Carere v. Family & Children's Services of Guelph and Wellington County (No. 2), 1993 CanLII 16512

Carere v. Family & Children's Services of Guelph and Wellington County (No. 2)

1993-03-04

Ontario Board of Inquiry

Jane Carere Complainant

v.

Family & Children's Services of Guelph and Wellington County, J. Alex Macrae, James Morgan, Dan Sibley and Ranj Feduc Respondents

Date of Complaint: July 15, 1985, and March 26, 1987

Date of Decision: March 4, 1993

Before: Ontario Board of Inquiry, Morley R. Gorsky

Appearances by: Jane Carere, on her own behalf Geri Sanson, Counsel for the Commission Carolyn Kay-Aggio, Counsel for the Respondents

PROCEDURE — hearings held in camera — publication ban until decision on complaint rendered — nature of notice to the news media — PUBLIC INTEREST — protection of the reputation of private charitable organization for the public good

Summary: This is a second preliminary decision regarding publicity in a case alleging sexual harassment. In a prior decision the Board of Inquiry refused the respondents request to hold the hearing in camera but agreed to a publicity ban until the Board renders its decision.

The Board of Inquiry approves a notice prepared by the Ontario Human Rights Commission which gives the time and place where the hearing will be held, a summary statement of the allegations, and a statement informing the public that publicity is banned until such time as the Board's decision is issued.

Cases Cited

Naugler v. New Brunswick (Liquor Corp.) (1976), (N.B. Bd.Inq.) [unreported]: 16

Legislation Cited

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

s. 2(b): 6

Ontario

Human Rights Code, 1981, S.O. 1981, c. 53: 3

Authorities Cited

Aggarwal, Arjun P., Sexual Harassment in the Workplace (Toronto: Butterworths, 1987): 25

FURTHER INTERIM DECISION

1An interim decision was made by the Board on August 17, 1992, that dealt with counsel for the respondent's application for a change of venue and a publicity ban. Following the release of the Board's order, counsel for the Commission made a request to the Board, in a letter dated September 25, 1992:

(i) permitting the Commission to provide notice in the attached form to the media, and;

(ii) directing the scope of the limit on publication to ensure that the public may receive similar notice via the media.

2The portion of the Board's order with respect to which counsel for the Commission sought direction is found at pp. 10–11 [sic] [D/243, para. 21]:

I therefore order that there be a publicity ban barring the news media from reporting on the proceedings until the release of the Board's decision. This decision is not intended to prevent the Commission from notifying the news media that a Board of Inquiry has been appointed, the time and place of the hearing, and the nature of the complaint.

Arising out of this statement, Commission counsel requested the following directions:

(i) What is the "nature" of the complaint that the Commission is entitled to communicate to the news media? and;

(ii) Does the scope of the order prohibit the news media from reporting the time and place of the hearing as well as the nature of the complaint to the general public?

ARGUMENTS SUBMITTED BY COUNSEL FOR THE COMMISSION

31. Counsel submitted that the

"nature" of the complaint should mean that which the Commission generally provides to the media in the context of all Human Rights proceedings: The Commission's practice is to provide the names of the parties, the grounds of the Code alleged to have been infringed and a brief summary of the allegations of the complaint. This practice is consistent with the Naugler and Morgan decisions referred to by the Board at p. 12 [D/243, para. 21] of the interim decision.

42. In dealing with the second issue, it was submitted:

. . . that the media must be able to convey to the public at large the nature of the complaints as described above, as well as the time and place of the proceedings. Such an interpretation of the order is required to give effect to the Board's order that the proceedings be open to the pubic to ensure fairness of process to the complainant and respondent alike. In addition, the Board should interpret its order in a manner consistent with freedom of the press as guaranteed by the Charter.

If the news media is not entitled to provide notice to the public of the proceeding, the public will not know that a hearing is to take place. Similarly, should the Board limit the nature of the information available generally by way of notice of human rights proceedings, the public will be prevented from making an informed decision as to whether an issue is of such import that it requires participation by the individual or community who has an interest in the inquiry . . . Further, lack of sufficient notice may prevent persons from coming forward who may have relevant evidence on behalf of the complainant or the respondents. Should the news media and the public have insufficient information about the proceeding, the respondents will have, in effect, achieved that which they were unable to achieve through their request for an in camera hearing. This result would be especially problematic for Jane Carere whose concerns for a full public inquiry were expressed on the original motion and could cause unfairness to Ms. Carere if the result of the order indirectly achieves an in camera hearing . . . [I]f the media is unable to provide its usual notice of this proceeding, few media, except those who have received direct notice from the Commission, will be aware of the proceeding to be able to report on the proceeding at all.

53. Counsel also submitted that:

. . . those members of the public who wish to express their views of the proceeding will be effectively stopped from doing so if they are unaware of the time, place and nature of the proceeding. The ability to report is completely reliant on the ability to receive necessary information through generally publicly available means. Thus a prohibition on the provision of the appropriate notice of proceedings via the news media would greatly inhibit the ability of the media to accurately and fully report on the proceedings once the Board's decision has been rendered. It would also limit the ability of individual members of the public to express views on a process that was unknown to them, even though such a process was "open to the public."

64. Counsel added that:

Section 2(b) of the Charter (freedom of the press) was not expressly raised or dealt with by the respondents in their initial request for a limit on publicity of the proceedings. It is not the Commission's intention to relitigate the Board's initial decision. However, the Commission wishes to draw to the Board's attention the Supreme Court of Canada decision in Regina v. Canadian Newspapers Co. Ltd. (1988), 1988 CanLII 52 (SCC), 52 D.L.R. (4th) 690, so that the Board may consider the effect of this decision in determining the content of the Board's initial order as it relates to freedom of the press guarantees.

75. The notice which counsel for the Commission wished me to authorize for release is as follows:

For Immediate Release

Further Information Alan Shefman, Director Communications and Education (416) 314-4634

Draft

SCHEDULE OF HUMAN RIGHTS HEARING

Carere v. Family & Children's Services of Guelph and Wellington County and J. Alex Macrae and James Morgan and Dan Sibley and Ranj Feduck [sic]

DATE:

TIME:

LOCATION:

Jane Carere alleges that she has been subjected to sexual harassment and to sexual solicitation by persons in a position to grant her benefit or advancement in the organization. She claims that she was subject to acts of reprisal after she rejected the advances of one of her superiors and also after filing a human rights complaint. She also alleges that she was denied equal treatment in employment because of her gender.

(Note to editors: Information contained in this advisory is correct at the time of release. For confirmation, please call the Communications and Education Unit of the Ontario Human Rights Commission at 416-314-4634).

ARGUMENTS SUBMITTED BY COUNSEL FOR THE RESPONDENTS

8Counsel for the respondents made a number of submissions in response to those contained in the letter of September 25, 1992, from Commission counsel to the Board.

91. Counsel for the respondents, on their behalf, indicated that the notice to the media prepared by the Commission, as above set out, was

acceptable to the respondents provided that the notice includes language acceptable to the respondents prominently displayed highlighted, outlining the limitations that have been placed upon the media by the Chairman and advising that the public is to be informed only of the date, time and location of the Human Rights proceedings. [Emphasis in the original.]

102. Counsel objected to "any attempt to relitigate [the] issues" raised in R. v. Canadian Newspapers Co. Ltd. and added:

. . . in any event, the freedom of the press guarantee under the Charter is subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The limitations placed on the media by the Interim Decision and sought to be placed on it at this point by the respondents clearly constitute a justifiable limitation contemplated by s. 1 of the Charter.

Counsel for the respondents objected to any notification to the public that would

publicize the complainant's allegations, [as] even a summary of those allegations, does precisely what the respondents argued successfully against.

113. It was submitted that:

To inform the public of the nature of the complaint communicates only one version of events. The majority of the public will never come to know the other side of the story, i.e., the respondents' position, because the reality is that the majority of the public does not attend these types of proceedings. Rather the public will draw its own conclusions based on what is reported in the media. It is this tendency to prejudge which the respondents had cautions against in bringing the motion in the first place. [Emphasis in the original.]

124. In dealing with the submission by counsel for the Commission that the inability to communicate the nature of the allegation to the public prevents the public from making an "informed decision as to whether an issue is of such importance that it requires participation by the individual or community who has an interest in the inquiry," counsel for the respondents submitted:

With all due respect, an "informed decision" is not one which is based on only one side of the story. Fairness dictates that members of the public that come to the hearing do so with an open mind as opposed to having pre-judged the merits.

135. Counsel submitted that there was a

distinction between notifying the public of the hearing as opposed to using the media as a means of "advertising." . . . If members of the community are truly interested in attended [sic] public hearings they are free to do so and can determine for themselves at the hearing whether the issue is of sufficient interest or concern to them so as to warrant continued attendance.

146. In response to counsel for the Commission's suggestion that lack of sufficient information to the public "may prevent persons from coming forward who may have relevant evidence on behalf of the complainant or the respondents," counsel for the respondents submitted that:

Public hearings are not, and should not, be used as a tool to gather evidence. As a rule counsel does not go into a hearing unprepared with the hopes that an unknown witness will emerge from the crowd. Counsel's ability to fully prepare his/her case has absolutely nothing to do with who ultimately chooses to attend the public hearing and is in no way jeopardized by the failure to provide the public with a summary of the allegations in advance of the hearing. The purpose of conducting an open hearing is an educational one. That purpose does not require advance notice of the allegations. The educational objectives can be satisfied both during and after the conclusion of the hearing.

157. Counsel for the respondents submitted that:

. . . non-disclosure of the nature of the complaint to the public does not result in an in-camera hearing. The hearing is very much open to the public and the media and those who are truly interested will take the initiative to attend.

RESPONSE TO THE SUBMISSIONS OF COUNSEL FOR THE RESPONDENTS BY COUNSEL FOR THE COMMISSION

16In a letter to the Board dated October 9, 1992, counsel for the Commission made the following submissions in reply to the submissions made on behalf of the respondents:

1. Counsel referred to Naugler v. N.B. Liquor Corp. (1976), (N.B. Bd.Inq.) [unreported] where the Board stated that the Commission may notify the media of the fact that a Board of Inquiry has been appointed, the nature of the complaint, and the time and the place of the hearing, and referred to the statement of the Board that this information must be made available to the public in order for the public to have an opportunity of observing the hearing itself.

172. In response to the position taken on behalf of the respondents that notice of allegations for a public proceeding constituted "one side of the story," counsel for the Commission submitted that it was

. . . standard practice, not only for notice of Human Rights Boards of Inquiry proceedings, but for public notice of any other type of proceeding, be it administrative, civil, or criminal. Allegations are something which require proof. The public understands this.

183. Counsel argued that should the respondents conclude that the information is "one-sided," they could " . . . provide the media with a response . . ."

194. Counsel rejected

. . . the respondents' submission that the Commission's notice to the media or public is a means of "advertising." The copy of the attached notice was prepared by our Communications and Education Unit. This unit prepares notices for all Boards of Inquiry proceedings consistent with the developed and established practice that respects the needs of all parties in its efforts to inform the public . . .

205. Dealing with the subject of a public hearing, counsel for the Commission stated:

The Commission does not suggest that a hearing is open to the public in order to gather evidence for its case. That was not the nature of the Commission's submissions. However, one of the reasons that a hearing is open to the public and open to public scrutiny is to ensure that the evidence which comes forward is the truth. Therefore, it is imperative that persons have sufficient notice of the nature of the proceeding to ensure that this function may be fulfilled.

There is no educational value in stating simply that a Board of Inquiry proceeding is about to take place. The logical question that flows from that information is "what is the inquiry about?"

216. In response to the respondents' rejection of the idea that non-disclosure could cause unfairness to the complainant, Commission counsel stated:

In the Commission's original submission, it was argued that Ms. Carere feels the respondents have impaired her dignity and reputation as a professional in the Guelph community and have caused her to suffer greatly. (p. 4, para. 8) It was further submitted that it is essential to Ms. Carere that her professional and personal reputation be repaired and also be seen to be repaired in the community in which she feels her reputation has been destroyed (supra). Further restrictions on the content of the notice will defeat the purpose of a public hearing and result in unfairness of process to Ms. Carere.

Chairperson MacKay found it to be of fundamental importance that human rights hearings be open to public scrutiny because those who suffer discrimination are more vulnerable and suspicious. Through the process of an open hearing, Ms. Carere, as well as the public, can be assured of fairness and the application of justice. Ms. Carere will continue to be regarded as vulnerable and suspicious by the Guelph community unless the public has been made aware that a hearing is to take place to adjudicate her complaints of discrimination in an open proceeding. The Board has concluded that there were insufficient reasons to warrant an in-camera hearing or a full publication ban. It is therefore submitted that the Board ought to reject any further restrictions proposed by the respondents in their submissions.

227. Counsel also objected to the submission made by counsel for the respondents with respect to seeking the "approval from them as to the wording or content of any notice to the public." It was submitted that

This practice would impinge greatly on the Commission's ability to report on proceedings in the future should the Commission be required to seek approval from respondents or complainants alike in the performance of its educative function. It would also raise suspicions of bias from those parties whose approval was not sought. The Commission will provide governing portions of the Board's order to the news media.

SUBMISSIONS OF THE COMPLAINANT, MS. JANE CARERE

23Ms. Carere also responded to the submissions of counsel for the respondents, by a letter to the Board dated October 13, 1993 [sic], in which she made the following submissions.

241. She added her "own perspective" as to the issue of "”˜disclosure' and ”˜clarification'." In her submissions Ms. Carere stated her position as to the nature of sexual harassment and as to its being a "terrible problem" for a large and significant portion of the population, citing a number of sources, including a survey published in 1983 by the Canadian Human Rights Commission, and an Angus Reid and Southam News poll in October 1991. It was Ms. Carere's position that the " . . . hearing would be of sufficient interest to a large segment of the population and not to a small segment of the population and not to a small group of voyeuristic individuals."

252. She also referred to Aggarwal, Sexual Harassment in the Workplace, as a source for her position that "sexual harassment is not about sex, but about the power that men have over women." Ms. Carere requested that I deny a ban as to the "specifics" of her complaint.

DISCUSSION

261. In the Board's order, at pp. 10–11 [sic] [D/243, para. 21] of its Interim Decision, quoted above, the Commission was permitted to notify the news media of the Board's appointment and of the time and place of the hearing and the nature of the complaint. The draft notice to the media prepared by the Commission and enclosed with its submission contains a place for the insertion of the date, time and location of the hearings. It also contains a brief statement of the nature of the complaint. The Board regards the notice as being in compliance with its order. In fact, the respondents find the draft notice acceptable to them, subject to the inclusion of language outlining the limitations that have been placed upon the media by the Board. The respondents' concern is limited to having the media made aware of the restrictions placed on it.

272. If the publicity ban ordered barring the news media from reporting the proceedings until the release of the Board's decision, subject to the right of the Commission to notify the news media that a Board had been appointed along with the time and place of the hearing and nature of the complaint, is not included in the notice, the media might, inadvertently, report on the proceedings in violation of the order.

283. The Board has considered the respondents' objection "to disclosure of the nature of the complaint [by the media] in any form" (emphasis in original), and it does not regard such a limitation as being within the intent of its original order. It is essential that the members of the public know what the inquiry is about. The Board has concluded that the concerns of all parties can best be addressed by limiting the statement of the complaint that can be published by the media to that contained in the draft statement. It is unrealistic to expect the public to make an informed decision as to whether to attend the hearing unless they have some idea as to what it is about.

294. The order of the Board will enable the media and interested members of the public to attend the hearing. Once the hearing has been completed, and after the Board's decision is released, the matter can be fully reported upon and commented upon in the media.

DECISION

30In reply to the request for directions:

(i) The nature of the complaint that the Board is entitled to communicate to the news media is as set out in the draft notice.

(ii) The scope of the Board's order did not prohibit the news media from reporting the time and place of the hearing as well as the nature of the complaint as set out in the draft notice.

31The Board further orders that the communication to the news media prominently display the limitations that have been imposed by the Board with respect to the reporting of the proceedings until the release of its decision, but the ban does not prevent the media from informing the public of the time and place of the hearing and of the nature of the complaint as set out in the draft notice.