a licence which he did not need.
Had Mr. Baptiste's fish been accepted he would have won the third prize in the derby, an eight horsepower outbooard motor valued at $973.25 in 1987.
The Board of Inquiry also finds that it was not necessary in this case for the complainant to allege that a violation of s. 11 of the Ontario Human Rights Code occurred. Section 11 prohibits constructive discrimination. The Board of Inquiry rules that this section is an interpretive rather than a rights-granting section and need not be named specifically in a complaint in order to be invoked as an assistance to interpreting rights set out in Part I of the Code. However, the Board finds also that it is not necessary to consider s. 11 in this case, since s. 9, which prohibits discrimination in services, prohibits unintentional and indirect discrimination, which was what occurred here.
Since Mr. Baptiste was dead at the time of the hearing, the Board of Inquiry awards the estate of Mr. Baptiste $973.25 plus interest and $2,000 as compensation for the injury to self-respect which the discrimination caused to Mr. Baptiste and his family.
Cases Cited
Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281, 10 C.H.R.R. D/6347 (C.A.): 43
Bannerman v. Ontario Minor Hockey Assn. (1977), (Ont. Bd.Inq.) [unreported]: 28
Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 43, 46
Cousens v. Canadian Nurses Assn. (1981), 1981 CanLII 4331 (ON HRT), 2 C.H.R.R. D/365 (Ont. Bd.Inq.): 33
Cummings v. Ontario Minor Hockey Assn. (1977), 29 R.F.L. 259 (Ont. Bd.Inq.): 28
Hyman v. Southam Murray Printing (No. 1) (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.): 16, 22
Meissner v. 506756 Ontario Ltd. (1989), 1989 CanLII 9068 (ON HRT), 11 C.H.R.R. D/94 (Ont. Bd.Inq.): 24
Morgoch v. Ottawa (City) (No. 2) (1989), 1989 CanLII 9067 (ON HRT), 11 C.H.R.R. D/80: 47
Morin v. Noranda Inc. (1988), 1988 CanLII 8878 (ON HRT), 9 C.H.R.R. D/5245 (Ont. Bd.Inq.): 16
Munsch v. York Condominium Corp. No. 60 (1992), 1992 CanLII 14246 (ON HRT), 18 C.H.R.R. D/339 (Ont. Bd.Inq.): 16
Ontario (Human Rights Comm.) v. Vogue Shoes (1991), 1991 CanLII 13168 (ON HRT), 14 C.H.R.R. D/425 (Ont. Bd.Inq.): 13, 18
Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd. (1986), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102 (S.C.C.): 30, 38
Toronto (City) Board of Education v. Quereshi (No. 1) (1987), 1987 CanLII 8495 (ON HRT), 9 C.H.R.R. D/4527 (Ont. Bd.Inq.): 16, 22, 36
Toronto (City) Board of Education v. Quereshi (1991), 1991 CanLII 13130 (ON CTGDDC), 14 C.H.R.R. D/243 (Ont. Div.Ct.): 7, 39
Velenosi v. Dominion Management (1989), 1989 CanLII 9019 (ON HRT), 10 C.H.R.R. D/6413 (Ont. Bd.Inq.): 35
Youth Bowling Council of Ontario v. Mcleod (1988), 1988 CanLII 8873 (ON HRT), 9 C.H.R.R. D/5371 (Ont. Bd.Inq.); aff'd (1990), 1990 CanLII 6869 (ON CTGD), 14 C.H.R.R. D/120 (Ont. Div.Ct.): 28
Legislation Cited
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
Part I: 34
s. 1: 1, 7, 28, 38
s. 4(1): 38
s. 9: 1, 7, 28, 35, 38
Part II: 34
s. 11: 7
s. 11(1): 32, 34, 37
s. 39(1): 37
s. 41(1): 41
Statutory Powers Procedure Act, R.S.O. 1980, c. 484
s. 10(c): 10
s. 15(2): 10
s. 15(3): 10
s. 23(1): 21
Trustee Act, R.S.O. 1990, c. T.23, s. 38(1): 12
1. SUMMARY
1This Board of Inquiry appointed pursuant to the Ontario Human Rights Code [S.O. 1981, c. 53] ("Code") finds that Duane Baptiste's rights under ss. 1 and 8 (now 9 [R.S.O. 1990, c. H-19]) of the Code were infringed by the Napanee and District Rod and Gun Club (NDRGC). Section 1 reads:
- 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.
Section 9:
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
2Mr. Baptiste bought a ticket for the NDRGC Walleye '87 fishing derby and on May 2, 1987, he caught a fish in the Bay of Quinte off Shannonville. Mr. Baptiste took his fish to the NDRGC weigh-in area where it was logged in at 8.92 pounds; however, a NDRGC official refused to let Mr. Baptiste register his fish because he could not produce a fishing licence.
3On the facts, the Board finds that the NDRGC discriminated against Mr. Baptiste when the Club refused to let him register his fish in the Walleye 1987 fishing derby because he did not have a fishing licence. Mr. Baptiste, now deceased, was a Mohawk Indian and member of the Bay of Quinte band and as such, he did not require a fishing licence when fishing on his reserve or treaty areas.
If Mr. Baptiste had been allowed to enter the contest as he should have been permitted to do, he would have been eligible for third prize, valued in 1987 at $973.25.
4The Board orders the NDRGC to: i) pay to Nancy Baptiste, the wife of Duane Baptiste, $1,488.94 (the value of the prize plus interest) and $2,000.00 in general damages; ii) write a letter of apology to Mrs. Baptiste; and iii) the terms of this order to be complied with by the respondent within sixty days of the date of this order.
2. INTRODUCTION
5On April 7, 1988, the complainant filed with the Ontario Human Rights Commission ("Commission") this complaint against the NDRGC, alleging discrimination in his right to services, goods and facilities on the basis of race, ancestry and place of origin, contrary to ss. 1 and 9 of the Code (Exhibit 2). On January 13, 1989, the Commission conducted a fact finding conference attended by all parties. On October 8, 1990, the complainant died (Exhibit 5, tab 6), having named his wife, Nancy Rosalind Baptiste, as executrix and trustee upon his death (Exhibit 5, tab 7). On June 23, 1992, I was appointed by the Minister of Citizenship to conduct an inquiry into the complaint (Exhibit 1).
6The hearing was commenced by conference call on July 2, 1992, to set a date for the hearing of evidence. However, as the complainant's wife and executrix, Nancy Baptiste, was not on the call, the matter was put over to the following day. On July 3, 1992, the Commission and respondent counsel and I agreed in the absence of the complainant's executrix that the hearing would commence in Kingston on October 27,1992. Subsequently, the Board of Inquiry office was notified that Nancy Baptiste was herself very ill. On July 5, 1992, Nancy Baptiste advised me in writing that she was assigning to her nephew, Mario Baptiste, the continuation of the complaint (Exhibit 3). This was acceptable to all parties.
7On October 27, 1992, the presentation of evidence and argument was heard in Kingston, Ontario. On December 1, 1992, I advised the parties by letter that I had identified an area that had not been addressed during the course of the hearing. I suggested that counsel file submissions with the Board pursuant to the following schedule — December 15, 1992 (Commission); January 8, 1993 (respondent) and January 20, 1993, reply, in response to the following questions:
If the facts, as agreed upon in the joint statement of fact read into the record, disclose discrimination, is the discrimination properly characterized as indirect discrimination under sections 1 and 9 of the Code?
If the agreed facts disclose constructive discrimination is it necessary that a finding of such discrimination be made under s. 11 of the Code? If so, is it necessary that the complaint be amended to specifically rely on s. 11?
In considering these questions, I asked the parties to consider the case of Toronto (City) Board of Education v. Quereshi(1991), 1991 CanLII 13130 (ON CTGDDC), 14 C.H.R.R. D/243 (a decision of the Ont. Div.Ct., on appeal to the Ont. C.A.) and to bring to my attention any other relevant decisions on point.
3. PRELIMINARY MATTERS
i) Parties to the Complaint
8At the commencement of the oral hearing, counsel for the Commission filed a letter dated March 19, 1992, from the Chief Commissioner of the Ontario Human Rights Commission to Robert Clapp, one of the two named respondents, advising him that he was no longer named in the complaint (Exhibit 4). This was unopposed by the respondent, NDRGC, and acceptable to the Board.
Neither Commission nor respondent counsel could advise the Board why the Ministry of Natural Resources (MNR) had not been added as a party to the complaint (see facts Nos. 9—11 for the discussion on this issue).
ii) Preliminary Motions
9Counsel for the NDRGC raised the following objections to the Board proceeding with the hearing of this complaint: a) that there was real prejudice to the respondent due to the death of the complainant in that the NDRGC had had no opportunity to hear the complainant's evidence under oath nor to cross-examine him; b) that this prejudice was further compounded by the five-year delay since the event's occurrence and the commencement of the hearing, and that the respondent had not been the cause of the delay.
a) Prejudice
10As regards the first matter, respondent counsel relied on s. 10(c) and ss. 15(2) [and] (3) of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484, as amended. Section 10(c) reads:
10(c) A party to the proceedings may at a hearing, conduct cross-examinations of witnesses at a hearing reasonably required for a full and fair disclosure of the facts in relation to which they have given evidence.
Section 15(2):
15(2) Nothing is admissible in evidence at a hearing,
(a) that would be inadmissible in a court by reasons of any privilege under the law of evidence; or
(b) that is inadmissible by the statute under which the proceedings arise or any other statute.
Section 15(3):
15(3) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceedings.
11NDRGC counsel argued that without the complainant, certain facts could not be ascertained, that the complainant had made at least one error in his complaint (in naming Robert Clapp) and that there was the possibility that he could have made other mistakes. Counsel for the respondent stated that although both he and the respondent attended the Commission's fact finding conference ("FFC") on January 13, 1989, he was advised by Commission staff not to be adversarial and not to cross-examine parties. The FFC notice stated that: "This is an informal meeting. It is not a hearing and statements are not under oath. However, information gathered may be used in the event of a subsequent hearing" (Exhibit 6). During the conference, no oaths were administered and no cross-examination of the parties took place. The respondent added that the NDRGC suffered real prejudice on account of the Commission's tardiness, such that the complainant died before the complaint went to a hearing, and the NDRGC lost its right to cross-examine the complainant under oath.
12Commission counsel responded that the death of the complainant was not a crucial factor, given that the material facts could be proven and the estate was legally entitled to pursue the case after his death. Section 38(1) of the Trustee Act, R.S.O. 1990, c. T.23 was referred to. Section 38(1) states:
38(1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased but if death results from such injuries no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of "the Family Law Act."
13Commission counsel relied on the decision in Vogue Shoes in replying to the respondent's prejudice argument (Ontario Human Rights Comm. v. Vogue Shoes (1991), 1991 CanLII 13168 (ON HRT), 14 C.H.R.R. D/425). In that case, the complainant, Ms. Maddox, alleged that she had been dismissed by her employer because she was overweight and that this was discrimination on the basis of physical handicap. As in this matter, the complainant died before the issues were put before a board of inquiry. However, in Vogue Shoes, the respondents had had the opportunity to cross-examine the complainant at an examination for discovery in a wrongful dismissal action and the Board of Inquiry, chaired by Professor Pilkington, found (at p. D/429 [para. 22]) that the parties and factual questions in issue before her were "substantially the same as the issues in the wrongful dismissal action."
14In refusing to dismiss the Ms. Maddox complaint, the Board also held that it had not lost jurisdiction due to the complainant's death because of the public interest in ensuring that rights under the Code are enforced. On this point, Professor Pilkington wrote (p. D/429 [para. 19]):
A complaint pursuant to the Human Rights Code serves not only the private interests of individuals in being free from unlawful discrimination, but also the public interest.
Neither counsel were able to advise the Board of another case where a complainant had died before the commencement of the hearing except for the Vogue Shoes complaint.
b) Delay
15On the second point, counsel for the NDRGC stated that on behalf of the respondent, he had filed his evidence with the Commission in a timely manner and had "not dragged his feet." He argued that the Commission had a duty to act fairly and that as the cause of the delay, it was unfair that the respondent suffer the consequences of the Commission's inaction.
16In reply, Commission counsel relied on the Hyman v. Southam Murray Printing Ltd. Board of Inquiry decision ((1981), 3 C.H.R.R. [D/617 at] D/621 [para. 5619]), in which Professor McCamus held that:
[a] board of inquiry should proceed to attempt to do so, [i.e., conduct the hearing] notwithstanding the passage of considerable time, unless the passage of time has made fulfillment of its task impossible.
As well, Commission counsel stated that the test applied by subsequent boards of inquiry has been that an adjudicator may dismiss a complaint because of delay at the outset of a hearing if:
i) the delay has made it impossible for the inquiry into the complaint to proceed; or
ii) the delay has so prejudiced a party in its ability to present evidence that to continue would constitute an abuse of process.
Commission counsel referred to the following decisions in support of its position: Quereshi v. Board of Education for the City of Toronto (1987), 1987 CanLII 8495 (ON HRT), 9 C.H.R.R. D/4527 (Ont. Bd.Inq.); Morin v. Noranda Inc.(1988), 1988 CanLII 8878 (ON HRT), 9 C.H.R.R. D/5245 (Ont. Bd.Inq.); Munsch v. York Condominium Corporation No. 60 (July 2, 1992, unreported Ont. Bd.Inq. decision [now reported 1992 CanLII 14246 (ON HRT), 18 C.H.R.R. D/339]).
iii) Decision on the Motions
17At the completion of argument, I advised counsel that I would reserve on these motions and that my rulings would be incorporated in my final written decision.
a) Prejudice
18I find that the complainant's death does not result in such significant prejudice to the respondent that this complaint should be dismissed on this procedural point. As was pointed out in the decision in Vogue Shoes, supra, at D/429 para. [19], it is in the public interest that the matter be heard. Professor Pilkington wrote at p. D/428 [para. 18]:
No doubt the death of a key witness may cause prejudice, particularly to the party who intended to call the witness.
19Clearly the estate of the complainant is most significantly disadvantaged by having to prove its case without the evidence-in-chief of the deceased complainant. Nevertheless, the Commission, which has the legal requirement to establish a prima facie case of discrimination, was prepared to prove the allegations through other evidence, prior to the parties having entered onto the record an agreed statement of facts.
20Given that the parties engaged in a fact finding session on January 13, 1989, the respondent's prejudice lies primarily in its inability to cross-examine the complainant as to the particulars of the complainant's qualifications for the prize — that is, where, how, when the fish was caught. However, at best, the disadvantage goes to remedy. It affects the question of whether the complainant would have qualified for a prize and not to the question of whether or not discrimination had occurred.
b) Delay
21A board of inquiry's statutory authority to dismiss a complaint on the basis of delay is set out in s. 23(1) of the Statutory Powers Procedure Act ("SPPA") which states that:
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.
22Although s. 23(1) of the SPPA provides a tribunal with the jurisdiction to dismiss a complaint for reason of delay, the delay would have to be of such a nature as to constitute an abuse of its processes (see Quereshi v. Central High School of Commerce and the Board of Education for the City of Toronto, supra, at D/4529). The approach to the exercise of this discretion is set forth by Professor McCamus in Hyman v. Southam Murray Printing, supra, at D/621 [para. 5619]:
My own view is that while unreasonable delay might be a factor to be taken into account in refusing or fashioning a remedy . . . or in weighing the persuasive force or credibility of testimony or other evidence, delay in initiating or processing a complaint should not be considered a basis for dismissing the complaint at the outset of the proceedings before a board of inquiry unless it has given rise to a situation in which the board of inquiry is of the view that the facts relating to the incident in question cannot be established with sufficient certainty to constitute the basis of a determination that a contravention of the Code has occurred.
23Professor McCamus pointed out that adjudicators have required the party claiming unreasonable delay to prove some specific prejudice resulting from the delay. In the case before me, the respondent did not establish that any significant prejudice had resulted from the delay which did occur, except for the inability to cross-examine the complainant. The respondent did not demonstrate that an abuse of process would result by the holding of this Board of Inquiry.
24Needless to say, I am very concerned that a period of five years has transpired before the hearing of this complaint; however, neither party was the cause of the delay and the respondent did not disclose an over-riding prejudice to himself that would outweigh the prejudice to the complainant's estate should this complaint be dismissed (see Meissner v. 506756 Ontario Ltd. (No. 1)(1989), 1989 CanLII 9068 (ON HRT), 11 C.H.R.R. D/94 (Ont. Bd.Inq.).
4. FACTS
25Following argument on the preliminary matters, counsel were granted a recess to finalize an agreed statement of facts. After the break, counsel for the Commission read the following agreed statement into the record.
The Complainant, Duane Baptiste was a member of the Mohawk Bay of the Quinte Band.
The Complainant entered the NDRGC Walleye 1987 fishing derby.
On May 2, 1987, the Complainant was fishing in the Bay of Quinte off Shannonville and sometime between 9 a.m. and 1:30 p.m., he caught a fish.
The Complainant took his fish to the official NDRGC weigh-in area to register and weigh-in his fish.
The Complainant's fish was weighed-in at 8.92 pounds.
The two steps to enter a fish were: i) have the fish weighed and ii) complete an entry form.
The Complainant was asked by Mr. Welsman, the chief judge of the contest, for his fishing licence. (Mr. Welsman had been improperly identified by the Complainant as Robert Clapp.) The Complainant said that he had no licence and presented his band card instead.
Mr. Welsman informed the Complainant that the law required that he possess a sport fishing licence. The Complainant replied that as a Mohawk he did not require a licence. As there was an impasse, the Complainant took his fish and left.
Before May 2, 1987, representatives of the NDRGC got advice from the Ministry of Natural Resources (MNR) as to whether or not band members needed fishing licences to enter the derby. They were told by MNR, that band members did.
The advice that NDRGC received from MNR was incorrect.
The correct advice should have been that a band member of the Mohawk Bay of Quinte band could fish in the Bay of Quinte without a licence. (On this point, Chief Hill representing the Mohawk Bay of Quinte Band, agreed to limiting the geographical fishing area of his band to the Bay of Quinte, only for the purposes of this hearing.)
The weight of the Complainant's fish, 8.92 pounds was sufficient that if the NDRGC had not been given the wrong advice by MNR, the Complainant would have won the third prize.
The third prize was an 8 horsepower outboard motor, which was valued in 1987, at $973.25.
26The agreed statement was supplemented by material filed by the Commission (Exhibit 5). The Commission's exhibit book, the contents of which were not contradicted by the respondent, contained the following additional information: 1) the complainant's band card No. C 37789 with his picture and signature (tab 3), and 2) the complainant's entry ticket for the Walleye '87 Fishing Derby. The ticket number 4822 is signed by a "R.E. Welsman" who wrote: "Entered 8.92 lb. Without angling licence. 1:42 pm. Sat." (tab 4).
In addition, filed as Exhibit 7 was the operative MNR fishing regulation. The regulation stated that: "A Resident of Ontario will not require a licence if he or she is: c) a Native Canadian fishing on his or her reserve or treaty area. ("Indian" means Indian as defined under the Indian Act [Canada])."
I accept these facts as agreed to by the parties and read into the record of these proceedings.
5. LEGAL ARGUMENT
27The complaint alleged discrimination on the basis of race, ancestry and place of origin in the provision of services, goods and facilities contrary to ss. 1 and 9 of the Code as amended.
i) Services
28The respondent argued that entering a fishing derby was not a right covered by ss. 1 and/or 9 of the Code. I do not accept this argument. Boards of inquiry in several cases have held that "services" include organized competitions and I find that the NDRGC's fishing derby falls under ss. 1 and 9 of the Code. I refer to: Cummings v. Ontario Minor Hockey Assn. (1977), 29 R.F.L. 259 (Ont. Bd.Inq.); Bannerman v. Ontario Minor Hockey Assn. (1977) unreported (Ont. Bd.Inq.); Mcleod v. Youth Bowling Council of Ontario (1988), 1988 CanLII 8873 (ON HRT), 9 C.H.R.R. D/5371 (Ont. Bd.Inq.); aff'd (1990), 1990 CanLII 6869 (ON CTGD), 14 C.H.R.R. D/120 (Ont. Div.Ct.).
ii) Intent
29The respondent argued that the NDRGC lacked the intent to discriminate against the complainant and that it had made "an officially induced error" in relying on MNR's misinformation that Indians were required to have fishing permits.
30It has long been established in human rights jurisprudence that it is not necessary to prove intent to discriminate to establish that discrimination has occurred. In O'Malley v. Simpsons-Sears Ltd. (1986), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102, Mr. Justice McIntyre, for a unanimous Supreme Court of Canada, declared at D/3106 [para. 24768]:
[W]e are dealing here with consequences of conduct rather than with punishment for misbehaviour. In other words, we are considering what are essentially civil remedies. The proof of intent, a necessary requirement in our approach to criminal and punitive legislation, should not be a governing factor in construing human rights legislation aimed at the elimination of discrimination. It is my view that the courts below were in error in finding an intent to discriminate to be a necessary element of proof.
iii) Indirect (s. 9) v. Constructive (s. 11) discrimination
31In the present case, the complainant was disqualified from the fishing derby, not directly and intentionally because of his race, ancestry or place of origin, but because he did not have a fishing licence. On its face, the NDRGC's requirement that fish be caught in a "legal manner" (Exhibit 5, tab 5, rule 7d) is neutral. However, the NDRGC's interpretation of this rule was to require that members of the Bay of Quinte band who entered the competition possessed a fishing licence. This interpretation had the effect that the complainant, who was not otherwise required to have a fishing licence to fish in the Bay of Quinte, was either excluded from the competition or required to purchase a licence that he did not need. The respondent's rule although neutral on its face was implemented in such a way as to create an adverse impact not only on the respondent personally, but on other members of the Bay of Quinte band.
32Query: Was the respondent's conduct an infringement of the complainant's rights to equal treatment because of his ancestry contrary to ss. 1 and 9?
If there is no finding of indirect discrimination on the basis of ancestry, does this Board of Inquiry have the jurisdiction to read in s. 11(1), especially given that s. 11(1) of the Code was not pleaded? I invited submissions from counsel in response to this question.
33Commission counsel, in his December 15, 1992, written submissions to me, wrote that the "complaint form is not a pleading, nor is it evidence" (p. 6). In Cousens v. Canadian Nurses Assn.(1981), 1981 CanLII 4331 (ON HRT), 2 C.H.R.R. D/365, Professor Ratushny considered allowing the addition of grounds to a complaint at the outset of the hearing. In allowing the amendment and an adjournment for respondents' counsel, if required, Professor Ratushny wrote [at p. D/365, para. 3255]:
The written complaint is not, therefore, in the nature of an information or indictment in a criminal case. Rather it serves as general notice to a party in an administrative hearing.
34Part I of the Code sets out the rights that are protected under this Act. Part II, by contrast, does not create any rights. Section 11(1) is found in Part II of the Code in the "Interpretation and Application" section. The wording of s. 11(1) explicitly clarifies rights under Part I of the Code. Section 11(1) says:
11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in s. 17, that to discriminate because of such ground is not an infringement of a right.
35Commission counsel argued that the discrimination alleged and proven was contrary to s. 9, i.e., indirect discrimination and that it was unnecessary to specifically cite s. 11(1), i.e., constructive discrimination. In that regard, he referred me to a decision of Professor Hubbard in Velenosi v. Dominion Management(1989), 1989 CanLII 9019 (ON HRT), 10 C.H.R.R. D/6413. At p. D/6415 [para. 45319], Professor Hubbard wrote:
Thus, if a board of inquiry, after hearing and considering the evidence and submissions of the parties, were to conclude that there had been constructive discrimination, there can be no doubt that its authority to find that the complainant's right under the Code had been infringed and its right to make an order accordingly, is not impaired by the absence of any reference to s. 10 [now 11] in the complaint.
(The Divisional Court over-turned the Board of Inquiry decision in Velenosi, but on other grounds in September 1991 [CHRR Doc. 91-098].)
36Several months earlier, in May 1991, the Divisional Court reversed a finding of discrimination made by another Board of Inquiry in Toronto (City) Board of Education v. Quereshi, supra (this decision is currently under appeal to the Ontario Court of Appeal). In over-turning the Board of Inquiry decision, the Divisional Court determined, in part, that as s. 11(1) of the Code had not been pleaded, the respondent was caught unawares. I agree with Commission counsel in his written submissions to me, that the decision in Toronto (City) Board of Education v. Quereshi had to do primarily with the lack of notice to the respondent (p. 9 of Commission submission, December 15, 1992). I find, however, that in this case, the respondent was aware both of the facts and of the constructive nature of the discrimination alleged and as set out in the agreed statement of facts (Toronto (City) Board of Education, distinguished).
37I am also mindful that as Chair of this Board pursuant to s. 39(1) of the Code, it is my statutory duty "to determine whether a right of the complainant under this Act has been infringed." Consequently, it is my opinion for all the above reasons, that if I were unable to find a contravention of the Code under ss. 1 and 9, it would not have been fatal to the complainant that s. 11(1) had not previously been raised and that I could have considered the interpretative guidance provided by s. 11(1) in making my decision.
38However, I find that it is unnecessary for me to consider s. 11(1). I am satisfied on the facts that the respondent discriminated against the complainant unintentionally and indirectly because of his ancestry. I do not find it necessary that this complaint include an allegation of a s. 11(1) infringement, as s. 9 clearly prohibits unintentional adverse effect discrimination. In this regard, I rely on the decision of the Supreme Court of Canada in O'Malley, supra. Mr. Justice McIntyre, for a unanimous Court, wrote at p. D/3106 [para. 24772]:
For essentially the same reasons that led to the conclusion that an intent to discriminate was not required as an element of discrimination contravening the Code, I am of the opinion that this Court may consider adverse effect discrimination as described in these reasons a contradiction of the terms of the Code. An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply.
(Section 4(1) prohibits discrimination in employment and is similar to s. 1 which prohibits discrimination in services.)
39In considering this question, I also relied on the 1991 decision of the Ontario Divisional Court in Toronto (City) Board of Education, supra, which also dealt with s. 4(1) of the Code. In the Toronto (City) Board of Education decision, Mr. Justice O'Leary for the majority, wrote at p. D/245 [para. 4]:
I am fully aware that s. 4(1) of the Human Rights Code, 1981, S.O. 1981, c. 53 can give rise to a systemic or adverse effect discrimination allegation as well as an allegation of intentional or direct discrimination.
Thus I find that the respondent's rights under ss. 1 and 9 have been infringed.
6. CONCLUSION
40I thus conclude that it has been established that the complainant was discriminated against because of his race, ancestry and place of origin by the respondent in the provision of goods, services and facilities contrary to the Ontario Human Rights Code.
7. REMEDY
41The remedial provisions of the Code applicable to the present case are set out in s. 41(1):
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 s. 9 by a party to the proceeding, the board may, by order,
(a) direct the party to do anything that, in the opinion of the board, that party ought to do to achieve compliance with this Act, both in respect of the complainant and in respect of future practices; and
(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.
i) Special Damages
42The Commission seeks special damages in the amount of $927.25 [sic], the value of the third prize outboard motor plus interest at 10 percent from the date of the incident (May 2, 1987) until the date of the hearing (October 27, 1992).
43In awarding damages, boards of inquiry have been guided by the following principles: i) the damages awarded should "restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred (Re Piazza and Airport Taxicab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281 at 284, 10 C.H.R.R. D/6347 at D/6348, para. 45017 (C.A.)); and ii) the enforcement of the broader social policy objectives of the Code should be addressed in the award for damages (Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at D/2196).
44The respondent's counsel made the following arguments: that the NDRGC relied on MNR's misinformation, that they now comply with the MNR's fishing regulations, and that to put the complainant in the position that he would have been in "requires simply that he be awarded the 1987 outboard motor."
45Taking into consideration the principles outlined above for awarding damages, I calculate the special damages to have been $973.25 and interest at 10 percent from April 7, 1988, the date of the filing of the complaint, until October 27, 1992, the date of the commencement of this hearing. Although sympathetic to the respondent's reliance on misinformation provided by an MNR employee, the respondent did not make a motion to have the MNR added as a party to the complaint. Moreover, since the fact finding conference of January 13, 1989, the respondent knew that it had violated the MNR Fishing Regulation. During the intervening three and one-half years, the respondent had ample occasion to have resolved the matter, and, more importantly, to have made a settlement with the complainant before his death in 1990.
ii) General Damages
46The Commission, relying on Cameron v. Nel-Gor Castle Nursing Home, supra, seeks general damages in the range of $1,500 to $2,500 for injury to dignity and the loss of the right to freedom from discrimination.
The respondent submitted that this was a case for general damages in the range of $250 to $500 because the act of discrimination was not willful or reckless.
47The measure of general damages requires consideration of two factors: the effect of the discrimination upon the complainant, and whether the discrimination was willful or reckless: Morgoch v. Ottawa (City) (No. 2)(1989), 1989 CanLII 9067 (ON HRT), 11 C.H.R.R. D/80.
Without the testimony of the complainant, it is difficult to establish the effect of the NDRGC's actions on the complainant. However, his nephew, in a closing statement to the Board, advised that the family's humiliation continued after his uncle's death.
There is no evidence before me to find that the NDRGC acted willfully or recklessly and, after having weighed carefully the special circumstances of this case, I would assess the complainant's general damages in the amount of $2,000 for loss of the right of freedom from discrimination and resulting humiliation.
8. ORDER
48For the reasons given, it is hereby ordered that:
i) The respondent make restitution to the complainant's estate in the amount of $3,488.94. (This includes special damages of $1,488.94 ($973.25 plus $515.69 interest) plus general damages of $2,000.00.)
ii) The respondent write a letter of apology to the complainant's wife.
iii) The above terms are to be complied with by the respondent within sixty days of the date of this order.