Drummond v. Tempo Paint and Varnish Co. (No. 1)
1994-06-21
Ontario Board of Inquiry
Ena Drummond
Complainant
and
Ontario Human Rights Commission
Commission
v.
Tempo Paint and Varnish Co. a Division of Towers Chemical Ltd., Bernard Jakobson, H. Kerr, Osvar Boateng and Nana Osei-Yaw
Respondents
February 27, 1990
June 21, 1994
Before:
Ontario Board of Inquiry, K. Laird
Comm. Decision No.:
628
Appearances by:
L. Wise, Counsel for the Complainant
A. D'Silva, Counsel for the Commission
I. Balter, Counsel for the Respondent Tempo Paint and Varnish Co., B. Jakobson and H. Kerr
A. Irwin, Counsel for the Respondent Oscar Boateng
PROCEDURE — procedural fairness — delay and lack of procedural fairness as abuse of process — notice not given to interested party — JURISDICTION — human rights commission fails to attempt settlement
Summary: This is a decision on preliminary motions made by the respondents in a complaint made by Ena Drummond alleging discrimination in employment because of sex and sexual harassment.
The respondents argue that the complaint should be dismissed because the Board of Inquiry lacks jurisdiction and because it would be an abuse of process to proceed.
The respondents argue that the Board of Inquiry lacks jurisdiction because it failed to locate and attempt settlement of the complaint with two of the individual respondents, namely Mr. Osei-Yaw and Mr. Boateng. The respondents argue that a Board of Inquiry cannot be appointed unless the Commission has investigated a complaint, and attempted and failed to settle it. Since the Commission could not locate Mr. Osei-Yaw and Mr. Boateng prior to the appointment of the Board of Inquiry, and consequently did not attempt to settle the complaint with them, the respondents argue that the Board of Inquiry lacks jurisdiction to proceed.
However, the Board of Inquiry rejects this argument. It finds that it is illogical to argue that where the Commission fails to locate one of a number of respondents, the failure to investigate and attempt to settle will deprive the Board of Inquiry of jurisdiction to proceed against the other respondents. If the disappearance of a respondent were fatal to the jurisdiction of a Board of Inquiry, it would be very much in the interests of a visible respondent to encourage other respondents to avoid service of the complaint.
The Board of Inquiry finds that the Commission is not under a separate duty to investigate and attempt to settle in respect of each respondent. The duty of the Commission is to fairly investigate each complaint, not each respondent.
The Board of Inquiry agrees, however, that it would be an abuse of process to proceed against one of the respondents, Mr. Boateng who did not know of the complaint until a day before the hearing.
The Commission made a number of efforts to serve Mr. Boateng. However, the Board of Inquiry is satisfied that no information reached Mr. Boateng about the complaint when he could have participated in the investigation and settlement procedures. Because of this, the proceedings against Mr. Boateng are dismissed.
Proceedings against the other respondents will continue.
Cases Cited
Burns v. South Muskoka Hospital Board (June 1994), (Ont. Bd.Inq.) [unreported]: 19
Commercial Union Assurance Co. v. Ontario (Human Rights Comm.) (1987), 1987 CanLII 4092 (ON HCJ), 59 O.R. (2d) 481, 1987 CanLII 8491 (ON HCJ), 9 C.H.R.R. D/5140 (H.C.J.); (1988), 1988 CanLII 4589 (ON CA), 63 O.R. (2d) 112, 9 C.H.R.R. D/5144 (C.A.): 39, 42
Crane v. McDonnell Douglas Canada Ltd. (1993), 1993 CanLII 16506 (ON HRT), 19 C.H.R.R. D/422 (Ont. Bd.Inq.): 19
F.W.T.A.O. v. Ontario (Human Rights Comm.) (1988), 1988 CanLII 4794 (ON HCJ), 10 C.H.R.R. D/5877 (Ont. Div.Ct.): 36
Findlay v. Mike's Smoke and Gifts (No. 4) (1993), 1993 CanLII 16461 (ON HRT), 21 C.H.R.R. D/19 (Ont. Bd.Inq.): 8, 15
Ghosh v. Domglas Inc. (No. 1) (1991), 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16 (Ont. Bd.Inq.): 18
Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561, 96 D.L.R. (3d) 14: 36
Hyman v. Southam Murray Printing (No. 1) (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.): 8, 18
Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 10 C.H.R.R. D/6205: 13
Lampman v. Photoflair Ltd. (1992), 1992 CanLII 14284 (ON HRT), 18 C.H.R.R. D/196 (Ont. Bd.Inq.): 17, 22
Mayang v. Al-Ben-Gros Holdings Ltd. (August 3, 1993), (Ont. Bd.Inq.) [unreported]: 18
Meissner v. 506756 Ontario Ltd. (1989), 1989 CanLII 9068 (ON HRT), 11 C.H.R.R. D/94 (Ont. Bd.Inq.): 19
Naraine v. Ford Motor Co. of Canada (No. 1) (April 21, 1994), (Ont. Bd.Inq.) [unreported]: 8, 15
Ontario (Ministry of Health) v. Ontario (Human Rights Comm.) (1993), 1993 CanLII 5604 (ON CTGDDC), 20 C.H.R.R. D/421 (Ont. Ct. (Gen.Div.)): 39, 42
Schofield v. Oshawa General Hospital (1993), 1993 CanLII 16438 (ON HRT), 20 C.H.R.R. D/391 (Ont. Bd.Inq.): 39, 42
Simms v. Seetech Metal Products (1993), 1993 CanLII 16460 (ON HRT), 20 C.H.R.R. D/477 (Ont. Bd.Inq.): 18, 19
Siung v. Geiger International Ltd. (No. 2) (July 6, 1993), (Ont. Bd.Inq.) [unreported]: 14
Legislation Cited
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 32(5): 11
s. 32(6): 11
s. 33(1): 11
s. 36(1): 9
s. 39(1): 8
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 23(1): 16, 25
1. COMMENCEMENT OF PROCEEDINGS
1On February 14, 1994, I was appointed pursuant [to] s. 38(1) of the Human Rights Code [R.S.O. 1990, c. H.19] to form a Board of Inquiry to hear and decide the complaint of Ena Drummond, dated February 27, 1990, alleging discrimination in employment on the basis of sex and sexual harassment. The complaint named as respondents: "Towers Chemicals; Bernard Jackabson [sic] — Owner; Nana Yaw — Gen. Mgr., H. Kerr — Supervisor; O. Boteny — General Helper." Counsel have agreed that the respondents should be correctly named as Tempo Paint and Varnish Co. (Division of Towers Chemical Ltd.), Bernard Jakobson, Hugh Kerr, Nana Osei-Yaw and Oscar Boateng.
2The hearing in this matter was commenced on March 16, 1994. In attendance at the hearing were: Ena Drummond, represented by Leonard Wise, Alan D'Silva, representing the Ontario Human Rights Commission, Bernard Jakobson and Hugh Kerr, represented by Israel Balter, and Oscar Boateng, who was unrepresented at outset of the hearing. It was agreed by all counsel that Mr. Boateng had been advised of the proceedings only the day before. Mr. Balter had prepared two motions for consideration by the Board, but requested an adjournment, apparently on behalf of Mr. Boateng, on the basis that he had not had reasonable notice of the proceedings. During a break in the proceedings, Mr. Boateng retained counsel, Anne Irwin, who sought an adjournment. The motion was granted and the proceedings were adjourned to May 13, 1994, for consideration of all preliminary motions.
2. PRELIMINARY MOTIONS
3Mr. Balter originally brought two motions before the Board: a motion for dismissal of the complaint on the basis that the Board lacked jurisdiction or alternatively that it would be an abuse of process to proceed and, secondly, a motion for disclosure of further evidence. Although cross-examination took place on the affidavit filed in support of the disclosure motion, this motion was withdrawn at the end of the day on May 13, 1994.
4Prior to May 13, counsel for Mr. Boateng served and filed a motion seeking dismissal or a permanent stay of the complaint on the basis that the Board lacked jurisdiction or it would be an abuse of process for the proceedings against her client to continue.
5Cross-examination on the affidavits filed in support of and against the motions took place on May 13. Argument on the preliminary issues was heard on June 3, 1994.
3. PRELIMINARY ISSUES
3.1 Jurisdiction of the Board of Inquiry to Proceed
6It was the position of both respondent counsel that the Board lacked jurisdiction to proceed due to a failure on the part of the Commission to meet its statutory obligation under s. 33(1) of the Code to "investigate a complaint and endeavour to effect a settlement." It was submitted that a duty to fairly investigate and attempt settlement in respect of each respondent should be held to be a condition precedent to the jurisdiction of the Board to hear and decide the complaint of Ms. Drummond.
7In citing a failure to investigate and attempt settlement, both counsel relied on the undisputed fact that during the Commission's handling of the complaint, there had been no actual contact or discussions of any kind between Commission staff and the two personal respondents alleged to have harassed the complainant in paras. 5, 6, 7, 9 and 10 of the complaint, namely Mr. Osei-Yaw and Mr. Boateng. Mr. Balter argued that, in failing to locate these respondents and to conduct an investigation and settlement attempt in respect of them the Commission had committed an "investigative lapse" which resulted in unfairness to his clients and went to the jurisdiction of this Board. Ms. Irwin argued that the Commission is required by its statute to undertake investigation and settlement efforts in respect of each and every respondent, and the failure to do so in respect of her client deprived this Board of jurisdiction. The fulfilment by the Commission of its duty to investigate and attempt settlement was characterized by counsel for the respondents as a condition precedent to the jurisdiction of a board of inquiry appointed under the Code.
8Both counsel relied on the majority decision in Findlay v. Mike's Smoke and Gifts (unreported, October 1993, Ont. Bd.Inq. [now reported 1993 CanLII 16461 (ON HRT), 21 C.H.R.R. D/19]) in support of their submissions on jurisdiction. In reviewing that decision, this Board prefers the approach taken in the minority decision and notes that the dissent has been followed in a subsequent decision: Naraine v. Ford Motor Company (unreported April 1994, Ont. Bd.Inq.). I do not accept that fulfilment by the Commission of its statutory duty to investigate and attempt settlement constitutes a condition precedent to the jurisdiction of a board of inquiry subsequently appointed by the Minister of Citizenship. Although the Code does give the Commission certain duties in respect of its handling of complaints, I find nothing in the language of statute to make the jurisdiction of the Board dependent on the performance by the Commission of its responsibilities. On the contrary, as was noted in the decision in Hyman v. Southam Murray Printing (No. 1)(1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 at D/621, para. 5619, the Code assigns to boards of inquiry a separate and "statutorily defined task of undertaking an inquiry to ascertain certain facts." Section 39(1) of the Code provides:
39(1) The board of inquiry shall hold a hearing,
(a) to determine whether a right of the complainant under this Act has been infringed;
(b) to determine who infringed that right; and
(c) to decide upon an appropriate order under section 41,
and the hearing shall be commenced within thirty days after the date on which the members were appointed.
9Section 39(1) must be read with s. 36(1) which provides that it is the "subject-matter of the complaint" which is referred to a board of inquiry. The primary jurisdiction of a board of inquiry is clearly to consider the issues raised in the referred complaint and to determine whether the complainant's rights have been infringed.
10The criteria which the Commission must consider in requesting the appointment of a board of inquiry are set out in s. 36(1) as follows:
36(1) Where the Commission fails to effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may request the Minister to appoint a board of inquiry and refer the subject-matter of the complaint to the board.
11Section 36(1) sets out the three requirements to be met prior to requesting the appointment of a board of inquiry: that the Commission ha[s] failed to effect a settlement; that it appear[s] to the Commission that the procedure is appropriate; and that it appear[s] to the Commission that the evidence warrants an inquiry. The sufficiency of the Commission's efforts to settle are not relevant to the criteria set out in s. 36(1); what is required is that there is a failure to achieve settlement. Moreover, fulfilment of the Commission's s. 33(1) duty to investigate a complaint is not set out as any kind of precondition for requesting a board. Indeed, the Code sets out circumstances in s. 32(5) and (6), where a board can be requested when an investigation cannot proceed because a party is not co-operating. In these circumstances, not only will the investigation be incomplete, but no settlement discussions are likely to have taken place with any of the parties, and certainly not with the unco-operative party. It cannot have been intended that the failure to fully investigate and attempt settlement in this kind of a case would deprive the subsequently appointed Board of jurisdiction.
12It appears equally illogical to argue, as was done in this case, that where the Commission fails to locate one of a number of respondents, the failure to investigate and attempt settlement in respect of the missing respondent will deprive the Board of the jurisdiction to proceed against the other respondents. If a respondent cannot be located, it may not be clear whether he or she is avoiding service of the complaint or is simply unaware. It would be inconsistent for the Code to provide a mechanism for a board to be appointed forthwith in cases where a respondent was not co-operating with the investigation, but to reward a respondent who manages to evade service during the investigation stage by making their participation in investigation a condition precedent to the jurisdiction of a subsequently appointed board of inquiry. The absence of a respondent may well affect the ability of the Commission to present its case, and may be relevant to issues of fairness, remedy and costs. However, it would not be consistent with the enforcement scheme in the Code if the failure to investigate and discuss settlement with a missing respondent deprived a board of inquiry of jurisdiction either in respect of other respondents, or the evasive respondent if subsequently found.
13Moreover, if the disappearance of a respondent were fatal to the jurisdiction of a board of inquiry, it would be very much in the interests of a visible respondent to encourage other respondents to avoid service of the complaint, as the unavailability of the others would undermine the board's jurisdiction to proceed against even the one respondent who had been contacted. Counsel for the Commission pointed out that the Commission often has difficulty locating respondents, and referred to Janzen v. Platy Enterprises Ltd. (1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 [10 C.H.R.R. D/6205]) as having gone to the Supreme Court of Canada on the issue of whether sexual harassment constituted sex discrimination without the harasser having been found and participating in the proceedings.
14It follows that I do not accept the argument of Ms. Irwin that the Commission is under a separate duty to investigate and attempt settlement in respect of each respondent, and that failure to direct its efforts to each separate respondent will deprive an appointed board of jurisdiction. The duty of the Commission is to fairly investigate a complaint, not each respondent. In most circumstances, fairness will require separate investigation and settlement efforts in respect of each respondent, but there may be situations where that is not the case. For example, where one party refuses to participate in any settlement discussions, the Commission may determine that there is no possibility that the complaint can be fully settled, and may appropriately request the appointment of a board: Siung v. Geiger International (unreported, July 6, 1994; Ont. Bd.Inq.). Moreover, even in circumstances where it could be argued that the Commission had inappropriately or unfairly ignored a particular party, the failure would not in my view affect the jurisdiction of a subsequently appointed board.
15In circumstances where a party to a human rights complaint believes that the Commission has failed in respect of a statutory duty or duty of fairness in its handling of a complaint, the most appropriate remedy may be for that party to seek judicial review of the conduct of the Commission, as is suggested in the dissent in Findlay, supra, and discussed in Naraine, supra. Before a board of inquiry, the performance by the Commission of its duties under the Code may be relevant to issues of abuse of process, or to remedy or costs, but I find no statutory support for the position that the jurisdiction of a board of inquiry is dependent on the Commission's performance of its statutory responsibilities prior to requesting appointment of a board. Accordingly, I dismiss the motion of the respondents that this Board determine that it is without jurisdiction and proceed to consider the further submissions with respect to abuse of process.
3.2 Abuse of Process
16It was submitted by both respondent counsel that, if the Board did not determine that it lacked jurisdiction, it should nonetheless dismiss the complaint or permanently stay the proceedings on the basis that it would be an abuse of process for the hearing to continue. Counsel submitted that the authority of the Board to make such an order was to be found in s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which states:
A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
17The section gives a board of inquiry the discretionary power to make an order to prevent abuse of its processes. There is, at least in the view of this Board, some question as to whether this section was intended to support a broad power to dismiss for abuse of process during the Commission's handling of a complaint, and in this regard I noted in particular the discussion of this issue in Lampman v. Photoflair (1992), 1992 CanLII 14284 (ON HRT), 18 C.H.R.R. D/196 at D/201. However, for the purposes of the determination before this Board, it is accepted that the authority under s. 23(1) is wide enough to support termination of a proceeding against a particular respondent in circumstances where the unfairness to that respondent is such that the integrity of the process would be undermined by a continuation.
18It is noted that the threshold level for finding abuse of process in a proceeding under the Code has been held to be high: Simms v. Seeburn Metal Products Ltd. (unreported, April 1993 [now reported (sub nom. Simms v. Seetech Metal Products) 1993 CanLII 16460 (ON HRT), 20 C.H.R.R. D/477]); Hyman v. Southam Murray Printing Limited, supra; Ghosh v. Domglas Inc.(1991), 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16; Shreve v. City of London [sic] (unreported, August 1992); Pabito v. Al-Ben Holdings [Mayang v. Al-Ben-Gros Holdings Ltd.] (unreported, August 1993).
19In determining whether it would be an abuse of process to proceed, consideration must be given not only to the rights of the respondents, but also to the public interest in the enforcement of human rights and to the rights of the complainant to a hearing into the issues raised in her complaint. The deficiencies in the process leading up to the present proceeding are not in any way the fault of the complainant. As has been noted in other decisions of boards of inquiry facing issues of irregularity or delay during the Commission's handling of a complaint, there are competing issues of fairness at stake in cases such as this: see in particular Crane v. McDonnell Douglas (unreported, January 1993 [now reported 1993 CanLII 16506 (ON HRT), 19 C.H.R.R. D/422]); Meissner v. 506756 Ontario Ltd. (1989), 1989 CanLII 9068 (ON HRT), 11 C.H.R.R. D/94; Burns v. South Muskoka Hospital Board (unreported, June 1994); Simms v. Seeburn Metal Products Ltd., supra.
20With this background, it is necessary to consider the submissions of each respondent counsel separately to determine if the proceedings should be stayed or the complaint dismissed against either the corporate respondent and its related personal respondents or the personal respondent, Mr. Boateng.
3.2.1 Submissions of Counsel for Corporate Respondent and Bernard Jakobson and Hugh Kerr
21In arguing that the complaint should be dismissed or stayed against his clients on the basis of abuse of process, Mr. Balter submitted that they had been prejudiced by the delay in the proceedings and by the failure to locate and investigate the other personal respondents. Initially, the motion relied on the fact that neither Mr. Boateng or Mr. Osei-Yaw had been notified of the hearing and would be available. After Mr. Boateng was served and in attendance, Mr. Balter argued the delay prejudiced his clients in having resulted in the unavailability of Mr. Osei-Yaw.
22The facts establish that a period of four years passed between the filing of the complaint and the appointment of this Board of Inquiry. This can only be characterized as a disgraceful delay: human rights legislation in this province will only have purpose if the agency charged with its enforcement has the ability to undertake its statutory responsibilities in a timely and effective manner. However, to dismiss this complaint on the basis of passage of time alone, without demonstrated actual prejudice, would deny the complainant a hearing without preventing any anticipated impairment of the respondents' rights to a fair hearing. The test adopted by numerous boards of inquiry in considering motions for dismissal on the basis of delay is that the discretion to dismiss a complaint under s. 23(1) of the Statutory Powers Procedure Act should only be exercised in favour of respondents if the passage of time has made it impossible for the Board to determine if a right under the Code has been infringed, or if the respondents can show actual prejudice attributable to the delay. See Lampman v. Photoflair, supra, at D/201.
23Without necessarily adopting that test in its entirety, I find the motion brought by Mr. Balter must fail on the basis that actual prejudice to the corporate respondent and related personal respondents has not been demonstrated. Mr. Jakobson, referred to as "President of Tower Chemicals," names in his affidavit at least eight potential employee witnesses, all but one of whom are, according to his oral evidence, still employees. With Mr. Boateng now available as a witness, the only absent witness brought to the attention of the Board is Mr. Osei-Yaw. At this point, I am not satisfied that the absence of this witness will cause prejudice to the other respondents represented by Mr. Balter. If, at any point in these proceedings, Mr. Balter believes there is a basis to renew this motion for dismissal on the basis that actual prejudice can be demonstrated, this Board will certainly entertain such a motion.
24The finding that no prejudice has been demonstrated with respect to these respondents makes it unnecessary for this Board to consider the further evidence which the Commission sought to introduce immediately prior to the commencement of argument with respect to an alleged lack of co-operation on the part of Mr. Jakobson in the investigation. Evidence of obstruction of an investigation by a respondent might well be held to prevent that respondent from relying on delay as the basis for a stay of proceedings. However, where as in our case, no actual prejudice has yet been shown to result from the delay, there is no need to consider whether the respondent contributed to that delay by his conduct. If Mr. Balter renews this motion at any point in the hearing on the basis that evidence of actual prejudice has come before the Board, the further evidence of the Commission will be admitted.
3.2.2 Submissions of Counsel for Mr. Boateng
25The sole remaining issue is whether it would be an abuse of process for the proceeding to continue as against the personal respondent Mr. Boateng. Counsel for Mr. Boateng has submitted that the Board should find that it would be impossible to have a fair hearing and, in addition, that it would be unfair to have a hearing at all, in respect of the allegations against Mr. Boateng. It was the submission of counsel that the Board should accordingly exercise its discretion under s. 23(1) of the Statutory Powers Procedure Act to dismiss the complaint against Mr. Boateng. Ms. Irwin pointed out that a dismissal as against Mr. Boateng would not affect the Commission's right to proceed against the other respondents, and that her client would remain available as a witness.
26The evidence of Mr. Boateng, given in his filed affidavit and in cross-examination, is that he was never notified, or in receipt of, the complaint prior to the day before the hearing commenced. He responded to questions in a generally straightforward manner and was not inconsistent under questioning. Mr. D'Silva questioned his credibility on the basis of evidence of Mr. Jakobson that Mr. Boateng had been fired after falsifying his time records, and on the basis of his criminal conviction despite his plea of not guilty.
27In reply, the Commission filed an affidavit of an articling student setting out some of the efforts made to serve Mr. Boateng with the complaint during the investigation, as well as efforts made to locate him subsequent to the appointment of this Board. Unfortunately, each time service of the complaint was attempted, the address used was no longer current. With one exception, there was no evidence given in the affidavit or in cross-examination, during which the witness had reference to the Commission's investigation file, to indicate that the complaint ever actually came to the attention of Mr. Boateng. The witness acknowledged that there was no indication that Commission staff had any contact with the respondent during the course of the investigation, and the file forwarded to the Board of Inquiry office indicated that addresses for both Mr. Boateng and Mr. Osei-Yaw were "unknown."
28The sole piece of evidence, which suggested that Mr. Boateng might have become aware of or received the complaint, was a letter in the Commission file from Mr. Rosen, a lawyer who advised that he had acted for both respondents in criminal proceedings in respect of one of the alleged incidents described in the complaint. Mr. Rosen's letter is dated February 8, 1991, and begins: "Thank you for your letter of January 22 last concerning the above." The reference is to the Commission file number and name. The letter goes on to state:
The writer was the solicitor for Messrs. NaNa and Boateng, 2 co-workers, who were charged with sexual assault in this matter. Both still maintain their innocence in this matter and both are unable to comprehend the nature and scope of the questionnaire provided. Given their involvement, the writer would like to know in any event whether they are compelled to respond. If they are, arrangements will have to be made for an interpreter to go over the forms with them.
I have no further retainer in this matter, but would appreciate receipt of your reply.
29In cross-examination, the witness for the Commission, who admitted that she was not as familiar with the file as the investigating officer would have been, acknowledged that there was no indication that the Commission had replied to this letter. Although the letter from Mr. Rosen on its face appeared to reply to a letter sent directly to him, there was no copy of such a letter found in the file. There [were] copies of letters dated January 22, 1991, in the file addressed to Mr. Osei-Yaw and Mr. Boateng. These letters were sent to an address at which Mr. Boateng no longer lived. It was his testimony that the arrangement that he had made with Canada Post in October 1991 to forward his mail had expired after three months.
30Counsel for the Commission argued that the letter from Mr. Rosen proved that Mr. Boateng had, at the very least, knowledge of the complaint through discussions with Mr. Rosen. He submitted that the most likely scenario was that the January letter reached either Mr. Boateng or Mr. Osei-Yaw, and that they together took a copy of the complaint, and the respondent's questionnaire sent with the letter, to Mr. Rosen for advice. The Commission never received a reply questionnaire from either respondent. Neither respondent made any subsequent attempt to contact the Commission. On the basis of this possible scenario, Mr. D'Silva urged that the complaint against Mr. Boateng not be dismissed as this would allow him to benefit from his own failure to respond to the Commission's investigation.
31Counsel for the complainant, Ena Drummond, also made brief submissions on this point. He argued that the letter indicated that the respondent knew of the complaint and chose not to co-operate in the investigation, and that a negative inference should be drawn from the failure of the respondent to call Mr. Rosen as a witness.
32Ms. Irwin took exception to this latter argument and submitted that, given that the Commission had failed to provide any proof of service, and had acknowledged that there has been no investigation or settlement contract with Mr. Boateng, it was unnecessary for her to produce further evidence. She emphasized that there was no evidence of any efforts on the part of the respondent to avoid service. In her submission, the onus was on the Commission to prove that the respondent had been notified and an investigation had taken place.
33The standard to be met by a party seeking a stay of proceedings on the basis of abuse of process is a high one. The onus of proving that it is an appropriate case for the exercise of the discretion to stay proceedings is on the moving party. If there is any evidence that the party seeking a stay contributed to the delay or the irregularities and omissions complained of, by, for example, refusing to respond to appropriate investigation efforts, then the motion must fail. The onus on the motion is not on the Commission to prove service but on the respondents to establish abuse of process. Failure to give a party the opportunity to have input into the investigation could be the basis for an abuse of process order, but not if the party was aware of a pending complaint and actively avoiding Commission efforts to contact him/her.
34Accordingly, the Board views with some seriousness the failure to produce Mr. Rosen as a witness. Although other explanations are possible and were offered, his letter does suggest knowledge of the complaint on the part of Mr. Boateng.
35Nevertheless, on balance, I find that the negative inference which can be drawn from the letter and the failure to call Mr. Rosen as a witness is not sufficient to impeach the basic credibility of Mr. Boateng's sworn evidence. I am not willing to impeach his credibility based on the criminal conviction or the circumstances regarding his termination by the corporate respondent. His evidence with respect to dates and changes of address is consistent with the evidence of the Commission as to failed attempts at service. There was no evidence that Mr. Boateng had attempted to evade service. The criminal trial took place in August 1990, months before the January 1991 attempt at service, so that even if the January letter came to the attention of Mr. Osei-Yaw in addition to Mr. Rosen, we cannot assume that either had contact with Mr. Boateng. Mr. Boateng testified that, to the best of his knowledge, Mr. Osei-Yaw had returned to Ghana in 1991 and had not returned. He further testified that he had not spoken with Mr. Rosen or had any contact with him since the criminal trial. I accept that it is possible that the letter from Mr. Rosen was written based on his prior knowledge of the sophistication of his former clients and that he may not have actually spoken to Mr. Boateng. On the balance of probabilities, I find that Mr. Boateng did not have knowledge of the complaint prior to the day before the commencement of the hearing.
36Having accept[ed] Mr. Boateng's evidence that he had no knowledge of the complaint prior to the day before the hearing, it is necessary to consider whether the resulting unfairness to him is such as to justify dismissal of the complaint against him. It is settled law that the Ontario Human Rights Commission owes to parties a duty of fairness during its investigation. A respondent must be informed of the substance of the complaint and given an opportunity to respond: F.W.T.A.O. v. Ontario Human Rights Commission (1988), 1988 CanLII 4794 (ON HCJ), 10 C.H.R.R. D/5877. Counsel for the Commission, relying on the case of Harelkin v. University of Regina(1979), 1979 CanLII 18 (SCC), 96 D.L.R. (3d) 14 (S.C.C.), has argued that any unfairness to Mr. Boateng in this case can be cured before this Board of Inquiry. This requires further examination: in what specific ways has the failure to give Mr. Boateng notice of the complaint against him resulted in unfairness and can this unfairness be cured?
37Counsel for Mr. Boateng argued that the failure to notify Mr. Boateng has resulted in gross unfairness in the following ways:
Ӣ He has lost the opportunity to participate with the other parties in the Commission's investigation and settlement process in respect of the complaint and to have his input considered by the Commission in making its decision whether or not to request appointment of a board of inquiry;
Ӣ He has not had any disclosure prior to the first day of hearing in respect of the case which the Commission has against himself or the other respondents;
Ӣ He has not had a timely opportunity to locate witnesses or take steps to preserve evidence.
38It is only necessary to deal with the submissions on the first point. The loss of the opportunity to have any input into the investigation and settlement process at the Commission is a significant deficiency which cannot be cured before this Board. Where there is, as in this case, an admitted total failure to obtain the respondent's input at both the investigation and settlement stages, and where there is a finding that the respondent had no knowledge of the complaint prior to the commencement of the hearing, the unfairness to the respondent undermines the integrity of the hearing process. If the hearing were to proceed as against Mr. Boateng, he would be in a markedly different position from the other respondents present at the hearing who have had an opportunity for input at all earlier stages of the process. There is simply no way to compensate at the hearing for the complete absence of this respondent while the complaint was under consideration at the Commission. The deficiency in the process is extreme and cannot be cured by this Board of Inquiry.
39In making this determination, the Board is particularly mindful of the cases of Re Commercial Union and O.H.R.C. (1987), 1987 CanLII 4092 (ON HCJ), 59 O.R. (2d) 481 [1987 CanLII 8491 (ON HCJ), 9 C.H.R.R. D/5140] (Div.Ct.) leave to appeal dismissed (1988), 1988 CanLII 4589 (ON CA), 63 O.R. (2d) 112 [9 C.H.R.R. D/5144] (C.A.) and Ministry of Health v. Human Rights Commission (unreported, June 30, 1993, Ont. Ct. (Gen.Div.) [now reported 1993 CanLII 5604 (ON CTGDDC), 20 C.H.R.R. D/421]) in which the Divisional Court has considered a failure on the part of the Ontario Human Rights Commission to meet its statutory requirements in respect of applications for reconsideration. These decisions, discussed below, were relied on in Schofield v. Oshawa General Hospital (unreported, Ont. Bd.Inq., February 11, 1993 [now reported 1993 CanLII 16438 (ON HRT), 20 C.H.R.R. D/391]). In Schofield, proceedings were stayed against an individual respondent, alleged to have discriminated on the basis of sex, where he had not been advised of a reconsideration request which reversed a Commission decision not to request a hearing. In that case, like this one, the complaint was not stayed against the respondent employer.
40In the Commercial Union case, supra, the Court of Appeal upheld the decision of the Divisional Court to quash a decision by the Commission to request the appointment of a board and to refuse to remit the complaint to the Commission to again deal with a reconsideration application. The Divisional Court held that the Commission had not complied with its statute in failing to give the respondent an opportunity to respond to a reconsideration application.
41In Kanga, supra, the Divisional Court quashed a decision of the Commission to request the appointment of a board of inquiry on the basis of a number of irregularities including the failure to comply with a statutory requirement to notify the respondent "as soon as is practicable" of a reconsideration application. The Court considered the delay since the events complained of in quashing the appointment of the Board and declining to remit the matter to the Commission. In discussing the eighteen-month delay in notifying the employer of the reconsideration application, the Court noted at p. 10 [D/424, para. 15]:
By that time, important witnesses were no longer in the jurisdiction. Even if that were not the case, however, so much time had passed that the employer would have been entirely justified in assuming that the matter had been closed. It is not fair or reasonable that persons against whom complaints have been made should be left in limbo for such a lengthy period of time.
42In our case, four years and seven months passed after the alleged incident which is the focus of the complaint before service of the complaint was effected on the respondent Mr. Boateng. Mr. Boateng had no opportunity to respond to the complaint before the Commission and must have assumed that, having been incarcerated in relation to the related criminal charges, this chapter of his life was over. Moreover, it should be noted that in Commercial Union, Kanga, and Schofield, supra, the respondents had an opportunity to participate in the investigation and settlement of the complaint prior to the initial decision to not request a board, and were only treated unfairly in respect of the reconsideration process. This must be compared to the complete exclusion of Mr. Boateng from the process before the Commission at all stages.
43Unlike the cases cited above, this is not a case in which the Commission forgot to take a step required by its statute, that is, to give notice of the complaint to a respondent. The evidence is that the Commission has made some inquiries to locate Mr. Boateng and at least two attempts were made during the investigation stage to serve the complaint on Mr. Boateng, each time using an address that was unfortunately no longer current. There is also evidence before me that indicates that, had the Commission taken certain additional steps in its search for the respondent, particularly contacting his parole officer, it might have located the respondent earlier. Mr. D'Silva's office eventually contacted Mr. Boateng by undertaking a motor vehicle search just prior to the hearing. The evidence established that there was some effort on the part of the Commission to locate the respondent; that some steps not taken might have been successful; and that such efforts as were made were not successful until the day before the hearing.
44Counsel for the Commission sought at the hearing on June 3 to introduce additional evidence as to further efforts of the Commission to locate Mr. Boateng. The hearing day on June 3 had by agreement of all counsel been set aside for argument on the motions. At the request of counsel for the Commission, a second day of hearing that week had been cancelled as unnecessary to finish dealing with the motions. At the time that Mr. D'Silva requested cancellation of the June 2 date, he confirmed that only argument on the motion was outstanding; he gave no indication that the Commission would be seeking to introduce reply evidence. When Mr. D'Silva sought on June 3 to introduce further affidavit evidence on attempts to locate Mr. Boateng, both respondent counsel objected. Mr. Balter understandably took the position that he would need an adjournment and an opportunity to cross-examine the witnesses.
45All counsel had received the affidavit material. Mr. D'Silva advised that the affidavit in issue was relevant to the questions raised in cross-examination as to the extent and sufficiency of the Commission's efforts to locate Mr. Boateng, but that it did not provide additional evidence relevant to the question of whether service had in fact been effected at any stage. The Board ruled that the evidence in the affidavit would [be] admissible as appropriate reply evidence, and that if admitted, the opposing counsel should be afforded the opportunity to cross-examine the witness. However, in the interests of having the hearing proceed in a timely fashion, the Board decided to reserve on the question of the relevancy of the evidence to the issues to be determined and to proceed as previously agreed with argument on the motion. Having confirmed with all counsel that the new affidavit evidence did not pertain to the issue of whether service was effected, the Board advised counsel that if, in reviewing the evidence and argument, it was apparent that further evidence as to the efforts made to find Mr. Boateng would be relevant to the decision, counsel would be notified. In that event, the dates previously tentatively set for hearing evidence on the complaint, should it proceed, would be used to allow cross-examination on the affidavit.
46The competency and sufficiency of the search by the Commission are not determinative of the issue before this Board. The question for this Board is whether Mr. Boateng had notice of the pending complaint prior to the hearing and if not, did this result in unfairness such that continuing the proceedings against Mr. Boateng would be an abuse of process. The Commission is not denying that it cannot prove that Mr. Boateng was served with the complaint, and it is not denying Mr. Boateng had no contact with Commission staff and no input into the process during the Commission's investigation and settlement efforts of this complaint. I find that further evidence as to the unsuccessful attempts made by the Commission to find Mr. Boateng would not be relevant to the question that must be decided.
47I accept Mr. Boateng's evidence that he was unaware of the complaint against him until the day before the hearing commenced before this Board. Regardless of any further evidence that may be available as to the extent of the Commission's efforts to find Mr. Boateng, I find that, having accepted his evidence that he was unaware of the complaint, it would be unfair to Mr. Boateng and an abuse of process for this proceeding to continue against him.
48Pursuant to s. 23(1) of the Statutory Powers Procedure Act, these proceedings are hereby terminated in respect of the allegations against Mr. Boateng. The hearing will reconvene June 28, 1994. Counsel for Mr. Boateng will advise her client that he should be available as a witness in the continuing proceedings.