Strauss v. Canadian Property Investment Corp. (No. 1)
1994-09-05
Ontario Board of Inquiry
CHRR Doc. 95-061
Wendy Strauss
Complainant
v.
Canadian Property Investment Corp., Paul MacInnis, Anil Supersad and Brian Doyle
Respondents
Date of Complaint:
October 31, 1990
Date of Decision:
September 5, 1994
Before:
Ontario Board of Inquiry, H.A. Bassford
Comm. Decision No.:
645
Appearances by:
J. Scott, Counsel for the Commission
S. Shivarattan, Counsel for the Respondent A. Supersad
CANADIAN CHARTER OF RIGHTS AND FREEDOMS — application of s. 7 (security of the person) — s. 11 (rights upon being charged with an offence) — HUMAN RIGHTS — applicability of criminal law precedents to human rights law — difference between human rights proceedings and criminal proceedings — JURISDICTION — loss of jurisdiction due to unreasonable delay — PROCEDURE — delay as abuse of process — procedural fairness
Summary: This is a preliminary decision on a challenge to the constitutionality of the Board of Inquiry proceeding to hear and decide a complaint filed against Canadian Property Investment Corp. and Anil Supersad by Wendy Strauss. Ms. Strauss alleges that she was sexually harassed and subjected to sexual solicitation while employed by the respondents.
The respondent Anil Supersad argues that there was unreasonable delay in proceeding with this complaint and that this has caused a violation of his rights to life, liberty and security of the person and to a trial without undue delay as provided in ss. 7 and 11 of the Charter of Rights and Freedoms. The complaint was filed in 1990; the Board of Inquiry was appointed in 1993.
The Board of Inquiry finds that s. 11 does not apply to inquiries under human rights legislation because it refers to matters in which a person is charged with an offence.
Regarding s. 7, the Board of Inquiry considers the decision of the Saskatchewan Court of Appeal in Kodellas v. Saskatchewan (Human Rights Comm.). In that decision, the Court of Appeal ruled that Mr. Kodellas' s. 7 right to security of the person was violated by a long delay in bringing a complaint of sexual harassment to a hearing. The delay caused Mr. Kodellas to experience stigmatization in the community, disruption of family life, anxiety and damage to his dignity and self-respect. The Court of Appeal found that this constituted a violation of his right to security of the person pursuant to s. 7.
The Board of Inquiry rejects this analysis. It finds that other Ontario Boards of Inquiry have declined to follow Kodellas when interpreting the Ontario Human Rights Code. It considers the decisions of the Manitoba Court of Appeal in Nisbett v. Manitoba (Human Rights Comm.) and the Board of Inquiry in Hall v. A-1 Collision and Auto Service to be more helpful and it adopts their reasoning. The Board of Inquiry rules that s. 7 of the Charter has no application to proceedings of a non-penal nature under human rights legislation. Security of the person is simply not affected in these proceedings, which are remedial in nature, and do not involve the potential of incarceration, criminal sanction, or fines.
The motion is dismissed.
Cases Cited
Canadian Airlines International Ltd. v. Canada (Human Rights Comm.) (No. 2) (December 23, 1993), T-2340-92 (F.C.T.D.): 6
Gale v. Miracle Food Mart (No. 2) (1992), 1992 CanLII 14232 (ON HRT), 17 C.H.R.R. D/495 (Ont. Bd.Inq.): 9
Ghosh v. Domglas Inc. (No. 1) (1991), 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16 (Ont. Bd.Inq.): 7
Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Comm.) (No. 3) (1993), 1993 CanLII 16525 (ON CTGDDC), 18 C.H.R.R. D/97 (Ont. Ct. (Gen.Div.)): 9
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.): 9, 14
Kodellas v. Saskatchewan (Human Rights Comm.) (1989), 1989 CanLII 284 (SK CA), 60 D.L.R. (4th) 143, 10 C.H.R.R. D/6305 (Sask. C.A.): 6, 12
Munsch v. York Condominium Corp. No. 60 (1992), 1992 CanLII 14246 (ON HRT), 18 C.H.R.R. D/339 (Ont. Bd.Inq.): 9
Nisbett v. Manitoba (Human Rights Comm.) (1993), 1993 CanLII 3366 (MB CA), 18 C.H.R.R. D/504 (Man. C.A.): 17
R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387: 17
Reference Re Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123: 17, 19
Shreve v. Windsor (City) (No. 2) (1993), 1993 CanLII 16462 (ON HRT), 18 C.H.R.R. D/363 (Ont. Bd.Inq.): 9
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. 7: 2, 9, 17, 20
s. 11: 2, 7
Ontario
Freedom of Information and Protection of Privacy Act, 1987, S.O. 1987, c. 25: 15
Human Rights Code, R.S.O. 1990, c. H.19: 7
1I was appointed as a board of inquiry by the Honourable Elaine Ziemba, Minister of Citizenship, on May 11, 1993, in order to hear the matter of a complaint dated October 31, 1990, by Ms. Wendy Strauss, alleging discrimination in employment on the basis of sex, sexual harassment and sexual solicitation by Canadian Property Investment Corp., Paul MacInnis, Anil Supersad and Brian Doyle. The hearing commenced by conference call on June 8, 1993. There have been six additional hearing days on February 14, 16, 17, 18, May 6 and 19, 1984 [sic]. On February 14, Ms. Jennifer Scott, counsel for the Commission, informed the Board that they would not be proceeding against Mr. Brian Doyle, and that a settlement had been reached with Mr. Paul MacInnis. The hearing has continued with this revised list of respondents.
2On April 12, Mr. Sudeesh Shivarattan, counsel for the respondent, Mr. Anil Supersad, served a notice of constitutional question. The basis contended is that there was an undue and unreasonable delay in proceeding with this inquiry, leading to financial and personal damages and to undue psychological trauma to Mr. Supersad, with the result that his rights under ss. 7 and 11 of 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] were infringed. The remedy requested is the dismissal of the complaint against Mr. Supersad. Arguments of this question were heard on May 6 and 19. This interim decision is with respect to the constitutional question.
3The complaint in this matter was filed on October 31, 1990. This Board was appointed on May 11, 1993, and the hearing commenced on June 8, 1993. The question to be addressed herein is whether the time period of approximately thirty-one months from the filing of the complaint until the start of the hearing constitutes an unreasonable delay in the circumstances of this case such that Mr. Supersad's rights under s. 7 or 11 of the Charter were infringed.
FACTUAL BACKGROUND
4In April 1990, the complainant was employed by the respondent company as a sales and office manager. She alleges that Mr. Supersad made sexually oriented remarks, subjected her to sexual solicitation at several times, and at one time to sexual touching. Her complaint states he remarked at one point, "If we can't work and sleep together, when are you going to leave the company?" She alleges in her complaint that on August 7, 1990, Mr. Doyle, under Mr. Supersad's directions, informed her they were letting her go because her work was unsatisfactory. She was later told the reason for termination was insubordination. She continued to work until August 16, 1990, when her record of employment arrived from the head office, at the end of which day her employment [was] terminated.
5The complaint was filed on October 31, 1990. A respondent questionnaire from CPI Limited, and a letter of response to the complaint from Mr. Allan Papernick, then counsel for Mr. Supersad, were received in January 1991. In December 1991, the case was assigned to Mr. Richard Cushing, who was a member of the Special Task Force, Ontario Human Rights Commission. This was a task force set up to deal with the backlog of cases which the Ontario Human Rights Commission then had before it. Mr. Cushing investigated between this time and the end of November, 1992, when he submitted his case summary.
ANALYSIS
6Mr. Shivarattan relied in his argument upon the judgment in Re Kodellas and Saskatchewan Human Rights Commission (1989), 1989 CanLII 284 (SK CA), 60 D.L.R. (4th) 143, 10 C.H.R.R. D/6305 and upon the F.C.T.D. judgment in Canadian Airlines International Ltd. v. Canadian Human Rights Commission and Belloni (1993). Canadian Airlines is not a Charter case. In that case the Court held that the Canadian Human Rights Commission had breached its duty of procedural fairness in that its delay was unreasonable and that it resulted in prejudice to Canadian Airlines. In reaching this decision the Court used the criteria of unreasonable delay which were set out in Kodellas. Accordingly, it is the reasoning in Kodellas which is relevant in determining the current appeal to the Charter.
A. Section 11 of the Charter
7There has been no argument in the present case to show the applicability of s. 11 of the Charter, nor, as Ms. Scott pointed out, was that section applied in Kodellas. In Ontario it has been held without exception not to apply to inquiry proceedings under the Human Rights Code [R.S.O. 1990, c. H.19]. This is documented clearly by Professor Hubbard in Ghosh v. Domglas Inc.(1991), 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16 at D/23 [para. 47], where he says,
Mr. Hart on behalf of the Commission pointed out that the trial judge in Kodellas . . . had concluded that as inquiry proceedings under the Code were not criminal in nature the person complained about could not be said to have been charged with an offence, and that therefore s. 11(b) has no application to such proceedings . . . In any event, the jurisprudence of this province makes it clear that s. 11(b) of the Charter does not apply in respect of remedial proceedings under the Ontario Code. I consider that point sufficiently settled as to make it unnecessary to do more than list a number of the authorities: Commodore Business Machines Ltd. v. Olarte (1984), 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833; Shepherd v. Bama Artisans Inc. (1988), 1988 CanLII 8890 (ON HRT), 9 C.H.R.R. D/5049; Gohm v. Domtar Inc. (No. 1) (1988), 1988 CanLII 8877 (ON HRT), 10 C.H.R.R. D/5968; Quereshi v. Central High School of Commerce (1987), 1987 CanLII 8495 (ON HRT), 9 C.H.R.R. D/4527; Dennis v. Family and Children's Services of London and Middlesex (1990), 1990 CanLII 12499 (ON HRT), 12 C.H.R.R. D/285 . . . Ontario (Human Rights Comm.) v. Vogue Shoes 1991 CanLII 13168 (ON HRT), 14 C.H.R.R. D/425.
8Given this, I conclude that there is no applicability of s. 11 of the Charter to this case, and that Mr. Supersad's rights under s. 11 have not been violated by the putative delay in proceeding with this case.
9As Ms. Scott pointed out on behalf of the Commission, Kodellas, supra, has not been followed in Ontario. Section 7 has been found to be inapplicable to boards of inquiry proceedings under the Human Rights Code in several recent cases: e.g., Hall v. A-1 Collision and Auto Service (No. 2)(1992), 1992 CanLII 14233 (ON HRT), 17 C.H.R.R. D/204; Gale v. Westinghouse Canada Inc. [sic] (No. 2) (1992), 1992 CanLII 14232 (ON HRT), 17 C.H.R.R. D/495; Munsch v. York Condominium Corp. No. 60(1992), 1992 CanLII 14246 (ON HRT), 18 C.H.R.R. D/339; Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Comm.) (No. 3)(1993), 1993 CanLII 16525 (ON CTGDDC), 18 C.H.R.R. D/97; Shreve v. Windsor (City) (No. 2)(1993), 1993 CanLII 16462 (ON HRT), 18 C.H.R.R. D/363.
10The reasoning has been largely that stated by Professor Backhouse in Gale (p. D/499 para. [20]):
[I]t appears that section 7 of the Charter has no application to remedial proceedings under the Code. There is a fundamental distinction between criminal and quasi-criminal proceedings, in which a person's life, liberty and security of the person may be in jeopardy, and human rights proceedings which are essentially civil in nature . . .
11This has been explicitly applied to Kodellas, supra, by Mr. Kerr in Shreve, supra. There he says (p. D/371 [paras. 62–63]):
I have a great deal of difficulty with the reasoning in Kodellas, supra, and Motorways, supra. The starting point in Kodellas appears to be the view that proceedings on a human right[s] complaint are analogous to criminal proceedings. Thus, for the purpose of s. 7 of the Charter, the Court accords a high value to protection of the procedural rights of the respondent similar to that applied to accused persons, even if s. 11 of the Charter does not directly apply . . .
Proceedings under the Ontario Human Rights Code are civil and remedial, not penal. The inclusion in the Code of the alternative of a prosecution under s. 44 does not convert proceedings under ss. 32–43 into quasi-criminal matters. Thus, the rationale of the decision in Kodellas . . . is simply not applicable under the Ontario Code, if it stands up to scrutiny under the federal and Saskatchewan statutes.
12In reply, Mr. Shivarattan pointed out that most of the cases differed from the present case in that they did not involve allegations of sexual harassment, and that it was this fact that was a key part of Kodellas, supra. In this particular I believe he is correct. This played a significant part in determining the applicability of s. 7 of the Charter in Kodellas. It is made explicit in the concurring judgment of Vancise J.A., wherein he says (p. D/6319 [para. 44858]):
It is necessary to determine whether the holding of the hearing by a board of inquiry appointed under the Code to inquire into these allegations of sexual harassment would be a deprivation of security of the person. It is a formal judicial process with all the attendant exigencies of a criminal or quasi-criminal trial. Mr. Kodellas is not formally on trial in the sense of being accused of a crime, but his actions are central to this inquiry. He has been accused of discriminating against the complainants by sexually harassing them by the commission of sexual assault in their employment. The burden of proof and onus may be different in this inquiry than in a criminal trial, but the effect is the same. Indeed, because the civil standard of proof applies to these proceedings it can be argued that he is in a worse position than he would have been if he had been charged with the criminal offence of sexual assault. He is subject to the same vicissitudes and vexations as a result of these pending proceedings. Here he is subject to further vicissitude and vexation because of the lack of communication by the Commission concerning the result of their investigation. He is left in a state of uncertainty, but nevertheless, the allegations hang over his head. Mr. Kodellas is called upon to defend himself against those allegations. In those circumstances, the stigmatization in the community at large and in the Greek community in particular, the resultant disruption of family life, the anxiety, the damage to his dignity and self-esteem have or could be a deprivation to the security of the person as contemplated by s. 7.
Accordingly, it must be determined whether the circumstances surrounding a complaint under the Ontario Human Rights Code involving sexual harassment potentially bring the case into the ambit of s. 7 of the Charter.
13This matter was investigated in some detail by Ms. T. Brettel Dawson, the Board in Hall, supra. This was a case wherein the complainant alleged sexual harassment in employment. In her decision Ms. Dawson considered the analogy urged in Kodellas, and judged that there was sufficient disanalogy not to apply to cases under the Ontario Human Rights Code.
14In his argument Mr. Shivarattan several times stressed that an allegation of sexual harassment is a very serious one, and that being accused of it carries with it great stigmatization. The comments of Ms. Dawson are relevant here, and, I believe, correct (p. D/210 [para. 33]):
It is true that an allegation of sexual harassment is a serious form of discrimination, but, as the Commission pointed out, allegations of any type of discrimination are serious. In its submission, with which I agree, it would be unhelpful to single out any one ground as particularly egregious or stigmatizing. It is not clear that allegations of other forms of discrimination are viewed as being somehow less egregious or more tolerated.
15Ms. Dawson proceeds to point out several relevant differences between a human rights complaint with a criminal one. These apply to cases alleging sexual harassment as much as to other grounds of complaint. First, criminal charges are laid only after police investigations, but human rights complaints "may be filed as of right" (p. D/210 [para. 36]). Second, the Commission cannot disclose the identities of complainants or respondents during investigations, since it is bound by the Freedom of Information and Protection of Privacy Act, 1987, S.O. 1987, c. 25. Third, a board of inquiry has no power to fine or incarcerate respondents (p. D/211 [para. 40]):
It is well established that human rights legislation is remedial, not punitive, and is directed to dealing with the "consequences of conduct rather than with punishment for misbehaviour."
Fourth (p. D/211 [para. 44]):
While a criminal accused can be subjected to pre-trial custody or stringent bail conditions which have a disruptive effect on personal life, the Commission has no power to affect the behaviour of a respondent pending determination of a matter before a board of inquiry.
16Ms. Dawson states [p. D/211, para. 44], and I agree, that while
a human rights proceeding may cause embarrassment and inconvenience within one's family and community . . . this falls far short of the kind of disruption associated with criminal proceedings.
The context of a human rights proceeding in Ontario is very different from the context of a criminal or quasi-criminal proceeding. Because of the significant disanalogy, a human rights proceeding in a matter of sexual harassment does not have the potential to cause the level of "vicissitude and vexation" as a criminal charge of sexual assault. I accordingly conclude that the reasoning of Kodellas, supra, does not apply to cases under the Code.
17The question of whether complaints of sexual discrimination which are not determined within a reasonable time amount to deprivation of the security of the person under s. 7 of the Charter has recently been addressed by the Manitoba Court of Appeal (Nisbett v. Manitoba Human Rights Commission (1993) (unreported Man. C.A.) [now reported 1993 CanLII 3366 (MB CA), 18 C.H.R.R. D/504] Scott C.J.M. This case involved an appeal from the divisional court [1992 CanLII 8662 (MB QB), 18 C.H.R.R. D/500], wherein Dureaut J. stayed a proceeding under the Manitoba Human Rights Commission, relying therein upon the decision in Kodellas, supra. In overturning this decision Mr. Justice Scott relied in part upon the reasoning of the Supreme Court in R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, and in Reference Re Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123. Both are relevant here.
18In Kodellas, supra, Mr. Justice Bayda relies upon his decision in Beare, supra, for his decision, and stresses the importance of self-respect and dignity in assessing the scope of the right to life, liberty and security of the person (at D/6309 [para. 44802]). In Beare, supra, the Court held that s. 7 of the Charter was violated by the requirement for mandatory fingerprinting of suspects. As Mr. Justice Scott notes, in reversing this decision, the Supreme Court stated (p. 402),
The Court of Appeal, we saw, found that the impugned provisions constituted an infringement of the right guaranteed by the opening words of s. 7, majority because fingerprinting offends the "dignity and self-respect" of a[t] least those persons who because of their self-perception or the perception of the community would feel demeaned by being thus treated. In short, the majority thought that being subjected to fingerprinting was to be treated like a criminal. This approach appears to be broad and indefinite and to introduce an undesirable notion of differentiation among those subjected to the procedure.
19Mr. Justice Scott also quotes from Reference Re Criminal Code, supra, wherein the Supreme Court stated (p. 1170):
If liberty or security of the person under s. 7 of the Charter were defined in terms of attributes such as dignity, self-worth and emotional well-being, it seems that liberty under s. 7 would be all inclusive. In such a state of affairs there would be serious reason to question the independent existence in the Charter of other rights and freedoms such as freedom of religion and conscience or freedom of expression.
20Mr. Justice Scott concludes as follows (p. 16 [D/509, para. 26]:
With the greatest respect to the Court in Kodellas, it is my opinion that sec. 7 of the Charter has no application to proceedings of a non-penal nature under human rights legislation . . . The reasoning of the Supreme Court in R. v. Beare and Reference Re Criminal Code leads me to conclude that the view taken in Kodellas that the potential "stigma" attached to parties involved in human rights proceedings triggers the application of sec. 7 of the Charter is no longer tenable . . . Security of the person is simply not affected in these proceedings.
I agree with this conclusion. For this reason, and for the reasons given above, I hold that s. 7 of the Charter does not apply to remedial proceedings under the Human Rights Code. It accordingly does not apply in the case currently before me.
DECISION
21In light of this conclusion it is unnecessary to consider the question of whether there has been an unreasonable delay in proceeding with this case. Sections 7 and 11 of the Charter do not apply to remedial proceedings under the Code. The putative unreasonable delay thus did not infringe Mr. Supersad's rights under those sections of the Charter. The complaint should not be dismissed on the grounds adduced in the constitutional question, and the respondent's motion is dismissed. The rest of the hearing on the merits of the complaint will go forward.