Elliott v. Epp Centres Inc. (No. 1)

1993-02-02

Ontario Board of Inquiry

Elliott

Complainant

v.

Epp Centres Incorporated

Respondent

Date of Decision:

February 2, 1993

Before:

Ontario Board of Inquiry, Elizabeth Beckett

Appearances by:

Leslie Flemming, Counsel for the Complainant Elliott

Naomi Overand, Counsel for the Commission

Tom Richardson, Counsel for the Respondent Epp Centres

COMPLAINTS — unreasonable delay in proceeding with complaint — timeliness in filing complaint — PROCEDURE — delay as abuse of process — CANADIAN CHARTER OF RIGHTS AND FREEDOMS — procedural fairness in s. 7 (security of the person) — HUMAN RIGHTS — human rights legislation conflicts with another enactment — JURISDICTION — jurisdiction to hear complaint concerning parking regulations

Summary: This is a decision on preliminary issues raised by the respondent in a complaint that alleges discrimination with respect to a public service because of disability. At issue is the provision of parking spaces for disabled persons.

The respondent challenges the jurisdiction of the Board of Inquiry on several grounds. The respondent argues that the complaint falls outside the limitation period in the Code in that the alleged violation occurred more than six months before the complaint was filed. The Board of Inquiry notes, however, that the Code is discretionary, allowing the Commission to deal with a complaint that is filed after the six months limitation period if it decides that no substantial prejudice will result. This is a decision to be made by the Commission, not by the Board of Inquiry.

The Board of Inquiry also finds that it is the Commission, not the Board of Inquiry, which has the jurisdiction to decide whether a particular complaint would be better dealt with under another Act. In this case, the respondent argues that the complaint should be dealt with under the Ontario Municipal Act, not under the Human Rights Code. This, however, is not a question that goes to the jurisdiction of the Board of Inquiry. The fact that the Municipal Act may deal with parking regulation does not deprive the Board of Inquiry of its jurisdiction to hear the complaint it was appointed to hear.

The Board of Inquiry rejects the respondent's argument that since both the Municipal Act and the Planning Act deal with the matter of handicapped parking, the matter should be dealt with under those Acts and the application of the Human Rights Code may create conflict with the requirements of the those acts. The Board of Inquiry finds that if there is conflict the Human Rights Code takes precedence. The Human Rights Code is remedial legislation and therefore it is envisioned that orders made under the Code will have the effect of changing the existing order. If the society did not need to be so changed there would be no need for the Code.

Having considered these arguments the Board of Inquiry finds that it does have jurisdiction to proceed.

The respondent's second motion is to dismiss the complaint because of the delay in bringing these matters forward, arguing that the delay caused a breach of s. 7 of the Charter and constituted an abuse of process. The Board of Inquiry finds that this is not a situation analogous to Kodellas v. Saskatchewan (Human Rights Comm.) in which the respondent was alleged to have sexually harassed an employee and the Saskatchewan Court of Appeal found that the delay involved in bringing the case forward constituted a breach of the s. 7 right to security of the person because of the emotional distress caused by being accused of harassment. The Board of Inquiry finds that such mental distress is not likely to be involved in a case concerning parking. The nature of the allegation is not sufficient to bring the respondent within the life, liberty and security interests protected by the Charter.

Finally, the Board of Inquiry finds that there is no abuse of process involved here. The delay has not resulted in making a fair hearing impossible because of the unavailability of witnesses or the likelihood of their failure to remember because of the passage of time. The facts are not in dispute and are easily proven. The mere fact of delay does not establish that there is an abuse of process.

The Board of Inquiry also finds that the complaints against Harry Epp are properly before the Board and refuses to dismiss them.

The preliminary motions are dismissed. The hearing will proceed.

CASES CITED

Douglas v. Saskatchewan (Human Rights Comm.), 1989 CanLII 4657 (SK QB), [1990] 1 W.W.R. 455, 11 C.H.R.R. D/240 (Sask. Q.B.): 11

Hall v. A-1 Collision and Auto Service (No. 2) (1992), 1992 CanLII 14233 (ON HRT), 17 C.H.R.R. D/204 (Ont. Bd.Inq.): 10

Harvey v. Law Society of Newfoundland (1992), 1992 CanLII 2774 (NL SC), 88 D.L.R. (4th) 487, 2 Admin. L.R. (2d) 306 (Nfld. S.C.): 11

Hyman v. Southam Murray Printing (No. 1) (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.): 12

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.): 10

Munsch v. York Condominium Corp. No. 60 (1992), 1992 CanLII 14246 (ON HRT), 18 C.H.R.R. D/339 (Ont. Bd.Inq.): 10

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.): 12

Persad v. Sudbury Regional Police Force (No. 1) (1992), 1992 CanLII 14297 (ON HRT), 19 C.H.R.R. D/334 (Ont. Bd.Inq.): 10

LEGISLATION CITED

Canada

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, s. 11

s. 7: 9

s. 11: 8

Ontario

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

s. 34(1)(a): 2

s. 47(2): 6

Municipal Act, R.S.O. 1990, c. M.45: 2

s. 210(153): 5

Planning Act, R.S.O. 1990, c. P.13: 4

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22: 12

1During the conference call of September 18, 1992, counsel for the respondent indicated to me that there were some matters that would be argued as preliminary motions regarding the dispute before me. I indicated to all counsel that I would deal with these matters by way of written submissions and that I would make the rulings required at the beginning of the hearing into this matter. A schedule was set up for exchange of legal arguments between counsel and it was adhered to. I will now make the rulings on the issues raised by the respondent.

JURISDICTION

2The respondent challenges my jurisdiction to hold this inquiry based on three arguments. Firstly, he suggests that this matter could be dealt with under the Ontario Municipal Act [R.S.O. 1990, c. M.45], and, therefore, under s. 34(1)(a) of the Human Rights Code [R.S.O. 1990, c. H.19] discretion should be exercised to allow the matter to be heard by another body. Section 34(1)(a) reads:

Where it appears to the Commission that

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

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

Leaving aside the issue of whether this matter could or should be heard under another Act, the plain reading of this section gives the discretion to the Commission and not to the board of inquiry. It is possible that counsel may wish to argue as part of his defence that his client was not under compulsion to set aside a designated area for handicap parking because of the failure of the town of Niagara-on-the-Lake to act under the Municipal Act, but it is clear to me that this argument does not deprive me of the jurisdiction to hold hearing when the Minister has acted to appoint me to do so.

3On a similar vein, respondent makes as his third argument that under the same section of the Code at subsection (d), a limitation period is established and that the present complaint falls outside that limitation period. The subsection reads:

Where it appears to the Commission that . . . the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay, the Commission may, in its discretion, decide to not deal with the complaint.

Again leaving aside the issue of whether or not there was delay, if there was, whether it was in good faith, and if there would be substantial prejudice in allowing a hearing, I again point out that this is a matter to be dealt with by the Commission, not by a board of inquiry.

4Respondent's second argument, which I am dealing with last, is that it is the Planning Act [R.S.O. 1990, c. P.13] that gives the municipalities the jurisdiction to pass by-laws regarding parking regulation[s], both to set up regulated parking and to enforce such provisions as the municipality sees fit to provide. He argues that the requirement of handicapped parking spaces, because they are larger than regular spaces, may create conflict with existing by-laws. He goes on to argue that the regulations made under the Municipal Act shall not be deemed a breach of the zoning by-law, and there is no provision for a similar override of power in the Human Rights Code.

5If I may rephrase this argument, counsel appears to [be] saying that a municipality has the right to pass by-laws regarding parking under the jurisdiction given to them by the Planning Act. Having passed such by-laws that also may affect private businesses, certain requirements may be established for a particular number of spaces per building (for example). Under the Municipal Act, a municipality may pass parking regulations specifically with regards to handicapped parking. Because such spaces are larger, this may have the overall [e]ffect of reducing the number of parking spaces and, thereby, by complying with the Municipal Act, a merchant, for example, could find himself in non-compliance with the by-law passed under the Planning Act. This "catch 22" is dealt with in the Municipal Act by a provision in the Act under s. 210, para. 153 that, in effect, says if you have reduced the number of spaces required under the Planning Act by-law to be in compliance with the Municipal Act by-law, you shall be deemed to be in compliance with both. Here I must say that I am relying on counsel's interpretation as he did not actually [c]ite the section that creates primacy of the one Act over the other. Be that as it may, the point he makes is that there is no such provision in the Human Rights Code. This envisions a situation wherein a board may order that a parking place be provided that would then place a person in trouble with another body of government.

6It may be true that in highly bureaucratized societ[ies] such as ours, there may arise situations where it appears that the left hand does not know what the right hand is doing; however, I am not convinced that this is the case here.

In the first place, until it is established that the requirement of such a space, should it be order[ed], would in fact place the respondent in such a position [that] the argument is moot. Respondent counsel did not argue that such a requirement would have that [e]ffect; he merely agreed that it may. Secondly, it should be remembered that the Human Rights Code is remedial legislation and, therefore, it is envisioned that orders made under the Code will have the [e]ffect of changing the existing order. If the society did not need to be so changed, there would be no need for the Code. If the Code does not have the authority to institute the change that it envisions, then there would be little point in the Code being passed in the first place. This, it seems to me, was dealt with by s. 47(2) of the Code:

Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply [despite] this Act.

Therefore, if a Board orders that a handicapped parking space is required by a business in order for that business to be in compliance with Part I of the Code, it would override a municipal by-law that has the effect of requiring the business to provide parking spaces that do not allow access to the business by persons requiring the use of mechanical assistance for mobility purposes.

In light of the foregoing, I find that I do have jurisdiction to hear the matters set before me.

DELAY

7Counsel for the respondent also made a motion that I dismiss these complaints against his clients because of the delay in bringing these matters forward. Here he made his argument under two heads: (i) the Charter of Rights and Freedoms [Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11]; and (ii) delay as an abuse of process. I will deal briefly with each.

Charter

Section 11

8This section applies to persons charged with an offence and the nature of a Human Rights inquiry is civil, not criminal. The Board's decision is based on findings made on the civil standard of "balance of probabilities." The Board has no jurisdiction to punish. There is no finding of guilt; indeed there is no requirement that intent be made out to find that there was discrimination. The Board, like a civil court, may order damages be paid. Therefore, s. 11 does apply to matters arising under the Ontario Human Rights Code.

Section 7

9This section protects people in our society from being deprived of life, liberty and security of person except in accordance with natural justice. It has been used to successfully argue that undue delay in a trial process is contrary to this section.

10Four [sic] Ontario boards of inquiry recently have determined that s. 7 of the Charter does not apply to remedial proceedings under the Human Rights Code. Hall v. A-1 Collision (unreported, August 28, 1992, Dawson) [now reported 1992 CanLII 14233 (ON HRT), 17 C.H.R.R. D/204]; Persad v. Sudbury Regional Police [Force] (unreported, July 31, 1992, Friedland) [now reported 1992 CanLII 14297 (ON HRT), 19 C.H.R.R. D/334]; Munsch v. York Condominium Corporation No. 60 (unreported, July 2, 1992, Cumming and Omatsu) [now reported 1992 CanLII 14246 (ON HRT), 18 C.H.R.R. D/339].

In the Hall decision, Professor Dawson specifically looks at the Kodellas decision [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.)] on which counsel for the respondent relies heavily. She says [at p. D/209, para. 28]:

In their emphasis on the type of accusation and their de-emphasis on the penal context of a proceeding or consequence, the judges in Kodellas departed from the more established understanding that section 7 rights arise in light of either the possible consequences of a proceeding to an individual, or the nature of the proceedings. Kodellas appears to craft a third route into section 7 of the Charter which focuses on the subject matter of the allegations and "whether the kind of misconduct in question is such that i[t]s allegation would cause a normally sensitive person accused of it to suffer from the kind of distress the Court of Appeal described" such that, if the process is unreasonably prolonged, section 7 is infringed.

Mr. Kodellas was being brought before a board of inquiry because of allegations of sexual harassment. In our case, the complaint is that the respondent did not provide handicap parking. It is clear to me that, although both allegations are a breach of the Code, allegations of sexual harassment may well carry some degree of stigmatization in the community; I would be hard-pressed to be convinced that such would be the case with regard to a parking issue. In my opinion, the nature of the allegations is not sufficient to bring the respondent within the life, liberty or security interests protected by the Charter.

ABUSE OF PROCESS

11The final protest made by respondent counsel is that this matter should not proceed due to delay, because to do so would be an abuse of process. Respondent counsel cites two cases in this regard: Douglas v. Saskatchewan Human Rights Commission, 1989 CanLII 4657 (SK QB), [1990] 1 W.W.R. 455 [11 C.H.R.R. D/240] and Harvey v. Law Society of Newfoundland (unreported). In addition, Kodellas is again referred to. In all of these cases, facts were in dispute, and the delay had the potential of making a fair hearing impossible because of failure of witnesses to remember or even to be found. This is not the situation before me. The facts in this case have never been in dispute. They are very straightforward in nature and easily proven. Counsel does not argue that he will have any difficulty in presenting his case because of delay, he merely argues that there has been delay and it is not his client's fault. This is not sufficient to establish "abuse of process."

12I do not dispute that under the Statutory Powers Procedure Act [R.S.O. 1990, c. S.22] I would have the jurisdiction to dismiss a complaint for reasons of delay if I found that such a delay would create an abuse of process of this Board. In Gohm v. Domtar Inc. [1988 CanLII 8877 (ON HRT), 10 C.H.R.R. D/5968 at D/5969, para. 43192] and several other cases following it, the Boards cite with approval Hyman v. Southam Murray Printing Ltd. [1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 at D/621, para. 5619]:

[W]hile 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 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 the 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. Having been assigned, by order of the Minister . . ., a statutorily defined task of undertaking an inquiry . . . the board [of inquiry] should proceed to attempt to do so, notwithstanding the passage of considerable time, unless the passage of time has made fulfillment of its task impossible.

In this case, although there has been some considerable passage of time, it has not made my task impossible to fulfill. The facts are not in dispute, nor is there any suggestion that required witnesses are unavailable or that the passage of time has hindered their ability to give adequate testimony to make findings required by this Board.

Therefore, the hearing will go forward.

PROPER PARTIES

13Respondent counsel requests that the complaints against Harry Epp personally be dismissed. It must be assumed that Mr. Epp is the principal officer of the corporation which [is] the subject of the complaint. As such, he is properly before the Board.