Barber v. Sears Canada Inc. (No. 2), 1993 CanLII 16505

Barber v. Sears Canada Inc. (No. 2)

1993-03-14

Ontario Board of Inquiry

Patricia Barber Complainant

v.

Sears Canada Inc. Respondent

Date of Complaint: December 6, 1988

Date of Decision: March 14, 1993

Before: Ontario Board of Inquiry, H.A. Bassford

Comm. Decision No.: 486A

Appearances by: Lauren Bates and Fiona Campbell, Counsel for the Ontario Human Rights Commission Mary Beth Currie, Counsel for the Respondent

JURISDICTION — jurisdiction to hear complaint where complainant deceased — unreasonable delay — BOARDS OF INQUIRY/TRIBUNALS — authority to hear complaint involving deceased party — EVIDENCE — death of witness — PARTIES — complainant deceased — PROCEDURE — delay as abuse of process — COMPLAINTS — limitation of action legislation applied to human rights legislation — INTERPRETATION OF STATUTES — principles of interpretation applied to human rights legislation from other statutes — HUMAN RIGHTS — nature and purpose of human rights legislation

Summary: This is a decision on preliminary motions made by Sears Canada in the matter of a complaint of discrimination based on disability filed by Patricia Barber. Ms. Barber complained that the Sears store at the Pen Centre in St. Catharines, Ontario was not accessible to her because she was a wheelchair user. Ms. Barber alleged that she could only gain access to the second floor of the store by using a freight elevator. This required someone to assist her, and about a half an hour wait. In addition, there were no accessible washrooms.

Ms. Barber's complaint was filed in 1988. In November 1992, Ms. Barber died. The respondent argues: (1) that the Board of Inquiry is without jurisdiction, given the death of the complainant; (2) that the issue is moot because of the death of the complainant; (3) that delay has made it impossible to establish the facts; and (4) that to proceed would be an abuse of process.

The Board of Inquiry finds that it has jurisdiction to proceed with the complaint. The Trustees Act permits an executor to maintain an action for injuries on behalf of a deceased person and there is no reason to stay the proceedings in these circumstances. The Board of Inquiry finds further that the complaint is not moot because of the death of the complainant. There is a public interest in the outcome of this case that does not expire with Ms. Barber. The Board of Inquiry has the capacity to make orders respecting future practices and this may affect other persons with disabilities.

The respondent argues that because of delay, and the subsequent death of the complainant, the Board of Inquiry will not be able to hear Ms. Barber's testimony and test the credibility of the complainant. The Board of Inquiry finds that the facts in this case are not hard to establish, and that Ms. Barber would have been the Ontario Human Rights Commission's witness. If the Commission feels able to proceed without Ms. Barber's testimony, it should be allowed to do so.

Finally, the respondent argues that it is an abuse of process to proceed with the complaint in light of an investigator's recommendation that the complaint not be referred to a Board of Inquiry after some renovations to the freight elevator were made. However, the Board of Inquiry finds that it is the Commission, not the investigator, who makes the decision regarding referral to a Board of Inquiry. In this case the Commission referred the complaint to a Board of Inquiry. There is no abuse of process.

The preliminary motions are dismissed.

[Ed. Note: See also (1994), 1994 CanLII 18417 (ON HRT), 22 C.H.R.R. D/415 and (1995), 1995 CanLII 18163 (ON HRT), 24 C.H.R.R. D/85 (Ont. Bd.Inq.).]

Cases Cited

Baptiste v. Napanee and Dist. Rod & Gun Club (1993), 1993 CanLII 16495 (ON HRT), 19 C.H.R.R. D/246 (Ont. Bd.Inq.): 8

Crane v. McDonnell Douglas Canada Ltd. (1993), 1993 CanLII 16506 (ON HRT), 19 C.H.R.R. D/422 (Ont. Bd.Inq.): 22

Delamare v. Inter-Mountain School Div. (1984), 1984 CanLII 5071 (MB HRC), 7 C.H.R.R. D/3147 (Man. Bd.Adj.): 26

Hyman v. Southam Murray Printing (No. 1) (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.): 20, 22, 24

Lasani v. Ontario (Ministry of Community and Social Services) (No. 1) (1993), 1993 CanLII 16497 (ON HRT), 21 C.H.R.R. D/412 (Ont. Bd.Inq.): 22, 26

Latif v. Ontario (Human Rights Comm.) (1992), 1992 CanLII 14313 (ON CTGDDC), 17 C.H.R.R. D/198 (Ont. Ct. (Gen.Div.) : 22

Ontario (Human Rights Comm.) v. Vogue Shoes (1991), 1991 CanLII 13168 (ON HRT), 14 C.H.R.R. D/425 (Ont. Bd.Inq.): 7

R. v. Cadeddu (1983), 1983 CanLII 1763 (ON CA), 146 D.L.R. (3d) 653 (Ont. C.A.): 15

R. v. Young (1984), 1984 CanLII 2145 (ON CA), 13 C.C.C. (3d) 1 (Ont. C.A.): 26

R. ex rel. Tolfree v. Clark, 1943 CanLII 3 (SCC), [1944] S.C.R. 69: 17

Shreve v. Windsor (City) (No. 2) (1993), 1993 CanLII 16462 (ON HRT), 18 C.H.R.R. D/363 (Ont. Bd.Inq.): 20

West End Construction (Ltd.) v. Ontario (Ministry of Labour) (1989), 1989 CanLII 4088 (ON CA), 70 O.R. (2d) 133, 10 C.H.R.R. D/6491 (Ont. C.A.): 5

Legislation Cited

Ontario

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

s. 9: 18

s. 32(2): 6

s. 38(1): 13

s. 39(2)(a): 6

s. 41(1)(a): 18

s. 41(1)(b): 13

Interpretation Act, R.S.O. 1990, c. I.11, s. 10: 9

1I was appointed on October 19, 1992, by the Minister of Citizenship, the Honourable Elaine Ziemba, to chair a board of inquiry pursuant to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The Board was instructed to hear the matter of the complaint made by Patricia Barber on December 6, 1988, against Sears Canada Inc. The complaint alleged discrimination in facilities on the basis of handicap. This is the second interim decision in this matter.

2Ms. Currie, counsel for the respondents, brought four preliminary issues, each of which asked that the hearing be stayed. Ms. Currie filed an "agreed statement of facts," to which Ms. Bates, counsel for the Commission, agreed. There is therefore no factual dispute to be adjudicated in these preliminary matters.

3I shall deal with each issue separately, but note several fact[s] salient to each. Ms. Patricia Barber originally filed a complaint on December 6, 1988, which was amended on July 19, 1989. She alleged that she was denied her right to equal treatment with respect to facilities, without discrimination because of handicap in that (1) she was required to use the freight elevator, which required assistance from Sears' staff, and which assistance required a half-hour wait, in order to gain access to the second floor of the Sears Canada store at Pen Centre, St. Cath[a]rines, and (2) the washrooms were not accessible to handicapped persons. Between that time and November 1991 Sears undertook renovations of the washrooms and of the freight elevator. Representatives of the Commission were aware of these renovation steps, and the two parties spoke with Mr. N.L. Benn, Manager, Field Operation, Elevating Devices Branch of the Ministry of Consumer and Commercial Relations, who

advised that the existing freight elevator at the Store could be renovated in order to be licensed to carry passengers in limited circumstances and a variance to the elevator licence could be issued.

On August 25, 1992, Sears was advised that the Commission had requested that the Minister of Citizenship appoint a board of inquiry. In the week prior to November 30, 1992, the complainant died. With these facts noted, I shall now turn to the preliminary matters in turn.

1. That the Tribunal is without Jurisdiction to Proceed Given the Death of the Complainant

Argument

4In the hearing of December 21, 1992, Ms. Campbell, counsel for the Commission, stated that the sole executor of Ms. Barber's estate, Ms. Lois Morimoto, wished to proceed with this action on behalf of the estate. Ms. Currie argued that the Trustee Act [R.S.O. 1980, c. 495] is not applicable to the Human Rights Code and that since the Code is silent on the matter of the death of a complainant, common law must apply here, which means the action cannot continue.

5For her major premise, Ms. Currie relied upon West End Construction v. Ministry of Labour (1989), 1989 CanLII 4088 (ON CA), 70 O.R. (2d) 133 [10 C.H.R.R. D/6491] (Ont. C.A.). She submitted that the Court of Appeal in its review of the application of the Limitations Act to the Human Rights Code concluded that the Human Rights Code creates its own framework and own rules for proceeding, and that framework alone governs, and not the application of other laws. Ms. Currie relied upon several sections of the Court's decision, which I here quote.

1. (p. 139) "The Supreme Court of Canada certainly puts human rights legislation into a unique category . . . ”˜Legislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary — and it is for the courts to seek out its purpose and give it effect."

2. (p. 140) "In my opinion, the Code is neither fish nor fowl for limitation purposes. It does not create any cause of action which fits within the traditional format of the Limitations Act."

3. (p. 144) "What occurs under the Code is more analogous to a civil proceeding than to a penal or criminal one, but it does not invoke the machinery of the civil process. The Judicature Act and the Courts of Justice Act, 1984 provide procedures to the litigants which are totally absent from those followed under the Code. The only procedures available to the parties as of right do not come into operation until a board of inquiry is appointed and the Statutory Powers Procedure Act comes into force."

6Ms. Currie further argued that the Code does not itself provide a provision for proceeding after the death of a complainant. Section 32(2) states that the Commission m[a]y initiate a complaint by itself or at the request of any person. But in the instant case the Commission has not initiated the complaint, but rather is seeking to have the executor carry it forward. Section 39(2)(a) states that the Commission "shall have the carriage of the complaint." But the Oxford English Dictionary defines "carriage" as management or administration. This has been inserted into the Code to ensure that the individual who alleges discrimination does not have to bear a huge cost burden, but will have the government carry the case forward. It does not, however, authorize the Commission to continue the hearing where the complainant has died.

7Ms. Currie referred to a previous case wherein the hearing was continued after the death of a complainant (Ontario Human Rights Commission v. Vogue Shoes (1991), 1991 CanLII 13168 (ON HRT), 14 C.H.R.R. D/425). That case differed from the present one, however, in that the current argument was not there considered. Further, in that case there was a transcript of the deceased complainant's testimony at an examination for discovery in a parallel wrongful dismissal action before the same parties, so there was an opportunity for the respondent's counsel to cross-examine. This is not available in the instant case.

8Ms. Bates, counsel for the Commission, replied in several particulars. First, there is precedent for proceeding under the Human Rights Code after the death of a complainant, referring to OHRC, supra, and to Baptiste v. Napanee and District Rod & Gun Club (January 29, 1993), (Ont. Bd.Inq., Omatsu) [unreported].

9Second, one should look at this matter from the point of view expressed in s. 10 of the Interpretation Act, [R.S.O. 1980, c. 219 [R.S.O. 1990, c. I.11]]:

Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

The object of the Trustee Act was to correct the fact that under the common law litigation did not survive the death of the litigants. This applies even more to human rights cases than to tort actions, because in these cases the Commission and the public are affected. In a case of wrongful dismissal, the estate could sue for back wages. But on the argument presented, if the person had filed a human rights complaint, then on death all rights would be lost. The framers of the Code could not have intended this absurdity.

10Third, as the preamble to the Code shows there are more than individual rights involved in human rights cases; there are public interests as well. This was also one of the reasons why the Commission is given carriage of complaints. The remedy requested in this case is also about making the Sears store accessible to all disabled people. This is the proper and sensible interpretation chosen by the two other boards.

11Fourth, the Limitation Act and the Trustee Act have different purposes. The one limits rights to proceed; the other expands those rights. In West End Construction, supra, the Court says (p. 139 [D/6493, para. 45719]), "The basic question that arises is: does a limitation period enacted in England in 1833 contemplate the type of statutory remedies which we now have in our present human rights legislation?" It then goes on to consider the special nature and broad purposes of the Code and considers the effect the Limitation Act would have on these (p. 145 [D/6496, paras. 45737–38]):

The inappropriateness of the Limitations Act applying at all is illustrated by the order of the board under appeal. The discrimination that gave rise to the complaints of Tabar and Lee found its roots in the respondent Scott's dislike of East Indians and his refusal on behalf of West End to permit the assignment of a tuck shop lease to a person of that race or origin.

Paragraph 1 of the order requires the two respondents to cease and desist in this unlawful discriminatory policy. Clearly it cannot be out of time, because the discrimination has been a continuing practice as witness that the Lees were awarded compensation arising from it. To give effect to the Divisional Court order, the board's order would have to be edited to delete the compensation to Tabar while acknowledging that the practice which gave rise to his compensation is still a live issue.

Accordingly, the Board is free to find that the Trustee Act does apply to the Code.

Decision

12The Limitations Act, R.S.O. 1980, c. 240 states:

45(1) The following actions shall be commenced within and not after the time respectively hereinafter mentioned . . .

(h) an action for a penalty, damages, or a sum of money given by any statute to the Crown or the party aggrieved, within two years after the cause of action arose

In West End Construction, supra, the Court found that the Code "does not create any cause of action which fits within the traditional format of the Limitations Act. This is demonstrated by the problems that counsel, the Board of Inquiry and the Divisional Court have had in attempting to bring it within an alien statutory framework" (p. 140 [D/6494, para. 45722]). In particular, this is because, " . . . the laying of a complaint is in no sense the institution of an action within the meaning of the Judicature Act" (p. 144 [D/6496, para. 45734]). The penultimate paragraph states (p. 145 [D/6496, para. 45741]):

The Limitations Act never contemplated socio-economic and pro-active legislation which permits remedies never before available to an aggrieved person and creates its own enforcement process. To repeat McIntyre J. in Simpsons-Sears, supra, the Code is legislation of "a special nature, not quite constitutional but certainly more than the ordinary". It is intended to ensure that the dignity of our citizenry is sustained and it is designed to maintain that purpose through administrative and judicial mechanisms which are quite alien to our traditional common law and statutory remedies.

Taken together this makes it clear that the Human Rights Code has created, because of its special nature and purposes, a series of mechanisms which are quite different from traditional ones, and with respect to these mechanisms lies outside of many statutory and common law remedies. But this is not to say that it should be interpreted as being whole in itself and independent of other statutes in every way. If the Code is silent with respect to a relevant particular, other statutes may apply, although the intent of those statutes must be seen as consistent with the purposes of the Code.

13In the instant case, the intent of the Trustees Act, as Ms. Bates correctly argued, is to correct a defect in the common law. The means for this is given in s. 38(1).

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 . . .

The preamble to the Code states that it seeks to extend the protection of human rights in Ontario. It would be strange if it at the same time it [sic] removed valued personal and legal rights of the sort envisaged by the Trustee Act. Further, under s. 41(1)(b) boards are allowed, upon finding that a right of a complainant has been infringed, to "direct the party to make restitution, including monetary compensation, for loss arising out of the infringement . . ." To disallow such compensation to an estate should the complainant be deceased would not be to give the broad interpretation envisioned by the Interpretation Act or by the Supreme Court, as quoted above.

Based upon this I accordingly hold that there is jurisdiction to proceed under the Trustee Act, and find that there is not reason to stay these proceedings based upon this preliminary consideration.

2. The Death of the Complainant Renders the Issue Moot

Argument

14Ms. Currie first noted (and Ms. Bates did not later dispute) that there is a lis between the complainant and the respondents. She then relied upon two cases to show that upon the death of the complainant this renders her complaint moot.

15Re Cadeddu and The Queen(1983), 1983 CanLII 1763 (ON CA), 146 D.L.R. (3d) 653 (Ont. C.A.) is a criminal case involving a revoked parole. The revocation was successful, which was then appealed by the Attorney General for Ontario. After arguments were heard, but before judgment was given, Mr. Cadeddu was killed. Although it was granted that there was significance to the case beyond the question of Mr. Cadeddu's parole, the Court declined to rule and the appeal abated. With respect to this the Court stated (p. 657),

It need hardly be said that this court, both before and during the hearing of this appeal, was fully aware of the importance of the case, not only to the Ontario Parole Board, and to all prospective parolees whose case would come before that board, but also — depending on the content of our reasons for judgement — to the National Parole Board and all prospective parolees with whom it may have to deal, or has already dealt.

The fact remains that this is not a constitutional reference, in which the advice of the court is sought by one or other of the governments. It is litigation between the Crown and one of its citizens, and the citizen is now dead. Whether his parole was validly suspended and revoked in 1982 can have no practical effect as far as he is concerned.

The Court also referred to a civil case.

In R. ex rel. Tolfree v. Clark et al., Duff C.J.C. in a passage quoted by this court in Re Collins, supra, said at 1943 CanLII 23 (SCC), [1944] S.C.R. p. 72, [1944] 1 D.L.R. p. 497:

It is one of those cases where, the state of facts to which the proceedings in the lower Courts related and upon which they were founded having ceased to exist, the sub-stratum of the litigation has disappeared. In accordance with well-settled principle, therefore, the appeal could not properly be entertained. The fact that some important question of law of public interest was or might be pertinent to the consideration of the issue directly and immediately raised by the proceedings does not affect the application of the principle.

The quotation illustrates that when the courts have considered that an appeal could have no practical effect, they have been speaking of a practical effect as between the parties, not . . . a practical effect in the application of our reasons for judgement to a multitude of other cases and situations.

The argument is that upon the death of the complainant there can be no practical effect between the parties, with the result that the dispute becomes moot, notwithstanding the general public interest served by human rights cases.

16In reply Ms. Bates argued that whereas no one else is affected by whether or not Mr. Cadeddu is in jail, others are affected in the instant case. This is a situation involving access to a facility affecting many people. She also argued that even if public policy is not considered, the right of the complainant's estate must be considered.

Decision

17In Re Cadeddu and The Queen, supra, the question was whether Cadeddu's parole was validly suspended. While the decision would affect significantly decisions in other cases the immediate decision of this case would have been directed to Cadeddu's parole. This would have no practical effect for him. In R. ex rel. Tolfree v. Clark et al., [1943 CanLII 3 (SCC), [1944] S.C.R. 69], the decision would have affected the rights of a member of the twentieth Legislative Assembly of Ontario. But because the twentieth Legislative Assembly had expired at the time of the decision, there could be no [e]ffect, even though it might have settled an important question of law.

18But in the case at issue before this Board there are other interests immediately affected by its decision. If the respondent were found to be in contravention of s. 9 of the Code the Board could, under s. 41(1)(a) direct the respondent "to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices . . ." While there may be a public interest in terms of other potential cases which could be affected by the resolution of this case (with respect to which Ms. Currie's authorities would be relevant), there is certainly a public interest affected immediately by the resolution of this case. This interest does not expire with the death of the complainant. Nor, secondly, does the interest of the complainant's estate cease with the complainant's death.

Based upon this I find that the death of Ms. Barber does not render the issue moot, and do not on these grounds stay the proceedings.

3. That the Delay from the Date the Alleged Contravention Occurred, Given the Death of the Complainant, Has Made It Impossible to Establish the Facts with Sufficient Certainty to Proceed

Argument

19Ms. Currie argued that the delay in this case, the subsequent death of Ms. Barber, and the fact that Ms. Barber's testimony is needed to establish the facts of the case, has made it unfair to proceed. Sears has not had, and now cannot have, the opportunity to test the credibility of the complainant.

20She relied upon the authority of Hyman v. Southam Murray Printing (No. 1)(1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617. In that case, the Chair, Professor McCamus, stated (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.

In addition, she referred to Shreve v. Corporation of the City of Windsor (1993), unreported (Ont. Bd.Inq.) (Kerr) [now reported 1993 CanLII 16462 (ON HRT), 18 C.H.R.R. D/363]. In this case, Mr. Kerr noted that to justify dismissal the delay must result in serious prejudice to the ability of the respondent to present its case (p. 16 [D/371, para. 65]). He stated that the death of a potential witness could clearly be the type of occurrence that could lead to such prejudice, but concluded in this instance that the information to be gained by the deceased witness was not vital (pp. 17–18 [D/372, para. 74]).

21Ms. Currie submitted that the death of the complainant in the instant case produces exactly the situation contemplated in Hyman, supra, and in Shreve, supra. If there had not been delay, then the complainant could have provided the necessary testimony and the respondent could have had an opportunity for cross-examination. But because there was delay this cannot happen.

22Ms. Bates agreed that boards of inquiry can dismiss based on delay. She cited Crane v. McDonnel Douglas Canada Ltd. (1993), (Ont. Bd.Inq., McCamus) [unreported] [now reported 1993 CanLII 16506 (ON HRT), 19 C.H.R.R. D/422]. Professor McCamus there referred to the decision of the Ontario Divisional Court in Latif v. Ontario Human Rights Commission (March 11, 1992), (Div.Ct., 488/91) [unreported] [now reported 1992 CanLII 14313 (ON CTGDDC), 17 C.H.R.R. D/198] in order to establish that the discretion to dismiss should be "sparingly exercised," and exercised "only in cases where either (a) the passage of time has made it impossible for the Board to carry out its task of ascertaining whether certain facts have occurred, or (b) the passage of time has so prejudiced the respondent that conducting the inquiry would constitute an ”˜abuse of process'." (pp. 6–7 [19 C.H.R.R. D/425, para. 12]). She agreed that the test is as stated in Hyman, supra. She also noted that delay is not undue if it results from mandatory investigation or attempts at resolution, and does not lay dormant for long periods (Lasani v. Ministry of Community and Social Services (January 27, 1993), (Ont. Bd.Inq., House) [unreported] [now reported 21 C.H.R.R. D/xxx], pp. 5–6).

23Ms. Bates argued that this case proceeded as quickly as possible, given all the circumstances. In this case, the facts are not difficult to establish. The complainant wanted unassisted access; the current elevator can only be used with assistance. The centre of the case is whether the handicapped have equal access. Ms. Barber would have been the Commission's witness, and it is their case which may be prejudiced by not having her testimony. But in any case the issues of her response to denial of equal access would go more to the nature of the remedy than to the nature of the elevator.

Decision

24During the course of the hearing of March 10, it was revealed that Ms. Barber's husband would testify that he had accompanied Ms. Barber at the time of the alleged infraction, and so he can provide direct evidence with respect to the facts. Because of this the test provided in Hyman, supra, is not be [sic] met by the death of the complainant. In any case, it is the burden of the Commission to show a prima facie case. If they believe that even with the death of the complainant they can do this, then, in the absence of very strong evidence to the contrary, it is incumbent upon me to allow them to proceed. For both of these reasons, I dismiss the motion to stay the proceedings based upon delay.

4. That to proceed in Light of the Second Case Summary Would Be an Abuse of Process

Argument

25This preliminary motion arises from the fact that Sears undertook the modifications of the freight elevator with the knowledge of the representative of the Commission. Ms. Currie argues that this was accordingly with the tacit approval of the Commission. At the conclusion of the modifications the investigating officer recommended that the respondent had made the necessary changes to accommodate the complainant. However, the Commission then requested a board of inquiry. Ms. Currie argues that given this action, the Commission should have recommended the Board's establishment in March 1991, when the renovations were initiated. If this had occurred, the Board could have proceeded and Sears would not have been severely prejudiced because of the death of the complainant.

26Ms. Bates referred to Lasani, supra, which in turn quoted from R. v. Young(1984), 1984 CanLII 2145 (ON CA), 13 C.C.C. (3d) 1 (O.C.A.), which affirms that the power to stay proceedings can be used "to prevent the abuse of a court's process through oppressive or vexatious proceedings" but cautions that it is one "of special application which can only be exercised in the clearest of cases" (p. 4 [D/xxx, para. xx]). She argued that while the office did recommend against proceeding the final decision lies with the Commissioners, who decided to call a board. She noted that this has happened in other cases, and cited Delamare v. Inter-Mountain School Division(1984), 1984 CanLII 5071 (MB HRC), 7 C.H.R.R. D/3147 (Man. Bd.Adj.), wherein the complaint was sent to a board although the investigating officer had suggested otherwise, and the decision of the Board upheld the complainant. She claims there is nothing abusive or supporting prejudice in the materials presented, so there is no abuse of process which can affect the ability of the Board to fulfil its task of deciding whether the rights of the complainant have been infringed and by whom.

Decision

27While I am somewhat puzzled by the statement of facts with respect to the attempted resolution which seemed to involve consultation over the renovations to the freight elevator, I have not seen evidence that meets the test enunciated in R. v. Young, supra. The Code is clear that the Commission does have the power to recommend a board. It does not suggest that the Commission must abide by the recommendation of its investigating officer; it may draw different conclusions from the report than does the officer. I accordingly rule that the appeal to abuse of process has not been demonstrated, and dismiss that motion.

28In sum, I have found that none of the preliminary procedural motions should result in dismissal of the complaint. The hearing will therefore reconvene in St. Cath[a]rines, as previously scheduled, on Tuesday, March 16.